JUDGES LINE UP, LASH OUT AT LACK OF ''DSCRETION' IN PROPOSITION 36

An unusually candid jurist once remarked that a judge is just a lawyer who
knew a politician.

Indeed, many state judges were politically active attorneys before being
appointed to the bench by a governor.

Once they don their robes, though, most judges prefer the almost academic
atmosphere of the courtroom to the gritty world of politics.

This election season, jurists from throughout the state have left their
courtrooms to stand in front of cameras and speak out against Proposition
36, the drug diversion initiative. They have become its most effective
opponents.

One hundred and sixty four judges, including 57 in San Diego County, have
signed petitions criticizing the ballot measure.

One judge, Stephen Manley, president of the California Association of Drug
Court Professionals, signed the ballot argument against Proposition 36.

San Diego County Superior Court Judge James Milliken even contributed $250
to defeat the measure.

At the heart of their opposition is concern over judicial discretion.

Judges say Proposition 36 would take away their ability to toss addicts in
jail for short sentences. They believe this threat helps them scare addicts
straight in drug courts.

The measure would divert some nonviolent drug users and parole violators
from jail to treatment and provide $120 million a year to boost the
treatment budget.

Addicts could still end up in jail, but only if they violate the terms of
probation, which judges are allowed to set.

The judges' activity raises questions about the overlap between campaigns
and courtrooms. Under California's judicial rules, judges are allowed to
voice opinions on political issues that affect the administration of justice.

Proposition 36 clearly does so.

The problem for judges who voice strong opposition to the drug diversion
initiative or any other ballot measure is that they can create an
appearance of a conflict. What if the law passes and they have to implement it?

Milliken, who has a long history of speaking out on ballot measures that
affect the judiciary, doesn't believe their will be any trouble -- even if
Proposition 36 passes.

"We'll follow the law," he said.

Still, many judges agonize over whether they should take a stand.

Earlier this year, juvenile court judges persuaded the California Judges
Association to come out against Proposition 21 because it would limit a
judge's role in deciding whether or not juveniles should be tried as adults
for certain crimes.

"We thought it took away a long-standing tradition in juvenile courts,"
said Rob Waring, legislative counsel for the association.

Waring said the association tends to shy away from voicing opinions on
bills and ballot measures that involve adult sentencing.

Indeed, most judges were silent on the 1994 ballot measure that took away
more judicial discretion than any other state law -- the "three strikes"
sentencing initiative.

Until the three strikes law was modified, it forced a judge in some cases
to give a longer sentence to a check forger with two residential burglaries
than he would a murderer.

Gerald Uelmen, a Santa Clara University law professor and a judicial
observer, supports Proposition 36, arguing it treats addiction as a medical
rather than criminal problem.

Still, he doesn't believe there are any ethical problems with the judges'
efforts to block Proposition 36.

"My only quarrel with the judges is, where were they when we adopted three
strikes, which has far more impact on the criminal justice system than
Proposition 36?"

Bill Ainsworth covers Sacramento for the Union-Tribune.