The continued quest for justice for Anh Peng Taylor, the 97-year-old immigrant who was stabbed and struck on Post Street in 2021, exposes to the public a little known program of retired temporary judges ruling in our courtrooms. Reform is needed.
During and following the recent judicial election in March, our right to vote for Superior Court judges has been questioned by formidable pillars of power — sitting and retired judges, the press, San Francisco Board of Supervisors President Aaron Peskin, and the bar association. Meanwhile, another set of unelected judges are quietly appointed by other judges and make significant judicial decisions, including in the criminal courts. The most recent example is Visiting Judge Kay Tsenin’s oversized role in the Anh Peng Taylor case granting probation to the assailant, delaying sentencing, and depriving Taylor and community members supporting her the closure and certainty that the case is over.
On March 15, following the defendant’s guilty plea on the attempted murder charge, retired Judge Tsenin rejected the district attorney’s request to sentence the assailant, already a felon, to a 12-year prison sentence. Instead, Judge Tsenin granted the defendant five years’ probation as long as he participated in counseling and drug or mental health rehabilitation efforts in the Intensive Supervision Program.
Since then, the case has proceeded before two other judges. First, Judge Jeffrey Ross, who oversees the Intensive Supervision Program, ruled that state law prohibits the defendant from the program since he was already on probation for two felonies when he attacked Taylor. Later, Presiding Criminal Judge Eric Fleming rejected the defense attorney’s insistence that Judge Ross lacked authority to rule. Judge Fleming also rejected the attorney’s attempt to return the case to Judge Tsenin, who expressed a desire to get it back.
In California, it is a defendant’s right, not a judge’s, to have the same judge accept a guilty plea and impose a sentence. The defendant has waived that right in this case. So why does Judge Tsenin, a visiting judge, still loom large in this case, even stating that she wanted the case back if another judge adjusted the sentence?
Having a judge who is appointed by another judge and not appointed by the governor or elected weakens public accountability.
The California Constitution directive that “judges of superior courts shall be elected” honors the importance of the people’s voice in our judicial system. Occasionally, there is a need to set that imperative aside and appoint temporary judges when there are emergencies, cases involving the judges themselves, widespread conflicts of interest, or overworked judges.
San Franciscans should question whether the court needs to hire temporary and assigned judges at all. (There is also a Temporary Judge Program that selects attorneys with at least 10 years of experience to serve in the areas of traffic, small claims and unlawful detainer settlements.) According to the state, we don’t need them. Every two years, the state Judicial Council ranks California’s 58 counties based on whether they have too many or too few judges to meet their caseload. In the most recent Judicial Needs Assessment in 2022, the Judicial Council estimated San Francisco had 31 percent more authorized judges and commissioners than we needed, based on workload. At the other end of the spectrum, San Bernardino County needed 30 percent more judges to meet the case filing needs of its residents. In virtually every statewide report filed in the past 10 years, San Francisco ranked 49th or lower among the 58 counties in the need for additional judges.
Having a judge who is appointed by another judge and not appointed by the governor or elected weakens public accountability. We can’t vote them out of office because they are not elected. They are subject to evaluation by the presiding judge and the public can file complaints about them. But you will not find any mention of the judicial complaint process or your right to file a complaint anywhere on the Superior Court website. My phone call to the Temporary Judge Program in researching this article went unanswered.
The California courts have yet another category of “subordinate judicial officers” who are authorized to make rulings except in criminal matters. A Judicial Council working group in 2002 explained the reasons why. It’s not that they lack training or experience. The power to sentence a defendant to prison — or, in this case, to grant probation as part of a guilty plea to attempted murder — is too important to be left to an unelected individual who lacks accountability to the public.
In Anh Peng Taylor’s case, a retired and unelected judge’s decision to grant probation has been rejected by two judges, and her actions in the case have delayed a final resolution. Particularly because the need for temporary judges is not based on having too few judges, the San Francisco Superior Court should appoint fewer of them, limit their authority when they are appointed, publicize ways the public can comment on their actions, and stop resisting scrutiny.
Making those reforms are some of the first important steps to honoring the California Constitution that says “judges of superior courts shall be elected. …”