Anatomy of a Sitting Judge’s ‘Astounding’ Loss - Voice of San Diego

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Anatomy of a Sitting Judge’s ‘Astounding’ Loss

In winning with roughly 60 percent of the vote, Matt Brower became the first challenger to knock off a sitting San Diego Superior Court judge since 2002.

 

Matt Brower, a deputy district attorney, won a seat on the Superior Court bench against Judge Gary Kreep. / Photo by Adriana Heldiz

Deputy District Attorney Matt Brower not only bested Judge Gary Kreep in San Diego County’s only contested judicial election earlier this month, he scored a resounding victory.

In winning a six-year term by receiving roughly 60 percent of the vote, Brower became the first challenger to knock off a sitting San Diego Superior Court judge since 2002.

Brower was certainly aided by the fact that Kreep received a “severe public censure” from the state’s judicial watchdog last year for misconduct in the courtroom and during his previous campaign for judge, including promoting the false birther conspiracy against President Barack Obama.

But Brower was also bolstered by the San Diego County Bar Association’s judicial evaluations, as well as support from some of Kreep’s colleagues and Republicans who crossed party lines to endorse a Democrat.

Focus on Misconduct

With Kreep having barely prevailed in his 2012 race and generating negative headlines after the Commission on Judicial Performance’s 2017 discipline of him, four local attorneys decided to challenge the controversial judge.

Brower, who has served as a judge advocate in the Marine Corps Reserve in addition to his six years with the DA’s office, launched his campaign promising to restore ethical conduct to the office.

Kreep’s other challengers were Deputy Attorney General Tim Nader, retired federal prosecutor Steve Miller and defense attorney Victor Manuel Torres.

The candidates showed no qualms about highlighting the censure Kreep received, which was the highest level of discipline short of removal from office.

The Commission on Judicial Performance determined Kreep committed 29 acts of judicial misconduct, most of which occurred very early in his tenure. The panel criticized him in part for inappropriate statements he made in court, such as commenting on the physical appearance of attorneys, and said he “ran his courtroom in a manner that was undignified and suggested bias or prejudgment.”

Karolyn Westfall, a former deputy city attorney in San Diego, testified that one time when she entered Kreep’s courtroom, the judge said, “Speaking of prostitution, here’s Ms. Westfall.”

Kreep also once inquired about whether a deputy public defender was a Mexican citizen. When the attorney replied that she was a U.S. citizen, Kreep responded: “I wasn’t planning on having you deported.”

Brower said in early May that Kreep “has treated women and minorities in an unprofessional and undignified way.”

Despite the criticism, Kreep had the advantage of being the only Republican in the race, and even received the party’s endorsement. He ultimately took the top spot in the June primary, but received just 30.5 percent of the vote.

Brower, who advanced to the general election by finishing in second place with 26.35 percent, said he was encouraged that roughly 70 percent of those who voted in the race made a conscious decision not to back the incumbent.

“What that said to me is we had a really good shot, and it was really anyone’s game,” Brower said. “We were just going to have to work really hard for it.”

County Bar Evaluations

One piece of information Brower could use throughout the general election that only became available late in the primary was the San Diego County Bar Association’s judicial evaluations.

The bar rated Brower as “qualified,” while Kreep was deemed to be “lacking qualifications,” the lowest of the bar’s four ratings.

Kreep was the first sitting judge to receive that designation since DeAnn Salcido in 2010. Salcido won re-election that year but resigned soon after as part of a settlement with the Commission on Judicial Performance due to misconduct.

As for Brower, he highlighted in campaign signs, mailers and his candidate statement distributed to the county’s mail voters that he was the sole candidate the bar said was qualified.

Brower said in an interview the bar’s rating added an “aura of credibility” to his campaign.

The county bar promoted the evaluations by purchasing print, radio and digital ads leading up to the election. It also highlighted its ratings in a press release, on social media and included them in a voter guide it released.

Kristin Rizzo, the San Diego County Bar’s president, said it disseminates its judicial evaluations as widely as possible to help voters make informed decisions.

“The reason we do that is because there really is little information publicly available when it comes to judicial races, so our evaluations are done as a public service,” Rizzo said.

‘The Voters Have Spoken’

Kreep told Voice of San Diego he was not surprised with the county bar’s 2018 rating, as he had received the same one when he first ran in 2012.

He said the bar has long opposed him because he is a conservative Christian who is vocally anti-abortion.

“Because of my involvement in constitutional lawsuits and my personal belief system, they did not want me on the bench,” Kreep said.

The county bar has said that religion and political affiliation are not among the 15 factors it considers in crafting judicial evaluations. Attributes that are reviewed include judicial temperament, professional reputation and lack of bias.

Kreep also ran in 2012 against an opponent who received a better rating from the county bar. Deputy District Attorney Garland Peed, who like Kreep has a memorable last name, was given the top rating of “well qualified.”

Peed also had the strong support of the law enforcement community and sitting judges. But Kreep prevailed with just more than 50 percent of the vote in that year’s June primary.

Kreep said he isn’t sure why he prevailed in his first race, but not in the recent one.

“The voters have spoken,” he said.

One factor that might have played a role: In that 2012 race, Kreep had no judicial watchdog discipline hanging over him. Primaries also tend to be more favorable to the GOP in San Diego County, and there was not as strong anti-Republican sentiment in California in 2012 as there seemed to be this year.

Brian Kabateck, president of the Los Angeles County Bar Association, said he was aware of Kreep because of the public censure. Kabateck said the public discipline and the San Diego County Bar rating likely brought more attention to the judicial election than usual, which clearly benefited the challenger.

“It kind of had its own legs, where most judicial races don’t,” Kabateck said. “It is pretty astounding to me to beat a sitting judge with 60 percent.”

The last incumbent San Diego judge to lose re-election, Geary Cortes, also received a “lacking qualifications” evaluation by the county bar. His 2002 defeat in a close race came in the aftermath of him pleading guilty to battering his wife.

Supporters Crossed the Aisle for Brower

Meanwhile, Brower was also the beneficiary of support from unlikely domains.

Judges typically rally around their own when electoral challenges arise, but Brower secured the endorsements of six of Kreep’s San Diego Superior Court colleagues: Katherine Bacal, David Brown, Joan Lewis, Roderick Shelton, Timothy Taylor and Randa Trapp.

Brower said he purposely listed the endorsements from the sitting judges, as well as from retired judges, at the top of the endorsement page on his website.

“We rely, I think in lots of different capacities in life, on the recommendations of people who do have familiarity with a particular subject matter,” Brower said. “With the judges who endorsed, or alternatively with the county bar association ratings, these are subject matter experts within the field of the practice of law.”

Kreep listed the endorsements from 13 of his San Diego Superior Court colleagues on his website.

“The ones who did it apparently subscribe to the progressive idea that you can’t have anybody who does not agree with you as an elected official. That is their right under the Constitution,” Kreep said of his colleagues who endorsed Brower.

Unsurprisingly, Brower was also supported by the San Diego County Democratic Party and typically left-leaning groups. But he was able to garner endorsements from the Lincoln Club of San Diego County and Republican politicians, including County Supervisors Greg Cox, Dianne Jacob and Ron Roberts.

Brower said he noticed Kreep did well in the primary in East County, which is where the judge is from and is the region Jacob represents. So Brower sent a mailer to more than 20,000 households without a registered Democrat in Jacob’s district in which Jacob encouraged voters to support him.

“Matt Brower was well qualified and the right person for the job,” Jacob said in a statement to VOSD.

Brower also focused on the South Bay, where he said some of the other challengers to Kreep performed well in the primary, aided by their ties to the region. Brower said he spent a lot of time campaigning there in the general election and posted billboards, including some in Spanish.

Kreep, Out

Heading into election day, Brower said he felt that he had done all he could and was “cautiously optimistic” he would prevail.

But at an election night gathering at the home of Brower’s in-laws — his father-in-law is retired San Diego Judge Ronald Prager — Brower said he was pacing and wanted to leave to go for a walk alone.

He said he felt much better when his brother-in-law made a beeline to him later in the evening and held up his phone screen with initial results from the Registrar of Voters showing he had a sizable lead.

“I let out a whoop,” Brower said. “My aunt cried for joy.”

He later headed downtown to Golden Hall and gave a speech in front of the Democrats gathered at Hotel Republic.

Brower said he also made a point of going to the U.S. Grant Hotel, where local Republicans were gathered, because of the support he had received from some of them.

He has since started preparing for his new role on the bench, which he expects to begin in early January.

As for Kreep, he said he has been on vacation and has not thought much about what he will do next. There is, however, one thing he has ruled out.

“I have no interest in running ever again,” Kreep said.

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