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Gary Kreep Says His 'Birther' Positions Do Not Relate To Being A Judge

Gary Kreep After His Election
A discussion on how much voters know about candidates before they cast their votes.
Guests: Former San Diego County District Attorney Paul Pfingst Carl Luna, Professor of political science, Mesa College

CAVANAUGH: This is KPBS KPBS. I'm Maureen Cavanaugh. How much did you know about all the people you voted for in the primary election earlier this month? How much did you know about the party's central committee candidates or the School Board candidates or about the judges? San Diego has made national news because of the outcome of the race between Gary Kreep and garland Peed for judge. Gary Kreep has apparently won the election. What perhaps people didn't know before the election was that Mr. Kreep does not believe that President Obama was born in the United States. NEW SPEAKER: According to his paternal step grandmother, it was stated in a recorded statement that no one has ever disputed, he was born in Mombassa, and she performed a Zulu birth ritual on him. Why would his aunts and other cousins have confirmed this? Why would his own family say he was born in Mombassa? And because of federal law, he's not even a U.S. citizen. CAVANAUGH: That's a clip from his interview on KPBS evening edition a week after the election. Though many people are happy Mr. Kreep is now a Supreme Court judge, others may be dismayed and questioning how these judicial races are won. I'd like to welcome my guests. Ernie Paul Pfingst is former San Diego district attorney. Welcome back to the program. PFINGST: Good to be back. CAVANAUGH: Carl Luna is here, hello. LUNA: Hu there. CAVANAUGH: In the interests of full disclosure, you were a supporter of garland Peed PFINGST: And a friend of his, I'm going to have drinks with him tonight to console him on his loss. So in full disclosure, yes, he's a good friend of mine. LUNA: And I believe a relative of his was the head of the community college district as well. CAVANAUGH: But the reason you're here, Paul, is not because you're a friend of the man who left but you ran for judge. PFINGST: I have. CAVANAUGH: How does somebody run for judge? PFINGST: Successfully or unsuccessfully? [ LAUGHTER ] PFINGST: To run for judge, you have to have a law degree, and you can go down to the registrar of voters and take out the same papers you take out for other candidate positions, and you get people to nominate you or you pay a fee to the county, and then you're on the ballot. CAVANAUGH: Are there rules and regulations on how you're supposed to campaign that are different from other candidates? PFINGST: Yes and no. There are voluntary rules that candidates can sign up for. But the U.S. Supreme Court has made it pretty clear that there used to be a whole lot of rules. And the U.S. Supreme Court said this is politic, this is political speech, and you can't inhibit political speech even for judicial races during an election. So basically they're self-imposed rules because judicial candidates are afraid if they go outside the bounds, it won't look good. CAVANAUGH: Do candidates for judge typically debate? PFINGST: No. CAVANAUGH: No? PFINGST: Not generally. That's like watching paint drying. All candidates get up there and say I can't take a stand on this because it may come before me. That type of thing. And when you do go on the to what little or few debates there are, a total of 25 people will show up. And they're your friends and relatives, your campaign consultants and volunteers. So you're speaking to your own group. People do not leave their home to come out to watch a judicial debate. CAVANAUGH: Well, that leads into my next question. Because of the outcome of the Kreep/Peed race, it's been interesting to discover how much people, including apparently seasoned news reporters, don't know about what it takes to run for judge or vote for judge. For instance, which judges are appointed and which are elected? PFINGST: Actually, the way it works out now is that if a judge leaves during his or her term in office, the governor can appoint the position. If the judge goes up to the end of a term and vacates the office, then that position comes up for election. CAVANAUGH: And are these all judgeships? PFINGST: Yes, because -- well, all trial court judgeships. So what happens, if you are a Democrat judge, and you want to be nice to a Democrat governor, and you're thinking of retiring, you retire before your term is up, and allow the democratic governor to appoint your replacement. If you are a democratic judge and it's a Republican governor, you may stay to the end of your term and let it run for election. CAVANAUGH: How long are these judgeships? How long are the terms? PFINGST: Six years. CAVANAUGH: All right. Carl, I guess some people may be asking how did we get to the point where we vote for people that we don't know much about? LUNA: That's because there's a lot of people we have to vote for. In some ways we may have too much democracy in California. You have to vote for your School Board, your county board, your DAs, your judges, and voters get fatigued, and a lot of these positions aren't very high-profile. Most judges are going to get to the bench when there's a vacancy. They get appointed in by a friendly governor. And when voters look for who they're going to vote for, an incumbent judge or lawyer, so like judges better than regular lawyers. The lawyer challenger usually loses. It's only in open seats like this one where you get a little spark. If you know the name of the judge who's running for reelection, they probably screwed up. And that's about the only time they usually lose. CAVANAUGH: Most people read the sample ballot when is they're trying to make up their minds on a race they don't know much about. Of are there any rules or regulations about what the candidates have to disclose in that sample ballot when they make their statements? LUNA: Beyond the fact they're a lawyer, I don't think there is. PFINGST: You don't even have to have a sample ballot. What's contained in it, there are some rules. That issue can't take the other candidate. The registrar won't let that happen. You can't lie about your occupation. You get a 3-word spot for your occupation, and that can be litigated if you misrepresent your occupation. And it frequently is, in fact. Other than that, it's pretty much open. You only have so many words. So everybody guards each word very jealousy. But other than that, no. And you see a defense. This year was perhaps one of the biggest defenses that -- I've seen a lot of judicial ballots, I've helped write quite a few. And this year was very different because the Kreep ballot and the other open race, which is the Amador race, I forget the names of the others, Kreep and the other two candidates in the Amador race are -- let's call them more conservative, not in a pejorative sense, very conservative candidates who were not in public and don't have a history in public office who have written a different type of ballot statement than the deputy district attorney's which says I'm well qualified by the bar, I'm epidorsed by these people. I have the support of these law enforcement organizations N. This year, that did not work. In past year, that always worked. So this was a very different year. The irony of this year which is mind boggling to me is that we had tens of thousands of Democrats voting for a birther, antiabortion, right Christian conservative evangelical -- and all of which I have no quarrels with, but I think most Democrats tend not to vote for those people. And this year, they did. CAVANAUGH: And one of the reasons it could have been is because the supporters of garland Peed were largely Republicans, Republican names people would recognize like Bilbray and Jerry Sanders and so forth. And perhaps people not knowing much about either said oh, well, that's the Republican. PFINGST: Well, that could be. LUNA: That's the perfect storm. You had some of the vote that went for Mr. Kreep went for that reason. The antiemployee think that Paul was talking about. People just voting, the name caught their eye. PFINGST: Well, Peed and Kreep. LUNA: And people cast their ballot, and they bought a pig in a poke. CAVANAUGH: You mentioned the San Diego bar association. They rated Gary Kreep as lacking qualifications to be a judge. What does that actually mean? PFINGST: There is an interview process where the bar has a panel that reviews the background of people in a variety of different ways. What type of jobs they've held, what type of perhaps they have had, whether they have been in a courtroom at all. A lot of people never go to court but they're lawyers. And what their representation is among the people, and the judges they've appeared in front of. And they do an evaluation to guide people who don't know how to evaluate lawyers. And they take it pretty serious. And in this case, their evaluations peek for themselves. They found in the Peed race that garland Peed was well qualified, the highest rated. And Kreep was unqualified. So that didn't sway anybody. CAVANAUGH: No. PFINGST: Then again most people probably didn't even know it. Of CAVANAUGH: And therefore, Carl, do you think perhaps those assessments should be part of what we find on our sample ballot? LUNA: It might be nice to have more data points on judges. There's a lot of judges, so one individual judge gets pointed to the bench or elected to the bench, it's not going to have a huge impact. But this is also part of a movement. In 2010, you had a group of San Diegans that were trying to get conservative judges, social conservatives elected. It's kind of like what you're saying with School Boards in the '80s and '90s. This is a way you build up a very particular political view in an otherwise nonpartisan position. The candidates for judges are never going to be raising the money in California they need to be able to really sway things that way and get their name recognition out there. PFINGST: I've run for election in the county four or five times. It takes in a county this large with millions of people, and our county, geographically is larger than quite a few states. And something like 26 states are smaller in population than San Diego County. So in order to reach those voters and identify yourself and let them know who you are requires at a minimum, $500,000, which no judge is going to raise. You can't penetrate a county this big on a judicial campaign. You have to cross your finger, put out your ballot statement, buy a few mailer, put up some signs along the highway, and really they're just signs to your friends who already know you. Of the they dent persuade a lot of voters. Then you have to hope you have the right resume for the job of the mood of the public at that time. CAVANAUGH: Let me take this forward a little bit. How much power does a superior court judge have? PFINGST: Well, because I'm going to be in front of judges tomorrow, enormous! God bless them all! If it's your case, it's an enormous amount of power. Generally for the county, well, occasionally I judge will have a lot of power. Judge Barton was doing the pension cases for the county of San Diego. And that was a big deal for the county of San Diego. If it's a criminal case, and a death penalty case, and I'm defending someone in one of those cases now, that judge has quite a bit to say about it. On a macrosense, if you're a trial court judge and you screw up, there's the ability for an appeal. But on an individual case, a great deal of power, generally across the county, it's the rare case that has county-wide applications. CAVANAUGH: If a DA sees a judge who's not up to it, can that judge be sidelined? PFINGST: Every party has an opportunity to challenge a judge for no reason. Once. After that, you need a reason. So you have one bullet you can fire at a judge. The District Attorney, for example, if they find a judge who's unqualified, can challenge that judge on every case. I did that once with one judge. I just said this judge's rulings and the way he's treating is not appropriate, and we're just going to challenge him. And this judge can go to civil work where he can do a better job. My predecessor did that once, my successor did that a couple of times. Occasionally that happens. Upon but every party gets an opportunity without explanation to say I don't want to appear in front of this judge. CAVANAUGH: What about recalls? LUNA: Recall is in the voters' prerogative. But you have to wait six months until it comes in. They'll be reversed on appeal, become one of those judges you know about, and in six years, they'll be gone. CAVANAUGH: As Paul was pointing out, for judges' races, people don't raise an awful lot of money, they don't run ads, and so forth. Understanding that, Carl, do you think the media dropped the ball on this LUNA: It would -- strike from a media perspective that it would have been an interesting story. But everybody is asleep on it. I would imagine that the judges will get far more attention from the media than a typical superior court judge. PFINGST: I'm going to be less general. Yes, the media dropped the ball on this. They usually drop the ball on this. CAVANAUGH: Judges in general? PFINGST: Yes. The fact of the matter is very little went into the backgrounds of these gentlemen to flesh out anything, if somebody even wanted to know about these people, they couldn't find out about it, except perhaps going onto a website that they created. Who in the media? Let's face it. Our media has been cut back and cut back over the course of years. We have reporters, fewer this, fewer space, and but there's no way that you can take a look at someone like judge-elect Kreep, and not say, an interesting figure! CAVANAUGH: Yes. PFINGST: Running against garland Peed, an interesting figure! Interesting race! Let's define these people. Didn't happen. CAVANAUGH: You're right. And there were a couple of articles, but only a couple before the election were written about that. Jeff is calling from Point Loma. Welcome to the program. NEW SPEAKER: Thanks so much. One thing to keep in mind is the description of the candidate in the ballot. I know there's a lot of discussion, there's a lot of rules regarding what you can say your occupation is, for example. I know now soon to be judge Kreep, he listed himself as a constitutional law attorney on the ballot. And I think the Republicans have followed law enforcement line that supported Mr. Peed that perhaps very liberal people would assume a constitutional law attorney would be a liberal-type figure. And that could have correlated to the voting of Democrats, and liberals toward Mr. Kreep without knowing more of his background. CAVANAUGH: Thank you very much for the call. Let me ask you quickly to end this. Should voters just skip races they don't know about, Carl? LUNA: It would be nice if voters were informed on everything they did, but of course they're not going to be. Some are going to skip, some are going to goeeny meany miny mow. I don't want put voting on my brain surgeon. To a judicial commission, that's the system, it pays your money, and takes chances. CAVANAUGH: And we've got to go. Thank you both very much. LUNA: You're welcome. PFINGST: Thank you.

Gary Kreep, who appears to have won the race for a San Diego County Superior Court Judge seat, caught national attention recently for his belief that President Barack Obama's birth certificate is fake.

After Obama's inauguration, Kreep took on a so-called "birther" lawsuit demanding proof of Obama's birth certificate. He is also currently suing the California Secretary of State, demanding she verify citizenship of all candidates before they appear on the November ballot.

But Kreep did not include this information in his description on the sample ballot. He told KPBS' "Evening Edition" the information wasn't relevant.


"What's that got to do with being a judge?" he asked.

He called the San Diego County Bar Association "bigoted" and said his stance on other issues led the association to state he is "lacking qualifications" to be a judge.

"They did it on the basis that you can't be pro-life and you can't oppose same-sex marriage and be a judge, that's what they told me," Kreep said. "That's a religiously bigoted statement, which will be further investigated by me, and I'm going to move forward on that because that is discrimination."

Kreep said he was going to take action against the bar association.

He added that he did not think including his stance on Obama's citizenship in the sample ballot would have affected the election because supporters of his opponent, Garland Peed, sent out emails detailing Kreep's positions.


"So obviously it must not have had too much of an impact," he said.

U-T San Diego and the alternative weekly San Diego CityBeat covered Kreep and his positions before the election.

Although there was snickering about the two names in the race, Kreep and Peed, Kreep said he did not think names had any impact. He said voters do not randomly choose candidates based on their names.

"That type of thought is exemplified by people like Rachel Maddow and that OB Rag or whatever it is that said today my election is the reason why people shouldn't be allowed to vote for judges," he said. "The liberal elitist establishment believes that the common people are too stupid to make the decisions, that's why they want to have people like Mr. Obama in the White House who rules by executive decree and executive order rather than dealing with the legislative process."

Kreep said he is merely asking President Obama to do what every other president has been required to do: prove he's a citizen.

Kreep said earlier this year, the governor of Hawaii announced he was going to produce Obama's birth certificate.

"To prove to everybody, to get rid of all those crazy birthers," Kreep said. "Then he announced that he didn't have it. All of a sudden, three months later, the state of Hawaii has it!"

Kreep said he was told his judge seat would handle family law cases, but "I've also been told by people inside that I'm going to be punished for daring to take on the favorite golden boy of certain leaders in the judicial branch of the government."

The "golden boy" Kreep referred to was his opponent, Garland Peed.

Kreep said he was told he will be punished, which means handling small claims and traffic court.

"If that's what I'm assigned, I'll do the very best job I can," he said.

Do Voters Pay Attention to Judicial Elections?
Gary George Kreep, San Diego County Superior Court Judge Candidate

Corrected: September 21, 2022 at 1:40 PM PDT
Correction: An earlier version of the story stated only San Diego CityBeat covered Kreep before the election. U-T San Diego also did a story. The error has been corrected.