SACRAMENTO — Assemblyman Steve Peace (D-Chula Vista) on Monday asked Gov. George Deukmejian to remove a San Diego judge from consideration for a state Supreme Court appointment because of a recent ruling she made that, Peace said, "would make Rose Bird blush."
Superior Court Judge Patricia Benke, who is one of six judges Deukmejian is considering for three vacancies on the Supreme Court, ruled Friday that a Chula Vista health club could continue to operate despite that city's contention that the club is actually an unlicensed "sexual encounter and rap parlor."
Benke rejected the city's request for an order forcing the club to cease operating after she found that the city had not properly informed the club's owner that a preliminary restraining order had been issued against him.
In a letter delivered to Deukmejian on Monday, Peace said Benke's ruling "demonstrated an incredible lack of concern for the community residents and inordinate preoccupation with protecting the continued operation" of the Chula Vista club, known as Thad's.
"Needless to say, I and my constituents are stunned by Judge Benke's performance," Peace wrote to Deukmejian, who appointed Benke to the Municipal Court in 1983 and the Superior Court last year. "Please do not compound an error by appointing her to the California Supreme Court."
In an interview, Peace said he believed Benke had to "bend over backwards two or three times" in order to rule in favor of the the club's owner, Elbert Poppell.
"She, in the most strained legal decision I have ever witnessed, a decision that would make Rose Bird blush, created a loophole to allow this guy to continue to operate until this case is brought back to trial," Peace said. Rose Elizabeth Bird was unseated as California chief justice by popular vote in November after a long campaign against her liberal views and decisions.
Benke is one of six judges--and the only woman--Deukmejian is considering for three openings created on the Supreme Court in November when voters rejected Bird and two other justices. A former deputy attorney general, Benke worked with Deukmejian when he was attorney general from 1978 until 1982, and is generally considered to be a conservative and tough on crime.
Her ruling Friday against Chula Vista came after she determined that the city had not properly served Poppell with papers informing him that another judge had issued a restraining order against his business. The city contended that it had served notice on the club's manager because Poppell, though he was at the business, was hiding.
Further, the city had informed Poppell's attorney of the matter and contends that the attorney had insisted that he, and not Poppell, be contacted in connection with the case, said Assistant City Atty. Rich Rudolf.
As a result of Benke's ruling, the club was able to operate last Friday and Saturday night and will be able to do so until the case comes to trial unless the city can obtain another restraining order, serve notice on Poppell and then persuade Benke to issue an injunction. Poppell has a long history of operating "swingers" clubs throughout the county.
Kevin Brett, a spokesman for Deukmejian, said Peace's letter would be considered by the governor but would not carry as much weight as comments from Benke's colleagues on the bench and co-workers in the attorney general's office.
"Judge Benke's record as a tough prosecutor and as a judge who's concerned about public safety remains the same," Brett said. "She served for nine years as a deputy attorney general assigned to the criminal law division and the governor has twice appointed her to the bench, and certainly she is known as being very tough on crime and as being a person very concerned about public safety."
Benke could not be reached for comment Monday.