Friday, June 17, 2016

California: My op-ed on the difficulties of the Recall of a Judge

The San Jose Mercury News just ran my op-ed on the recall efforts against Santa Clara Superior Court Judge Aaron Persky over his sentencing of a Stanford University swimmer to a six month jail term for rape. My op-ed (which I don't get to headline) is about how difficult and unusual recalls of judges are. It also touches on the fact that the recall of judges (and judicial decisions) is hotly contested issue in the early history of the recall. What the op-ed isn't about (despite the headline, is that a recall is almost impossible or futile). It's just very difficult due to one very critical factor. I've already discussed this story in-depth, but let's look at some of the issues again.

First, let's define our terms: I call this subject the recall of a judge, rather than judicial recall. In the history and the literature the term Judicial Recall refers to something totally different (what I call the malfeasance standard of for cause recalls). It has nothing to do with removing judges. I keep this up so as not to confuse people who may be conversant or studying the literature.

The recall will require a ton of signatures about 59000 valids, though I believe that may be in dispute. That is a big challenge, but with a motivated base, it is probably not impossible. The fact that someone is willing to back the effort and that Stanford law professors are leading the charge (and can presumably handle the legal work pro bono) is a couple of big pluses in favor of the recall effort.

The bigger problem is what I would call the "grace period." Due to incredible timing, Persky is up for reelection in November. This has a double impact. 1) He cannot face a recall in the last six months of his term, 2) Petitions cannot be started on his new term until he is in office and those petitions cannot be started until he is in office for 3 months. So the petitioners will have to wait until April to even start. We've seen this exact grace period event happen to Portland Mayor Sam Adams. That recall went nowhere. That doesn't mean it can't happen. It just

The other big point is that recalls of judges almost never happen. The last to get to a vote was in Wisconsin 1982, the last successful one was in 1977. In California, the last recall of a Superior Court Judge was in 1932. There were only a few before then, notably one in 1913 that was over similar leniency in sex crimes. (Leniency in sex crimes are a very popular recall issue -- the 1982 and 1977 were both over that issue as well. There have been discussion in Orange County and in Montana of recalls over that issue).

The other problem here is that recalling judges has always been controversial. The recall of judges and judicial decision was a key flash point in the Taft-Roosevelt split in 1912.

None of this means that a recall cannot work. But the grace period, tied in with the sheer amount of signatures and the usual hesitancy in recalling judges makes this a serious challenge for petitioners.

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