California: Santa Clara County Superior Court Judge facing recall threats

Santa Clara County Superior Court Judge Aaron Persky is facing a threatened recall over his sentencing of a Stanford University swimmer/student Brock Turner to a six month jail for rape. Already, a Stanford law professor is suggesting she will lead one, and an online petition that has garnered over a million signatures (none count toward a recall). The petitioners need an unclear number of signatures which may be almost 59000, but could be much more. They also likely will not be able to start until April.

The petitioners will face a few serious problems with their recall effort. The first obvious one is that 80920 or 59000 signatures are both a hell of a lot. Of the tens of thousands of recalls that have occurred in the US, only a handful have needed more signatures – the most prominent among those were three Governors, a Lieutenant Governor and two Mayors of Los Angeles.

The other problems are more specific – it involves the grace period. California law does not allow a recall in the last six months of a term unless the official is appointed or in the first three months of a new term. Persky is up for reelection in November. While Persky was first appointed to the office, he was elected six years ago. Even if they could collect the signatures today, the recall would not be allowed.

Then if he is reelected – and that’s a good bet, as he is running unopposed -- petitioners would have to wait three months from the start of his term before starting the collection process. Now, we've seen questions on when the grace period ends crop up in an attempt against the San Francisco Mayor. Almost certainly, the signature gathering won't start till April. By then, anger may have cooled and people’s attention may wander. This has happened many times in the past.

This grace period and the fact that he is running unopposed is part of the reason we aren't completely sure about the signature totals. California law holds that the signatures required must equal be 20% of the total vote cast for the countywide office which has the least number of votes in the most recent general election.

The Registrar stated it was 80920 then changed that to almost 59000 based on a different calculation. If there is no countywide office up for election in November, then it will be the almost 59,000 signatures. However, it is not clear if any judge will be facing an election or if a court would rule that it is a position that is positions that are larger than countywide (such as Senator or President), and just includes the votes in the county. It is not a likely interpretation, but it certainly may lead to a lawsuit. If so, the election in 2016 will have a higher voter turnout (all presidential elections do).

Let's now get to some history here:

As we've discussed before, recall of judges almost never happen. There's been plenty of threats including one against an Orange County Superior Court Judge last year and one in Nevada where we are still waiting for the Supreme Court to rule on whether the judge would face a recall (here's another in Montana). The last recalls of judges we've seen in the country took place in Wisconsin back in 1977 and 1982. Much as with Persky, those recalls were about sexual assaults, though the recalls were due to incredibly inappropriate comments from the bench. In 1977, Judge Archie Simonson was tossed out by voters after both handing down extremely lenient sentencing for a rapist and making negative comments about women and rape victims from the bench. This was followed in 1982 when Judge William Reinecke survived a vote despite disparaging comments about a five-year old sexual assault victim. Note that there are many retention elections that are incorrectly described as recalls -- most notably California Supreme Court Chief Justice Rose Bird, Cruz Reynoso and Joseph Grodin and three Supreme Court members in Iowa.

The last recalls of a Judge in California were three that took place in 1932 against Los Angeles Superior Court Judges John L. Fleming, Dailey S. Stafford and Walter Guerin. All three were removed.

Using the recall against a judge has always been controversial. California's recall law almost floundered over this issue back in 1911 – a late-breaking state Supreme Court scandal proved decisive. On the national level, President William Howard Taft vetoed the Arizona constitution over a recall of judges’ provision and the recall of judges was one of the key flash points in the Taft- Theodore Roosevelt split in 1912.

We'll see if social media can keep the fires burning long enough to get this recall on the ballot.