Thursday, January 11, 2018

California: Petitioners hand in 95,000 signatures against Santa Clara Judge Aaron Persky; Likely to be first recall of a judge since 1982

Petitioners have apparently handed in over 95,000 signatures for the recall of Santa Clara Superior Court Judge Aaron Persky over his sentencing of a Stanford University swimmer to a six month jail term for rape (many outlets are claiming it is 100,000 signatures).

Petitioners need 58,634 valid signatures to get the recall on the ballot. Based on past experience in California, where we frequently see around a 15% failure rate for the raw signatures, they should easily meet this burden, and we probably can expect a recall this Spring (I imagine there would be a good chance it would be on the June 5 ballot). The recall petitioners have reportedly raised more than $700,000.

There will still be suits in the case, as Persky is claiming that the California's Secretary of State should be the one to examine the signatures.

This would be the first recall of judge to get on the ballot in the country since Wisconsin in 1982 against William Reinecke (he survived the vote). The last successful one was in 1977 (also in Wisconsin against Archie Simonson). Both of those were also directly related to sexual assault issues. Those two judges made disparaging comments about victims from the bench.

 In 2016, there was a recall against a Wheeler County Judge, though that seemed to really be an executive position more than a judicial one. Nevada had an attempted recall of judge in 2015 that was thrown out and declared unconstitutional by the Nevada Supreme Court in 2017.

The last recalls of a Judge in California took place in 1932 against Los Angeles Superior Court Judges John L. Fleming, Dailey S. Stafford and Walter Guerin. All three were removed. There were only a few before then, notably one in 1913 that was over similar leniency in sex crimes. (Leniency in sex crimes is a common factor in many threatened recalls of judges -- here's one in Orange County and another in Montana).

 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 in 1986 and three Supreme Court members in Iowa.

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.

 Addendum on the term judicial recall/recall of judges:

Also, just to 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 or for cause recalls). A judicial recall occurs in states and jurisdictions where a judge is required to rule on whether a recall meets a specific standard to get on the ballot. Essentially, the official has to have violated the law or shown demonstrable incompetence for the recall to be placed on the ballot. It has nothing to do with removing judges. I keep this divide up so as not to confuse people who may be conversant or studying the literature.

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