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Posts Tagged ‘judicial retention election’

https://cdn.morguefile.com/imageData/public/files/d/DodgertonSkillhause/03/l/1456878178af2si.jpgSanta Clara County Superior Court Judge Aaron Persky was recalled Tuesday. He’s the jurist who faced huge blow-back for sentencing Stanford University student Brock Turner to what many believed a too lenient 6 months rather than as much as 14 years for sexual assault and attempted rape of an unconscious 22-year old woman. In a May interview the judge said he had no regrets over the sentence he gave Turner.

Persky, a judge since 2003, was turned out by the county’s electorate by a vote just under 60%. See “California Voters Remove Judge Aaron Persky.”

It’s been 86 years since a California judge was last recalled. It’s rare. Incumbent judges rarely lose. And so-called merit-selected judges up for retention also almost never lose. Yet given the overreaction of Judge Persky’s defenders, you’d have thought the legal system cratered. That’s because his defenders don’t put much stock on judicial accountability like they do on the sancrosanctity of judicial independence.

https://upload.wikimedia.org/wikipedia/commons/thumb/1/11/Angry_mob_of_four.jpg/320px-Angry_mob_of_four.jpg

At Flickr by Robert Couse-Baker, Creative Commons Attribution License

Per one account, “LaDoris Cordell, a retired judge and a spokeswoman for Judge Persky, called the recall an attack on judicial independence and said it had “encouraged people to think of judges as no more than politicians.” Conveniently omitted by the judge is that Persky was — after all — an elected public servant ultimately answerable to voters. Meantime, Palo Alto’s newspaper was also over-the-top editorializing that the Persky recall campaign had spawned “a lynch-mob movement that threatens the independence of the judiciary.”

And as for the ‘politicians in robes’ argument, it’s not like legal scholars haven’t argued that judges’ decisions are best explained by their political preferences.

Accountability

So what about the electorate? Are voters’ opinions irrelevant? And when did holding judges accountable become a kind of societal evil? Besides, if a judicial recall is wrong-headed, what other recourse is left to a community in cases like Judge Persky’s? Not even those opining against“recalling judges just because we don’t like their decisions” have good answers. Writing at The Hill lawyer Joel Cohen for one, swats at holding judges accountable, “But to the extent that judicial independence is a core value, we need to find a better way to ensure that decisions by elected state court judges don’t bow to the caprice of the electorate.”

Is there “a better way“? As it is, when judges engage in misconduct or violate professional ethics rules, judicial disciplinary commissions who operate mostly in secret mainly treat such ethics violations with wrist slips administered with kid gloves. An instance of one such wrist slap was the complaint of several years ago by the president of Houston’s defense bar association over the punishment meted out by the state commission on judicial conduct to former Judge Woody Denson. “Nothing ever happens, no one is ever disciplined and there’s no accountability back to anyone for anything,” he protested also adding “And it’s very secretive if anything ever does happen.”

It’s not just a Texas problem either. In 2015, St. Louis Public Radio ran a story about the alleged ineffectiveness of Missouri’s judicial watchdogs, “Missouri’s code of conduct for judges rarely leads to disciplinary action.” According to the report, “About 240 complaints are made against judges in the state of Missouri each year. When complaints are filed—and they can be, by citizens, city officials and other judges–they rarely result in disciplinary action.” Quoting St. Louis University Law professor Brendan Roediger, “The process is very secretive. Sometimes there were rumors around courthouses but that was about it.”

And according to a USA Today report, “Troubling trend: When judges need disciplining.“The Center for Judicial Ethics at the National Center for State Courts serves as a clearinghouse for judicial discipline and tracks misdeeds nationwide. Their records show that removing a judge from the bench is rare. In 2013, only five judges were removed from the bench nationwide, and 17 resigned or retired in lieu of removal. Also see Wisconsin’s Post-Current investigation, “Judges never evaluated, rarely challenged” and “Disciplinary Panel Rarely Takes Action Against Idaho Judges.”

Wikimedia Commons, public domain

To be clear, Judge Persky did not violate any canons of judicial ethics in People v Turner.  Moreover, the state commission on judicial performance concluded in its 12-page report “that there is not clear and convincing evidence of bias, abuse of authority, or other basis to conclude that Judge Persky engaged in judicial misconduct warranting discipline.”

Just the same, those campaigning against Judge Persky took exception calling the report:

a one-sided, closed-door proceeding that resulted in an error-ridden report (the “Persky Report”) by an agency with a long history of protecting judges. The Commission only imposes discipline in approximately 3% of cases, even though one study showed that similar states impose discipline at three to four times that rate. At the same time, the Commission refuses to provide any information about why it disciplines judges at such a low rate. In 2016, the Commission sued to block the State Auditor from completing a performance review ordered by the state legislature. As a result of this lack of transparency and oversight, the respected Center for Public Integrity recently gave California an “F” for judicial accountability in a detailed state study.

Recall proponents justified their campaign because, “It’s clear we need judges who understand sexual assault and violence against women and take it seriously. It’s up to us, the voters, to make a difference.”

In other words, when elected officials are found wanting and oversight watchdogs are napping under a tree, it’s left to the people to act as a final check. Long ago in his 1801 letter to Benjamin Waring Thomas Jefferson wrote, “The will of the people. . . is the only legitimate foundation of any government, and to protect its free expression should be our first object.”

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Last week, the State Bar of Arizona launched an odd campaign. It’s a social media contest using the photo sharing, video streaming site Instagram.

Called Finish the Ballot!, the contest is supposed to promote voter information about judicial retention elections. Yeah, there’s a challenge — ginning up excitement for a dull but important topic.

Dangling all of a $250 Visa gift card as the sole prize, contestants vie by creating a 15-second Instagram video that must include the phrase, “Finish the ballot. Vote for the judges!”

Bar employees will pick the winner based on “creativity and originality as they reflect the contest’s theme.” Instead of “Just Say No!” think “Just Say Vote!” 

Undervoting worries.

The goal is to increase voter participation — at least on that really long part of the ballot with all the judicial names expecting retention.

Problem is that voters in Arizona and in other judicial retention states continue choosing not to complete their ballots. The phenomenon has a name. It’s called “undervoting” or “roll off.”

The worry is that for merit selection and judicial retention election proponents, all those non-votes undermine the argument that retention elections are supposedly great at ensuring judicial accountability.

And with ever longer ballots and so many judges listed, it’s not getting any better. In one recent Maricopa County election, for example,

Indeed, according to a June 2014 Arizona Law Review article, “Judicial Performance Review in Arizona: A Critical Assessment,” authors former Arizona Supreme Court Chief Justice Rebecca White Berch and her former law clerk now attorney Erin Norris Bass, reference Professor Larry Aspin’s studies revealing that between 1964 and 2010, Arizona judges up for retention averaged an undervote of 42.9%.

In his report, Judicial retention election trends,” Aspin highlighted the undervoting increase in the state’s largest county, Maricopa, where it ran “an average 48.8% in the 1996-2006 period, peaking at 54.5% in 2004.”  And citing 2012 Maricopa County Election Results, Justice Berch and Ms. Bass noted more recently that “In the 2012 retention election, Maricopa County Superior Court judges on the ballot had an average 50.7% undervote.”

But besides undervoting, there’s another concern troubling the legal establishment. Justice Berch and Ms. Bass’ law review article, also cited findings that “approximately 30% of the electorate routinely votes ‘no’ in judicial retention elections no matter who the judge happens to be.” 

In Maricopa County, among those taking the time to vote for all the judges, the median affirmative vote in the 2012 county election was 69%. Anecdotally at least, one can speculate this may be a form of protest by restive voters dissatisfied with the present system.

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Photo Credits: 214/365, at Flickr by Morgan via Creative Commons attribution; Making Faces, at Flickr by a2gemma via Creative Commons-attribution license;My Kitty Boys Doing the Big Eye Stare, by joanna8555 at Flickr Creative Commons attribution license;Instagram-logo, uploaded by José Moutinho at Flickr Creative Commons attribution;DeMoulin’s Patented Hoodwink, at Flickr Creative Commons-attribution license uploaded by Arallyn!

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