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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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https://lawmrh.files.wordpress.com/2010/09/politicians-34.jpgOn Sunday, the local paper ran an editorial long on conceit but short on illumination. “Kick these judges off the bench” proclaimed the Arizona Republic’s Editorial Board. The Op-ed was a day ahead of its own news story declaring, “Arizona commission deems 2 judges unfit for bench.”

I reckon the paper’s commentators couldn’t wait to join the “Amen” choir hallelujahing two non-retention recommendations by Arizona’s Commission on Judicial Performance Review (JPR).

child silly faceAccording to its website, “The JPR Commission is responsible for developing performance standards and thresholds, and conducting performance reviews of justices and judges who are merit selected and subject to retention elections.”

So with early voting in full swing, the Commission’s judicial evaluations are supposed to help voters wade through a morass of some 50+ judicial unknowns on their ballots.

But what made news was that the Commission actually found two judges worthy of non-retention recommendations. They were Maricopa County Superior Court Judge Benjamin Norris and Pima County Superior Court Judge Catherine Woods — both deemed well below the Judicial Performance Review Standards used to evaluate judges.

Sure the newspaper editorial quoted the Commission’s Chairperson who called the two non-retention votes “historic.” But too bad the paper didn’t adequately explain how truly historic — as in rarer than a Phoenix snowball.

“Everyone’s special . . . .”

https://i0.wp.com/upload.wikimedia.org/wikipedia/commons/thumb/8/88/A_Rubber_stamp_stand.JPG/640px-A_Rubber_stamp_stand.JPGFor all its self-congratulated value during its 22 year existence, the JPR Commission has generally functioned as an election cycle rubber-stamp consistently grading judges with mean evaluation scores well above 98%. Everybody’s not just special — but really special.

And since like most of Arizona’s legal establishment, the Commission’s hardly a paragon of transparency1, it’s tough to nail down precisely how rarefied these two non-retention recommendations were. Depending on the source, it’s either been once or twice before that Commission members have found pluck enough to recommend a judicial non-retention. According to one source, it’s happened only once before — in 1998. Yet another source claims it also happened in 2008.

No matter, though, as in each case the public didn’t pay any mind. Regardless of the recommendations, voters retained the judges anyway!

Since Arizona merely requires “a majority of those voting” to retain a judge, newspaper Op-ed and Commission votes notwithstanding — I won’t be surprised if it happens again this year. So much for achieving its intended purpose with all the efficacy of a hamster on a broken wheel.

Nothing succeeds like self-congratulation.

Entertainment 606In September, in a laudatory Op-ed to commemorate this year’s 40th anniversary of Arizona’s judicial merit selection system, Arizona’s State Supreme Court Chief Justice self-interestedly explained “Why Arizona has some of America’s best judges.”

While passing praise all around, at least Chief Justice Bales parenthetically conceded that “Some have observed that Arizona’s voters do not often reject judges who are up for retention.” Talk about understatement.

In 40 years, the scorecard is 99% get retained. Since 1974, only two judges have lost a retention election in Maricopa County. Also see research cited at “Job security means working for the feds or sitting for judicial retention elections”

Additionally, a law review article recently noted that “A few have argued that the JPR program does not work to “weed out” bad judges, because the Commission rarely votes that a judge “Does Not Meet” standards, and when the Commission does issue such a vote, the voters nonetheless retain the judge.

“Although that is one way to evaluate the data,” the authors explained, “an alternative assessment is that the data demonstrate the merit-selection system’s success in appointing high-quality judicial applicants. That is, the data may instead show that the merit-selection system is attracting and retaining highly competent judges who are performing well and do not deserve “does not meet standards” votes or to be voted out of office.”2

Frankly, this “alternative assessment” is probably a stretch. The problem with drawing such conclusions is best summed up by the aphorism, “the absence of evidence is not evidence of absence.”  Or in other words, we’re expected to accept the fallacious logic that X is true because there’s no proof X is false.

https://i0.wp.com/upload.wikimedia.org/wikipedia/commons/4/43/Stick_figure_-_choosing.jpgThat the Commission almost always fails to muster “Does Not Meet” standards votes — or that it rarely votes to non-retain — or that an overwhelmed electorate has to play Eeny, meeny, miny, moe” on scores of judicial unknowns — hardly amounts to proof positive that merit selection cornered the market on the high performing and highly competent.

What it does mean, however, is that after 40 years, merit selection is tantamount to lifetime appointment.

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(1) Try searching for meeting minutes or judicial performance report data older than 4 years on the Commission’s website at http://www.azcourts.gov/jpr/NewsandMeetings.aspx?nt=4

(2) See Judicial Performance Review in Arizona: A Critical Assessment.
Berch, Rebecca White; Bass, Erin Norris // Arizona Law Review; 2014, Vol. 56 Issue 2, p353

Photo Credits: Rubber Stamp Stand, by Thamizhpparithi Maari at Wikimedia Commons;Robo Dwarf Hamster, by Sarah , Flickr Creative Commons Attribution; Stick figure – choosing, by Obsidian Soul by at Wikimedia Commons.

 

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In the kingdom of the blind, one-eyed New Jersey is apparently king. Or so it would seem according to a state integrity report card announced this week by the Center for Public Integrity. The self-described non-partisan investigative news organization issued a 50-state State Integrity Investigation Report and the bottom line? “Most states do a poor job in guarding against corruption.” And Will Rogers was right when he said, “You could keep politics clean if you could figure out some way so your government never hired anyone.”
                                                                                                                          No state earned an “A.” Only five earned a “B” grade – – – led surprisingly by New Jersey – – – home of fictional Tony Soprano and real-life American Mafiosos. And where only last December, Federal officials unveiled a massive indictment against New Jersey defendants in a mob takedown there.

As the Center explains, “The State Integrity Index researched 330 “Integrity Indicators” across 14 categories of state government: public access to information, political financing, executive accountability, legislative accountability, judicial accountability, state budget processes, civil service management, procurement, internal auditing, lobbying disclosure, pension fund management, ethics enforcement, insurance commissions, and redistricting.”

With such dismal findings, the Center is clearly advancing its mission “to reveal abuses of power, corruption and dereliction of duty by powerful public and private institutions in order to cause them to operate with honesty, integrity, accountability and to put the public interest first.” Good luck with that.

No shame.

Yet if we know anything, it’s that the powerful have neither shame nor “any sense of decency.” A recent ‘for instance’ stands out. It’s the case of disgraced, impeached former Illinois governor and lawyer Rod Blagojevich who last week, before entering ‘Club Fed’ in Colorado, was signing autographs, posing for pictures and chowing down at “Freddy’s Frozen Custard and Steakburgers” for his final taste of freedom.

“D” Sisters: Arizona and Nevada

But despite the Center’s good intentions, there’s much to criticize, especially that so few states garnered “F” grades. Like what’s up with all those “D’s”? And how did Blago’s home state Illinois rank 10th out of 50 states? How in the world does politically corrupt Illinois with its long history of corrupt politicians score a 74 and earn a “C” grade?

Unsurprisingly, my former home state, Nevada, almost made the dubious ‘cut’ to earn an “F” with the 8 cellar dwellers bringing up the rear. Earlier this year, poor Nevada also failed to make ‘the cut’ missing the Top Ten when another poll dubiously distinguished poor Nevada as 11th among “America’s Most Miserable States.”  But on the corruption scale, by the skin of its teeth, Nevada earned a “D-” to place 42nd among 50 states.

My current home state, Arizona, earned a hardly praiseworthy “D+.” But with so many other states garnering “D” grades, it was 15 spots better than Nevada and 27th out of 50. A total of 18 states got “D” grades. 19 states earned “C” grades. Compare your state’s report card here.

Nuvola apps edu miscellaneous.svgArizona buoyed its embarrassing “D” thanks, in part, to the Center’s bias for judicial merit selection and retention. Otherwise, it richly deserved its “D,” and more properly, should have been awarded an “F.” Indeed, I enthusiastically agree with Requiem for Arizona,” a recent “Letter to the Editor” in “High Country News,” where reader John Woodruff wrote, “It is no secret that Arizona’s politicians are narrow-minded and incompetent. But when the highest aspirations of most people in the state are to live in an undemanding climate, engage in ersatz amusements and pay no taxes, enlightened people are not going to flock to state government. As Arizona marks its centennial, the most fitting gesture would be to drape the Capitol in black crepe. That is, of course, if it’s all right with the new landlord.” (Facing its worst financial crisis since the last one, in 2009, the governor approved a plan to sell the state Capitol buildings.)

As for Nevada, its parochial “good ole’ boy” political culture is reason enough to taint it with corruption, but it was also downgraded for not enjoying the supposed Utopian benefits of merit selection and judicial selection. It was given a “D+” for Judicial Accountability.” As a contested open judicial election state, Nevada suffers from legal establishment and news media criticism of purported endemic conflicts of interest and a supposed stacked judicial deck.

According to The Story Behind the Score,” speaking of the state’s judiciary, it explained that Nevada voters “resisted some reforms. In November 2010, for instance, voters killed measures that would have switched Nevada judges from an elective to appointive system; instituted a formal system to measure judges’ performance; and added an intermediate appeals level.”

Conversely, merit selection/judicial retention Arizona received a “B-” for the same category, which partly explains its overall gentleman’s “D+” versus Nevada’s “D-.” But at least, residents of both states can draw comfort from a poll last year where Nevada and Arizona beat out the field as, respectively, No. 1 and No. 2 among “America’s Dumbest States.”

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Politicians 34As time draws near for Nevadans to revisit judicial merit selection and retention for the third time, there are no assurances things will turn out well this time for proponents. There isn’t much organized opposition, except for the abiding reluctance Nevadans have to give up their right to vote for a judicial candidate of their own choosing. File:Man sitting on a dead horse (1876 - 1884).jpgIf you look at historical precedent, chances are, proponents will have to wait another generation before again flogging the same lifeless horse. Twice before, in 1972 and again in 1988, Nevadans nixed merit selection preferring to keep the current open but messy judicial election system. Not stumbling across the finish line. Indeed, the latest automated polling results appear to confirm that. Despite considerable money, a former U.S. Supreme Court Justice’s active support, and mostly favorable press, a dead horse can’t stumble across a finish line. In a survey of 1,400 Nevada voters taken October 4, 2010 by Magellan Strategies, 51% were opposed to merit selection and retention while 30% were in favor. The undecided number was 19% and the margin of error was 2.6%.
Businessmen uid 1In an editorial Friday, entitled, Soros Bets on Nevada, the Wall Street Journal ran another of its long line of critiques opposing judicial merit selection and retention. It was the same litany of criticisms, grounded on their belief that since Liberals loathe having the naked unwashed elect judges, matters should instead be put “in the hands of a legal elite.” It’s too bad that the Journal principally frames its objections through a highly partisan Liberals vs. Conservatives prism, believing that the so-called Missouri Plan has “in most cases. . .pushed courts to the activist left.” In my estimation, that shouldn’t be the germane objection since the make-up and agenda of judicial nominating commissions can just as easily skew toward the equally activist right. Neither side of the political aisle has a corner on naked partisan activism.

Conservative lawyer groups like The Federalist Society, for instance, have their own strict constructionist judicial preferences as much if not more so than the preferences espoused by the so-called bleeding hearts at the American Bar Association and the American Civil Liberties Union. Who’s kidding who? When last I blogged about The return of politics in judicial retention elections, in truth, I should have added that the body-politic itself self-defines its partisan predilections. An overview worth reading. One of the better informed overviews of the Nevada debate was Elect or appoint?, which was published at the end of September by Dennis Myers of the Reno News and Review. Myers interviewed stakeholders and filled in a lot of gaps, which are glibly glossed over by proponents. For example, sitting judges do make contributions to political candidates. So after reading his report, it’s readily apparent how absolutely silly the notion is that merit selection and retention keeps out money and politics. If that’s true, how do sentient beings also become political-neuters? The truth is that social relationships at every level of life always involve dynamics of power, authority, and positional-jockeying. Consequently, they engender political calculations. It’s not like an appointment to high office sanitizes the appointee by somehow rendering that calculation more sanctified than being openly elected. Again, I posit, ‘Who’s kidding who?’ What’s more likely is what State Assemblyman Bernie Anderson told Myers about merit selection, “If anything, I think what it will do, it will ensure that only those who played within the system, who play well with the state bar, are going to be the ones who make it. It’ll just be, ‘It’s your turn.’ ” Preferable messiness. Given all these attendant considerations, I prefer the comparative messiness of electoral campaigning and the give-and-take of partisan electioneering. It’s the process where the electorate has the best chance of acquainting itself with the issues and personalities. Yes, it can be improved, for example, by tougher judicial recusal rules; greater donor transparency; and by increased use of public financing. But a judicial appointment committee, no matter how purportedly diverse it claims to be, will never displace the comprehensive diversity of a broad electorate. And a scarcely noticeable insiders’ selection and judicial performance evaluation process operating under-the-public’s-radar is no substitute for what U.S. Supreme Court Justice Louis Brandeis once famously said about the disinfecting power of sunlight.

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