Posts Tagged ‘lifetime tenure-light’

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.


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.


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.


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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photoA happy coincidence — the same week that a few judges were acting like themselves, my article on judicial retention in the annual issue of the State Constitutional Commentary” entitled “Constitutionally Speaking, Does Retention Matter?” became available in print and online at http://www.albanylawreview.org/article_list.php?volume=75&issue=4

My irreverent contribution to the Albany Law Review, however, was merely an extended riff on what I’ve blogged about before as I critiqued among other things, the smug triumphalism of judicial retention elections and the below-the-radar judicial job security known as “lifetime tenure-light.”

‘Cracking’ wise.

So as I note in my article how the ideal of judicial independence remains preferentially ascendant with the legal establishment, it’s a good thing that every once in a while — the other equally important but oft-subordinated virtue — judicial accountability — finds a momentary albeit informal expression in the hoi polloi’s public eye.

First among the week’s judicial smackdowns was that involving Northern California U.S. District Court Judge Lucy H. Koh who is unquestionably familiar with the Code of Conduct for United States Judges and how it’s probably not O.K. to verbally ball-peen counsel for one of the litigants with the following caustic slapdown“I mean, come on. Seventy-five pages! Seventy-five pages! You want me to do an order on 75 pages, (and) unless you’re smoking crack, you know these witnesses aren’t going to be called when you have less than four hours.”

But then it does seem that, of late, that a certain part of the Code is sometimes overlooked — the section that urges judges to “be patient, dignified, respectful, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity.”

photoYet doubtless, for every trial lawyer frustrated by the antics of opposing counsel, Judge Koh’s reproach was savored with approval. There was blogger Robert Farley at Lawyers, Guns & Money who sardonically asked “You mean this morning, or generally?” and insinuated atta-girl approval writing “When judges stop being polite and start getting real.” For the record, the Apple lawyer at the receiving end of the judicial outburst denied he was smoking crack.

Lexington-Concord? Civil War?

Not to be outdone — at least at the state level, there were a couple of jurists who also gained national notoriety last week for their own intemperate utterances. One was County Judge Tom Head from Lubbock, Texas who told Fox 34 News that ‘Obama’s Re-election Could Prompt a UN Takeover, Civil War.’

More specifically, the good judge said that if reelected, President Obama was “going to try to hand over the sovereignty of the United States to the U.N. Okay, what’s going to happen when that happens? I’m thinking worst case scenario here. Civil unrest, civil disobedience, civil war maybe. We’re not just talking a few riots here and demonstrations. We’re talking Lexington-Concord take up arms and get rid of the guy.” Now there’s a jurist willing to go that extra injudicious mile farther than Montana U.S. District Chief Judge Richard Cebull when it comes to demeaning the current occupant of the Oval Office.

And then there was that other judge, coincidentally also from Texas, Brazos County Precinct 1 Justice of the Peace Michael McCleary. Judge McCleary got into his own hot water for his angry remarks made to the local press about Thomas Caffall III and his family. Caffall was involved in a deadly shootout near Texas A&M campus that left 3 dead and 4 injured. He died Aug. 13 after being shot several times by authorities responding to the shooting.

With respect to the post-autopsy remains, Judge McCleary said, “I’m not going to let the county be out the expense of going and picking up his nasty-ass body. If it cost us $200 to go pick him up, I’m not going to pay for it. The family can take care of that. I have no sympathy for him or the family.”

Later, thinking better of it and to his credit, the Justice of Peace took out a newspaper ad to apologize for his harsh words.

Yet elsewhere, I have no doubt the beat will go on.


Photo Credits: “Snap Suplex,” by Hugo Fernandes, at Flickr via Creative Commons-licensed content requiring attribution; “Stirling Fair 2010_3037,” by Robert Taylor, Bobolink, at Flickr via Creative Commons-licensed content requiring attribution.

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Yesterday, despite the impassioned support of the state bar and of distinguished former Associate U.S. Supreme Court Justice Sandra Day O’Connor, Nevadans again gave an emphatic “NO” to the so-called Missouri Plan in Nevada.

Question 1 on the ballot read,“Shall the Nevada Constitution be amended to provide for the appointment of Supreme Court justices and District Court judges by the Governor for their initial terms from lists of candidates nominated by the Commission on Judicial Selection, with subsequent retention of those justices and judges after independent performance evaluations and voter approval?”

The unofficial results, as irreverently anticipated here, had Nevadans failing to answer in the affirmative. The measure lost by almost 16 percent with 57.70% against and about 42% in favor.

Teeth-gnashing in the Silver State.

Question 2, which asked Shall the Nevada Constitution be amended to allow for the establishment of an intermediate appellate court, that would have jurisdiction over appeals of certain civil and criminal cases arising from the district courts?” also went down like it has every other time the question’s been posed. The chances of that measure’s success were even more dismal this time, in the middle of a devastated and foreclosed-on Nevada economy.

Still, the hand-wringing and enamel-gnashing from bench and bar proponents can be heard across the desert terrain to here.

Agenda-driven partisans scare retention conferees.

Iowa Supreme Court.jpg

Iowa Supreme Court

As previously reported here, with fierce agenda-driven partisanship at such a high pitch, even nominally safe judicial retention states ruled by Lifetime-tenure-light did not remain unscathed from a restive electorate. In Iowa, for example, to show that despite the job security usually accorded judges by judicial retention elections, Iowans dismissed three justices.

Officium tutis.

But in Colorado, an effort to oust 3 state supreme court justices only succeeded in scaring the otherwise smugly complacent. The undertaking mounted by Clear the Bench went down to defeat. See Colo. Supreme Court Justices Retained and Three Colorado Supreme Court justices appear to retain seats.

Meanwhile, in the rest of the otherwise tranquil paradise known as judicial retention ‘officium tutis,’ voters bothering to even look at the scores of unknown judges up for retention, mostly voted “Yes.”

Here in Arizona’s Maricopa County, 60 judges were up for retention. You’d have to go to Cook County, Illinois with 68 judges on their November 2, 2010 ballot to find another jurisdiction with even more judges up for retention. By comparison, in Iowa, the retention ballot there had a more manageable 14.

“What a country!”

However, you do have to hand it to any intrepid voter willing to run their finger down the long lists to vote ‘yea’ or ‘nay.’ It’s to their credit if they’re able to sufficiently inform themselves beforehand to pore through scores of names they barely know 2 nickel’s worth and perform their civic duties. But I hazard to add that such desultory votes of confidence by an under-informed electorate should give any fair-minded jurist pause.

An October 22, 2010 article from Nebraska’s Lincoln Journal Star Online, Many voters unsure when it comes to judicial retention, discussed the problem of voter inattention, disinterest and reluctance to vote for people they know next to nothing about. It’s called “roll off.”

The article by Corey Matteson mentioned a 2007 study on improving the judicial retention process. It was co-authored by Nebraska Appeals Court Judge John Irwin who Matteson quoted in his story. Judge Irwin said, “Very few people can tell you — certainly they can’t tell you who judges are most of the time.”

Some voters vote ‘yes’ on every judge while others vote ‘no’ on every judge. Judge Irwin’s explanation for this is that it’s “because they don’t feel they’re in a position to make an intelligent vote.”

Yakov Smirnoff

To which I respond by quoting the inimitable comedian Yakov Smirnoff and say, “What a country!”

For a more complete judicial election roundup from around the U.S., see LegalNewsline: Election roundup.


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