Tag: recall election

More on California’s relaxed judicial ethics rules

I have a new post up at the IAALS blog that looks more deeply at the changes to California’s Code of Judicial Ethics, which permit judges to comment on pending cases in the context of a recall or retention election. Here’s a taste:

The amended rule allows judges who are under electoral attack to explain and contextualize their decisions to the voters directly. This is especially important for decisions rendered orally from the bench, which—like the rulings that ultimately felled Judges Corey and Persky—were not supplemented with a written account of the judge’s thought process. If a controversial decision was mandated or constrained by existing law, or by formal rules of evidence or procedure, the judge is now free to explain those circumstances to the public. A nuanced legal explanation will still struggle to compete for voter attention in comparison to a simple hashtag, but at least a judge will have some opportunity to advance his or her position directly.

At the same time, by inviting judicial comment on pending cases, the new rule places the overall integrity of the judiciary at greater risk. Traditional rules of judicial conduct prohibit judges from even approaching behavior that might be considered inappropriate for a neutral jurist. Judges, for example, are directed to avoid the appearance of impropriety, to disqualify themselves if there is anything above a de minimis personal interest in the outcome of a case, and to conduct extra-judicial activities so as to “minimize the risk of conflict with obligations of judicial office.” And, of course, judges are traditionally barred from discussing a pending case, lest they compromise the fairness of the proceeding. By consistently erring on the side of impartiality, judicial conduct rules avoid close calls and send a message that judicial integrity is of the utmost importance. The new rule blurs the line between appropriate and inappropriate judicial speech, and may have long-term erosive effects on public faith in the judiciary.

Please read the whole thing!

California approves plan to allow judges to comment on their own (and others’) decisions

The California Supreme Court has approved a change to its Code of Judicial Ethics, which would allow state judges to publicly comment on pending proceedings, including their own decisions and decisions of their colleagues. The most important change is to Canon 3B(9) and associated comments. The amended Canon now reads, in pertinent part:

In connection with a judicial election or recall campaign, this canon does not prohibit any judge from making a public comment about a pending proceeding, provided (a) the comment would not reasonably be expected to affect the outcome or impair the fairness of the proceeding, and (b) the comment is about the procedural, factual, or legal basis of a decision about which a judge has been criticized during the election or recall campaign.

These changes have been in the works for some time, a reaction to the ugly 2018 campaign to recall state judge Aaron Persky. The sentiment is understandable, given that judges who produce unpopular decisions are sitting ducks in an election when they cannot even respond to unfair or oversimplified attacks by their antagonists. Permitting judges to at least clarify the context of their decisions, or to comment on the overall qualifications of a fellow judge whose career is being reduced to a single decision, may prevent voters from removing a judge rashly.

But there is still reason to be worried about whether this change will work for the better. Now that judges are permitted to comment on pending proceedings, they have less of an excuse to not comment when pressed by the media or an election opponent. Some judges might feel pressure to comment even when they do not want to do so. Others might choose not to comment and find themselves under pressure to justify that decision. Put differently, in some ways the original canon was cleaner because judges had no choice but to remain silent. Now they have more freedom, and that can be a blessing and a curse.

The new rules go into effect July 1. It will be a development worth watching.

 

When should judges speak out?

Justice Sonia Sotomayor drew attention last week when she filed a dissent in a case staying the issuance of a preliminary injunction against the federal government. The injunction had been issued by a federal district judge in Chicago, and barred the Trump Administration from implementing a “public charge” policy that would require immigrants seeking green cards to demonstrate that they would not need government assistance. Beyond disagreeing with the majority’s decision to overturn the injunction, Justice Sotomayor expressed dismay with her colleagues’ readiness to entertain “extraordinary” appeals from the Trump Administration, rather than letting those appeals first work their way through the intermediate appellate courts. She wrote:

[T]his Court is partly to blame for the breakdown in the appellate process. That is because the Court—in this case, the New York cases, and many others—has been all too quick to grant the Government’s “reflexiv[e]” requests. But make no mistake: Such a shift in the Court’s own behavior comes at a cost. Stay applications force the Court to consider important statutory and constitutional questions that have not been ventilated fully in the lower courts, on abbreviated timetables and without oral argument. They upend the normal appellate process, putting a thumb on the scale in favor of the party that won a stay. (Here, the Government touts that in granting a stay in the New York cases, this Court “necessarily concluded that if the court of appeals were to uphold the preliminary injunctio[n], the Court likely would grant a petition for a writ of certiorari” and that “there was a fair prospect the Court would rule in favor of the government.”) They demand extensive time and resources when the Court’s intervention may well be unnecessary—particularly when, as here, a court of appeals is poised to decide the issue for itself.

Perhaps most troublingly, the Court’s recent behavior on stay applications has benefited one litigant over all others. This Court often permits executions—where the risk of irreparable harm is the loss of life—to proceed, justifying many of those decisions on purported failures “to raise any potentially meritorious claims in a timely manner.” Yet the Court’s concerns over quick decisions wither when prodded by the Government in far less compelling circumstances—where the Government itself chose to wait to seek relief, and where its claimed harm is continuation of a 20-year status quo in one State. I fear that this disparity in treatment erodes the fair and balanced decisionmaking process that this Court must strive to protect.

Perhaps unsurprisingly, the dissent drew vindictive attention from President Trump, who took time away from his visit to India to chastise Sotomayor and suggest that both she and Ruth Bader Ginsburg (who publicly criticized Trump in July 2016) recuse themselves from all future cases involving Trump or the Trump Administration. “I just don’t know how they cannot recuse themselves with anything having to do with Trump or Trump-related,” the President said.

The U.S. Supreme Court was not alone in facing scrutiny for the perceived political statements of judges. In Alaska, Chief Justice Joel Bolger has been drawn into a controversy surrounding an effort to recall the state’s governor, Mike Dunleavy. Proponents of the recall allege (among other things) that the governor showed lack of fitness for the office by refusing to appoint a trial judge within the 45-day period prescribed by statute, and by “improperly using the line-item veto to … attack the judiciary and the rule of law.” The legality of the recall was challenged in court, and the state supreme court will hear the case on March 25. But some are calling for Bolger to recuse himself from the recall decision, given that Bolger commented on the governor’s behavior at the time of the trial judge appointment controversy. (Bolger also criticized the line-term veto in a separate speech.) Bolger has declined to remove himself from the case of his own volition, but the supreme court did take the unusual step of issuing a letter inviting motions to disqualify if others felt it was warranted.

It is certainly true that judges must take care in their public pronouncements, especially as they relate to politics, public policy, or other government officials. Diving recklessly into partisan political debate is a time-honored recipe for eroding the legitimacy of the judicial branch. But it is also true that the judiciary is an independent branch of government, and should have a voice on issues that affect it as an institution. Where do we draw a sensible line?

Continue reading “When should judges speak out?”

California may allow judges to speak publicly about their decisions

The California Supreme Court is weighing a new ethics rule that would permit the state’s judges to speak publicly on any court ruling if it becomes an issue in an election or recall campaign. The San Diego Union-Tribune explains:

The move to amend the Judicial Code of Ethics would allow any judge, not just the jurist involved in a campaign, to comment on “the procedural, factual or legal basis of a decision about which the judge has been criticized during the election or recall campaign,” according to a draft of the proposed rule.

Historically, judges don’t comment on pending cases out of concern it could show a bias to one side or the other, impair the rights to a fair trial or influence how a case develops. The current ethics rules ban judges, and their staff, from making any comment on pending cases.

The decision is spurred by last year’s ugly and successful campaign to recall state judge Aaron Persky, whose extraordinarily light sentence of admitted rapist Brock Turner galvanized a movement to remove him from the bench. Existing ethics rules prevented Persky–or any other judge–from speaking about his decision.  If a new rule is implemented, it would go into effect on April 1.

Judicial elections in the #MeToo era

I am pleased to announce that my article, Judicial Recall and Retention in the #MeToo Era, has been published in the latest issue of Court Review. It is part of a symposium issue on the recall election of Judge Aaron Persky in California last June.

The article identifies strong similarities between the efforts to recall Judge Persky and later efforts to prevent the retention of Judge Michael Corey in Alaska and Justice Carol Corrigan in California. As I explain in the article, the parallels are troubling because recall elections and retention elections historically developed at different times and for different reasons. The utilization of recall tactics in retention elections is therefore a worrisome development.

Court Review is the official journal of the American Judges Association. I recommend the entire issue for anyone interested in the Persky saga and lessons that may be drawn from it.

On the Aaron Persky recall

Today, California voters go to the polls to determine whether Judge Aaron Persky should be recalled. Persky, of course, is known for handing an extraordinarily light sentence to Brock Turner, the Stanford swimmer convicted of three counts of sexual assault.

Turner’s conduct was unconscionable, and his sentence shockingly light. But the effort to recall Persky for that single act of sentencing is itself an awful idea that should have been put down long ago. Here is what I wrote last July:

Turner’s actions were hideous, and it is certainly understandable why a light sentence would be greeted with surprise and even outrage.  And Judge Persky’s standard defense–that any challenge to his discretion would compromise judicial independence–sounds almost ridiculous in this context.  But the recall effort is still a terrible idea.

Judicial recall, non-retention, and impeachment are all tempting weapons of the outraged class who seek to remove or punish a judge for a single controversial decision. California is no stranger to this sort of activity. In 1986, three state supreme court justices were successfully targeted for non-retention based on a single decision the court had rendered on the death penalty. Across the country, similar efforts have targeted judges for their decisions on everything from same-sex marriage to the disposition of property. Attacks have come both from the left and the right. The unifying theme of these efforts has been to try to wedge a judge’s entire career into a single decision. Never do they even attempt to consider or reflect upon the judge’s overall performance, skill, or temperament.

That is because efforts such as this serve one purpose: to score political points. Sometimes the goal is to drive voters to the polls in a general election to improve a political party’s overall prospects. Sometimes the goal is tactical, to create an opening on the bench that could be filled by a politically like-minded politician. Sometimes it reflects a deep misunderstanding of the judge’s ruling. Sometimes it is mere virtue signalling.

So it is here.  I have seen nothing to indicate that those seeking to recall Judge Persky have ever previously expressed concern about his fitness as a judge. He has already been cleared of any abuse of discretion by a state commission. And while a comprehensive judicial performance evaluation program would provide helpful context on Judge Persky’s overall body of work, California has no such program.

One can be shocked and angered by the Brock Turner sentence and still see this recall effort as for what it is: a transparent and poorly thought-out effort to score points with a political base. Californians deserve better.

Mob justice is no justice. Will Californians preserve judicial independence (flawed as it may be) against the wrath of the mob, or will they sacrifice their judicial system to the political vultures? Today I am hopeful, if not terribly optimistic, that they will do the right thing.

Some thoughts on the effort to recall Judge Aaron Persky

There is currently an effort in Santa Clara, California, to recall Aaron Persky, the Superior Court judge who gave an extraordinarily light sentence to former Stanford swimmer Brock Turner last summer after Turner was found guilty of sexual assault.  Persky sentenced Turner to six months in county jail, far short of the recommendations of prosecutors, after Turner was found to have sexually assaulted a drunk and unconscious woman behind a dumpster.

Turner’s actions were hideous, and it is certainly understandable why a light sentence would be greeted with surprise and even outrage.  And Judge Persky’s standard defense–that any challenge to his discretion would compromise judicial independence–sounds almost ridiculous in this context.  But the recall effort is still a terrible idea.

Continue reading “Some thoughts on the effort to recall Judge Aaron Persky”