Across the Bar is a publication of the San Joaquin County Bar Association, providing local legal news, educational content, and information about Bar Association events.

A Call to Action: Threats to Judicial Independence Place Judicial Fairness and Impartiality at Risk

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The United States Constitution and California Constitution establish three separate-but-equal branches of government, which make up America's democracy. The legislative branch makes laws, the executive branch enforces the law, and the judicial branch interprets the law. The point of creating three separate-but-equal branches is a separation of powers, so one branch does not get too powerful and become oppressive.

Judges are under a legal duty to follow the rule of law. A judge must be free from the pressures of public opinion and from the influence of special interest groups so that justice can be based on the rule of law and not determined by the highest or most popular bidder. Judges may not promise to rule on certain cases in certain ways and can, in fact, be removed from judicial office for showing favoritism.

A strong, impartial, independent judiciary is critical to America's form of democracy. Judges must have the freedom to do what they believe to be correct under the rule of law, even when the outcome is unpopular or may provoke public outcry, protest, or dissent. That is a judge's job and sworn duty, which ultimately results in a fair and impartial judicial system for everyone.

In the event that a judge errs in a particular case, there is a system to challenge the judge's actions. The appellate or reviewing court can review and overturn an incorrect legal decision or sentence, and the Commission on Judicial Performance can discipline and even remove a judge from office for judicial misconduct which violates the Judicial Code of Ethics. It is by one or both of these routes that a judge's rulings and conduct are properly reviewed.

On December 19, 2016, the Commission on Judicial Performance unanimously determined that Judge Aaron Persky of the Santa Clara Superior Court had imposed a lawful sentence in the infamous case involving Brock Turner, the Stanford University student who had been convicted of sexually assaulting an unconscious woman. The Commission found that Judge Persky had followed the probation department's recommendation in imposing the sentence, and that the judge performed a multifactor balancing determination as required by law that considered both the victim and defendant in arriving at the sentence. In closing the case, the Commission found that Judge Persky had not been biased, had not engaged in any misconduct, and was not subject to discipline for his sentencing decision.

For our system of government to work to protect all of our rights as promised by the Constitution, judges simply cannot be afraid to make an unpopular ruling. Judges cannot take a poll of the public or voters and then issue out a ruling pleasing to the majority. To bow to public pressure or census would cause our system of justice to collapse, and in such a system we can all forget our Constitutional rights because they will be gone. Once justice bends and bows, you do not have a democracy and the very structure of the Constitution is in danger.

This is precisely what happened in Nazi Germany. In 1934, all judges were made Nazi party members and became partisan. They were under oath to follow Hitler's orders and thereby became instruments of the executive branch of government. Judges were no longer independent and the judicial branch was subsumed into the other branches of government. What this meant is that individuals' rights and liberties were gone. There Page 10 Across the Bar First Quarter 2017 was no recourse to the courts to challenge government's actions. There was no longer any institution to protect individuals.

Threats to An Independent Judiciary

Approximately 10 years ago, a judge in Sacramento made an unpopular ruling in a same-sex rights case. Within 24 hours of the decision, a recall effort was launched and an appeal was filed. The judge in that case and the appellate court received a clear message that if the appellate court did not reverse the decision, both the trial judge and appellate justices would all face the same fate—a recall election. This tactic was deemed to be an act of extortion by many legal scholars of the day, and the recall attempt was roundly rejected thanks to the bench and bar coming together to fight the attack.

Just last year, an Orange County judge imposed an unpopular sentence in a child molest case, which the district attorney appealed. A recall effort was launched based on disagreement with the sentence. The judge in that case was a 15-year jurist who had previously prosecuted gang murders as a deputy district attorney.

The ill-advised attack on Judge Aaron Persky is a threat to the independence of the judiciary, which ultimately is a threat to the rule of law, and sets a dangerous precedent.

That recall effort failed when the proponents failed to get enough signatures to put the recall on the ballot.

Around the same time as the failed recall effort against the Sacramento judge, a group came from out of state with ideas to reform California. The group launched an initiative called "Jail For Judges." Under the initiative, judges would be stripped of their judicial immunity, meaning they could be sued every time they made a ruling! Judges would be subject to criminal charges and civil damages, including going to jail, for their judicial decisions.

A recent recall effort has been initiated by a Michelle Dauber, a Stanford Law Professor, against Judge Persky following the sentence in the Turner case. The law professor who initiated the recall effort against the judge is a friend of the victim who believes that the sentence was too light. She had taken her "case" for the recall of the judge to social media, which ignited the recall effort.

At this time, the promoters of the recall effort have formed a political action committee (PAC), have appeared in the media, have heavily criticized Judge Persky on social media, and have launched a website to fundraise for the PAC and gather signatures to promote their recall effort.

This recall effort against Judge Persky, a jurist for 12 years who previously served as a prosecutor of sex crimes, was launched solely because of one sentencing decision that the judge made in one case. If a recall against a judge is successful, not only does the judge get fired, he or she judge typically loses his or her pension under the current judicial retirement system. A recall effort against any judge carries serious consequences not just for the judge who is facing a recall, but for the entire American judicial system. While it is not our intention to comment on the facts of the underlying Turner case, it appears to us that this recall treads on very dangerous ground.

There Has Been Notable Opposition to the Recall Efforts Against Judge Persky

Recent graduates of Stanford Law School, totaling two thirds of the graduating class, penned a poignant letter to Professor Dauber to drop the recall effort against Judge Persky. The students point out that they are troubled by the idea that any judge could be fired over sentencing decisions that the public thinks are too lenient and that judicial independence is a cornerstone of due process and an essential prerequisite of a fair criminal justice system.

Likewise, 46 leading law school professors issued a letter opposing Judge Persky's recall, pointing out that "the recall movement seeks to make Judge Persky and all other California judges fear the wrath of voters if they exercise their lawful discretion in favor of lenience. This poses a serious threat to the rule of law…".

The San Francisco chapter of the American Board of Trial Advocates ("ABOTA") also wrote a letter to denounce the recall efforts in which it stated, "SF ABOTA strongly denounces efforts to recall any judge based solely on the unpopularity of a single decision… preservation of an independent judiciary is an integral and essential component of our system of justice and the proper functioning of our democracy… This is not a new concept. It dates back to the foundation on which this country was built, and our Constitution."

Call to Action

The public's confidence in the judicial system is based on the belief that everyone gets a fair hearing before an impartial judge. This ill-advised attack on Judge Persky is a threat to the independence of the judiciary, which ultimately is a threat to the rule of law, and sets a dangerous precedent. It is an attack on our entire system of justice.

NOTE: Judge Kronlund has developed a Microsoft PowerPoint slideshow to help educate the community about the importance of an independent judiciary and how it is critical to a fair and impartial justice system. It has been used extensively in presentations to civic groups and college classes. She invites readers to use this PowerPoint to educate their communities or to invite her to give the presentation to groups to which they belong.  

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Monday, 29 May 2017

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