By Harry I. Price / Los Altos Online special
I get it. Some people believe that Judge Aaron Persky has already lost in court – the court of public opinion. I applaud those who have studied the issue rather than merely reviewing one of many glossy fliers they received in the mail, let alone the robocalls that are taking place by the backers of the recall “committee.”
However, the arena of public opinion is not based on due process, many times giving little effort to thoughtful analysis. It is based on emotion and gut feelings – the stuff of campaigning in sound bites. And who, after all, can disagree with the premise: They should throw the book at anyone who assaults a woman, and this judge merely threw a chapter.
That is presenting the subject in a glib manner, so the repercussions of a recall are not considered. The right to recall should be used sparingly – for a pattern of behavior – not after just one unpopular sentence that has already been reviewed by California’s official judicial ethics commission. That commission found no bias in the judge, and further found that the ruling followed both the law and the probation department recommendation.
Who is Judge Persky?
Persky has served as a trial judge for 14 years. Prior to his appointment to the Superior Court, he prosecuted violent sex offenders at the Santa Clara District Attorney’s Office and served on the executive committee of the Support Network for Battered Women and the Santa Clara County Network for a Hate-Free Community. In fact, he received the Civil Rights Leadership Award for Work on Hate Crimes and the Wiley W. Manuel Certificate for Pro Bono Legal Services. He rode his bicycle from California to Washington, D.C., to raise money for African famine relief. He raised money for AIDS support and services in four California AIDS bicycle rides from San Francisco to Los Angeles. He is someone to be praised, not pummeled.
The politicization of judicial elections
The recall drive has amassed the support of political professionals – and regrettably, they are employing their leverage not by speaking the truth, but by spending voluminous amounts of money spreading untruths about Persky’s background, work and record as a judge. (It is his first complaint after serving 14 years as a judge.)
Because both the current and two former Santa Clara County District Attorneys oppose the recall, rather than obtaining substantial local support for recalling Persky for an unpopular decision, the bulk of the money raised is from out-of-area interest groups interested in establishing an example.
I understand that the stated desire of the recall effort is to “only focus on throwing one judge out” – but these interest groups hope to use this recall as part of their objective: the politicization of judicial elections. Their object has not been to change the law; in large part, that is because shortly after the decision was handed down, the State Legislature enacted a new law that the governor signed establishing a mandatory minimum three-year prison sentence for the crimes for which Brock Turner was convicted.
The recall election’s impact will be negative
It may be viewed as liberating to upset the status quo. When a chorus of critics explains that in removing a judge from the bench you will take pride in “doing something,” that sounds positive. But the long-term consequences of a recall election that has been thrust upon the voters of this county are negative. Where there is a strong, issue-specific, constituency-driven force attempting to shape the public discourse, the object is to have a judiciary whose attitudes are in line with the apparent public opinion. When that is an opinion shared by the vast majority of individuals, it may be viewed as a “no harm” discourse.
However, be careful what you wish for: In an era when people are receiving massive volumes of information that may or may not be true (fake news?), more and more voters are merely tuning out, as they have become anesthetized and are simply not voting. That produces results that can be anticipated – a small number of motivated voters can have an outsized impact on an election.
The attack on Persky is not based on a pattern of misconduct, but rather one judgment that followed the recommendations of the probation department. In this “Year of the #MeToo Movement,” perhaps this cause feels right to some; but, if the recall is successful, that will only galvanize other single-issue groups to seek future recalls for one decision (the notion of appealing to those who wish to “do something”). Such targeted attacks could chill effective judges into looking over their shoulders instead of following the law. That will have the slippery-slope result of turning the state judiciary into a political institution rather than one that holds the community together.
The recall election harms trust in the judicial system
A recall election is different from a traditional election, where the candidate appears in public, in front of constituents, campaigning for votes through speeches, interviews and/or commercials. In a judicial recall election, the “candidate” who is the target of the recall cannot take the stage and advocate for his retention with specifics. His hands are tied by, of all things, judicial ethics: While the perpetrator Turner is appealing his conviction (he, too, was unhappy with the result), Persky cannot address the specifics of why he issued his sentencing order.
That means the battle to oppose the recall is left to others. Yet those who have the temerity to oppose the recall are themselves attacked, derided as merely “lawyers and retired judges who are part of the system,” so their defense of “the man” must be tainted. That, of course, feeds into what once was called the “Watergate” phenomenon of declining trust levels in all American institutions.
The harshest reality of the recall election is that the stakes are much, much higher than merely the impact on the career of one judge. If Persky loses his seat on the bench, it will be the trust in the judicial system itself that will have been shattered in a significant manner, because of the obvious: Objectively, once one judge is ousted as a result of one decision, the bar is lowered for other groups to act to remove judges who do not conform to that group’s “purity test.” That future-world has already begun.
Recall elections have morphed into political beasts
In San Francisco, a group of four public defenders used “guilt by association” in their effort to oust judges merely because they were appointed by a Republican governor (Arnold Schwarzenegger, never mind the fact that he himself could never have won a pure Republican primary, first succeeding in a statewide run for office only in the gubernatorial recall election). Even though the targeted judges are registered Democrats or Independents (because they were appointed as judges by a governor with a broader litmus test than party), and do not have a controversial record (Assemblyman David Chiu, D-San Francisco, said the four Superior Court judges – Curtis Karnow, Cynthia Ming-mei Lee, Andrew Cheng and Jeffrey Ross – are models of “integrity, competence and compassion”; Justice J. Anthony Kline states that those are “four of the most able, compassionate and experienced judges in Northern California”), they are under political attack.
If successful, this recall election will accelerate single-issue politics
State Legislatures already have the power to tie judges’ hands. We’ve already tried “mandatory sentencing” requirements, such as the “three strikes” laws. If the public can also force results, it is easy to envision groups going from either “one bad decision” or “replace Republican Party appointees” as judges to:
- • Gun advocates seeking more judges philosophically bent to prohibiting laws that restrict gun ownership?
- • Right-to-Life advocates wanting to end the careers of judges who enable abortion clinics to remain open?
- • Property owners seeking judges who will find rent-control laws unconstitutional?
- • “Issue of the moment” groups seeking more judges who “reflect our community values” without regard to legal precedent?
- • President Donald Trump opponents or supporters seeking (fill in the blank)?
We have regular judicial retention elections for a reason
Our judges are not completely immune from the maelstrom of electoral politics. In California, we have regular “retention” elections, where judges can be opposed, every six years during a Superior Court judge’s term in office (12 years for Appellate Court judges). This procedure was enacted for the purpose of providing a voice to the public, empowering voters to cast out a judicial officer.
The most recent example of that happening in Santa Clara County was the retention election of Judge Diane Ritchie in 2014. After serving as a judge, her seat was contested, and she lost to her opponent – a prosecuting attorney from the District Attorney’s Office.
Having the system of retention elections in place is designed, in part, to keep judges attuned to the sentiments of the public. Just as prosecutors have discretion over which charges to bring, judges have to exercise their discretion knowing full well that there is a review system in place. Any judge who demonstrates a pattern of angering law enforcement or other interest groups will not merely lose endorsements, but also likely will be voted out of office.
District attorneys support Persky
It is so important to note that, among the individuals and groups who are against the recall of Persky are the current and former Santa Clara County District Attorneys, Jeff Rosen, Dolores Carr and George Kennedy. These are experienced and knowledgeable prosecutors who were elected to office with the specific job responsibility of enforcing our laws. Whether or not they disagree with an isolated decision issued by a judge, they recognized in this case that there was no evidence of bias or abuse of authority, let alone judicial misconduct or pattern of incompetence.
A successful recall election will produce a surprise: a new judge who has not been vetted
Just as Schwarzenegger was able to sense his moment of avoiding a Republican Party primary, and benefit from a recall election to jump into the governorship, this recall election has produced a similar byproduct: Two individuals have thrown their hat in the ring, hoping to jump onto the bench.
Nearly all of the voters will assume that the vote on Persky is just up or down. However, two women have chosen to seek the seat on the bench.
In an election where Persky has and will be pilloried in the press (including many voices from out of state), will voters learn much about who they are, let alone how they were vetted? Not so much.
But what about the emotion of the moment?
I fully understand the emotional arguments. I have heard them loud and clear from my two adult daughters. We have had some thoughtful discussions over the issue of the actual sentence that was imposed. You can imagine how tough it was to answer the question that my daughters posed: "Dad, if I had been the victim, what would you have done?” My answer: That’s the point of the judicial system, isn’t it? – not to let the victim’s family make that decision. If one of my daughters had been assaulted, I would have been so consumed with rage that I would want physical retribution. I can take a step back and be grateful that we have a system in place that affords us due process.
Even if I were to disagree with a particular decision of Persky, I have confidence in knowing that he did not do what the “Recall Judge Persky” campaign wants the voters to do: make a snap decision.
To those who support the recall effort, I ask that you please reconsider your position before you vote. There are a number of educated individuals supporting the recall for their purposes, knowing that it will help raise their status with their own constituency. Many people, when hearing a flood of repetitive calls for ouster, might assume that there is “strength in numbers” such that those commentators who echo one another must be right.
Our judicial branch of government has been established to ensure fairness and justice for all, and serves as a check against tyrannical behavior by those with the biggest megaphone. We often don’t fully appreciate the germination of tyrannical behavior until it has fully matured; and by then, once it has been accepted without objection by the majority (“I just want to get along, so I’m going to go along”), it is viewed as mundane instead of disturbing.
Please vote ‘no’ on recall
Approving the recall of Persky over one judgment call, a decision in which he followed the recommendation of the probation department as well as the law, and made the decision to require the defendant to become a registered sex offender for the rest of his life, will have a negative impact not on just one judge, but also on the county and the state.
We will not merely lose one extremely qualified and thoughtful jurist; we will have further eroded public confidence in the ability of our judges to make a fair decision, opening the floodgates to further polarization and politicization of the judiciary.
Rejecting the recall is important on June 5, because it has wrongly devolved into a character assassination based on inaccurate claims about Persky’s other decisions over a lengthy career. The claims against Persky have been determined to be unfounded by the judicial ethics commission (visit voicesagainstrecall.org/unbiased).
It’s even more important due to its future impact. Once inaccurate attacks against a fine judge with a stellar reputation become normalized, interest groups will be able to exert control over the judiciary. The effort to cleanse the court of viewpoints deemed unacceptable will only benefit passionate publicists when battles over judicial seats become well-financed political contests. This recall effort is buying ink by the barrel, but if successful, their efforts will ultimately harm, not benefit, the public.
Once the pillar of an independent judiciary is torn down, trust in the judicial system is eroded, not enhanced. The public perception of Persky should not be a cynical judgment, equivalent to the public perception of politicians. I urge you to please share this with your friends, family and co-workers – and read the websites with much more information opposing the recall, at voicesagainstrecall.org and norecall2018.org. After you know the facts, please urge others to actually cast a ballot against the recall – please vote “no” on the recall – so that judicial integrity is preserved.
Price is a downtown Los Altos attorney.