The successful recall of Aaron Persky caps an emotional and intense two-year campaign for his ouster led by opponents appalled at the California judge’s lenient sentencing of sexual assault convict Brock Turner. It also marks a historic and rare event: The last time a sitting judge in California was recalled was more than 80 years ago, in 1932.
The recall campaign—and its results—have been viewed by many in the legal establishment with trepidation about the signal it sends regarding judicial independence. Legal experts and outside observers, though, seem to agree that the circumstances surrounding Persky were unique and not likely to be easily replicated.
At the same time, some say the outcome gives future judicial opponents a new measure of confidence about the feasibility of ousting a judge through a recall or other election process and provides would-be recall campaign leaders a blueprint of sorts to follow.
“It’s hard to meet all the requirements [of a recall]. It’s hard to get all the petitions signed, and then keep the anger level up,” said Charles Geyh, a professor at the Maurer School of Law at Indiana University and author of a forthcoming book about judicial elections. Geyh said the Persky recall was the “one-in-a-million” case where campaigners were successful.
“This may embolden angry locals to get judges recalled in the near term,” Geyh added.
A minority of states in the U.S. allow judicial recalls. Only nine have such a mechanism on the books, and four of them require certain facts be alleged or proven in order for the process to be triggered, according to William Raftery, a senior analyst at the National Center for State Courts in Williamsburg, Virginia.
For example, Georgia permits judicial recalls, but its laws also require that the judge be shown to have conducted an “act of malfeasance or misconduct while in office,” such as stealing public funds. It explicitly says that “[d]iscretionary performance of a lawful act” is not grounds for recall.
There’s no debate that Persky’s sentencing, while controversial, was within the bounds of the law. California is one of a handful of states that allow the recall of trial court judges for any reason. The others are Arizona, North Dakota, Oregon and Wisconsin.
There are, however, other ways to boot a state court judge off the bench. One such mechanism is a retention election, a periodic ballot measure that asks voters whether an appointed judge should be kept in office. California and many other states have retention elections, also called merit elections, for judges at the intermediate and supreme court level. The bulk of the time, judges pass those elections uncontested.
In 2010, voters ousted three Iowa Supreme Court justices who were part of a unanimous ruling that legalized same-sex marriage in the state. Only those three were up for a retention election following the decision. Decades before that, then California Supreme Court Chief Justice Rose Bird was removed from office in 1986 through a retention election vote after a public campaign was waged over her opposition to the death penalty.
Robert Byer, chair of the appellate division of Duane Morris‘ trial practice group in Pennsylvania, said he saw the Persky recall campaign as a harbinger of future such efforts. He pointed to the more recent push by Republicans in Pennsylvania to impeach several state supreme court justices over a decision in a case dealing with gerrymandering. That effort has thus far not gained traction.
“I think it’s part and parcel of the polarization that’s out there,” Byer said.
Maida Milone, president and CEO of Pennsylvanians for Modern Courts, said she views recalls similarly. “Threats of impeachment for judicial decisions, outside the context of ethical violations or acts that bring the judiciary into disrepute, can seriously undermine the independence we need—but we don’t always welcome—in the judiciary,” she said.
However, Milone said retention elections like those permitted in Pennsylvania, where disgruntled voters ousted a sitting state Supreme Court justice in 2005 after a controversial pay raise, are different. Retention elections are an “an in-depth opportunity to assess the overall decision-making of an individual jurist” over a number of years, she said.
If there is one lesson that future opponents of a sitting judge can learn from the Persky recall campaign, it’s that social media can play a huge role in bringing pressure to bear and sustaining the anger against a judge. Persky became the subject of an unprecedented social media firestorm after a lengthy and emotional statement by Turner’s victim, known as “Emily Doe,” was published by BuzzFeed and then shared millions of times.
But the fact that social media can be an effective organizing tool is also obvious to many active in politics by now. It’s also worth noting that the Persky recall campaign tapped into a broader movement focused on addressing the abuses of women by men in power in the form of #MeToo, helping to keep the issue top-of-mind.
U.S. District Judge Jeremy Fogel, director of the Federal Judicial Center in Washington, D.C., said he viewed the Persky case as unique in many ways. Whereas the Iowa and Bird cases involved courts of last resort for the states, Persky was a trial court judge at the county level, he noted. Persky’s opponents, led by Stanford University Law professor Michele Dauber, understood the recall process and were well organized and well resourced.
“I do think in a lot of ways this case was a perfect storm,” Fogel said. He added that, while he’s uncertain as to how many cases—even controversial ones—will be met with similar blowback, he is concerned the case establishes a road map for people who want to oust a judge when they disagree with a decision.
Geyh noted that typically, as was the case in the Iowa vote, members of the judiciary have faced criticism from political conservatives who complain of activist judges. That wasn’t the case with Persky, who appeared to face the strongest opposition from progressives. But that doesn’t mean those with different ideological views won’t take a page out of the same playbook, he said.
“It usually is conservatives who are angry that someone didn’t get the book thrown at them,” Geyh said. “And I think we now have precedent to say, ‘Yeah, this is how we do things in California.’”
Persky won’t be the last judge to preside over the Turner case. His lawyers appealed his conviction, saying that references to his assault of Emily Doe taking place “behind the dumpster” were prejudicial. The case is pending in California’s Sixth Appellate District Court.
Supporters of the recall campaign acknowledge that recalls are rare. But they argue Persky’s sentencing of Turner, who served three months’ jail time for crimes that potentially carried 14 years in state prison, was so egregious that it justified taking that step.
“I don’t think anyone need fear for judicial independence or that we’ll see a raft of judicial recalls. Nor does this signal a general ‘get tough on crime’ message beyond the context of leniency toward violence against women that should change the way judges approach their jobs,” said Mark Lemley, a partner at the California firm Durie Tangri and a professor at Stanford Law.
“This is the first recall of a judge in 86 years. There’s a reason for that: Recalls are hard. Really hard,” Lemley added. “It is, and should be, hard to remove a sitting judge. We do it only in extreme cases. This was one.”