Stanford rape case raises question of when judges should be punished

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A furor was incited in California when Judge Aaron Persky sentenced Brock Turner, a Stanford student-athlete, to probation with six months in jail for sexual assault.

The judge had reasoned that a longer prison sentence for the three felony convictions would have “a severe impact” on the young man.

A petition drive ensued, boosted by social media. The national media have called it a recall petition, but at least one online petition specifically indicates it is not a recall petition but rather one for impeachment.

What’s the difference and can such a thing play out in Wisconsin?

Recall

A judge is subject to recall under Art. 13, Sec. 12 of the Wisconsin constitution and sec. 9.10 of the statutes. Indeed, the first-ever recall of a Wisconsin elected official was of a judge — Archie Simonson from Dane County.

In May 1977, he lightly sentenced three teenaged boys for rape of a teenage girl at their high school. He felt the boys should not be punished severely for “reacting normally” to Madison’s sexually permissive society in which, in his opinion, women wore provocative clothing.

He was five years into a six-year term then, and a Wisconsin State Journal editorial in June of that year opined that it was “unlikely he had the confidence and respect of the majority of voters in Dane County, qualities vital to a presiding judge.”

After a successful recall petition drive, an election was held in September 1977. Moria Krueger won. She was the first woman judge elected in Dane County and went on to hold the office for 30 years.

No other Wisconsin judge has ever been recalled.

Impeachment

A judge can be impeached under Art. VII, Sec. 1 of the Constitution and sec. 17.06 of the statutes. Impeachment happens through a two-step process.

The state Assembly has the responsibility of voting for impeachment if it discovers compelling evidence of “corrupt conduct in office, or for crimes and misdemeanors.” Then, unlike other elected officials who remain in office while an impeachment trial proceeds through the Senate, judges must cease judging and can only return to their official duties if they are acquitted.

No Wisconsin judge has ever been impeached.

Legislative address

A more arcane procedure for removal from office is legislative address. It is authorized under Art. VII, Sec. 13 of the constitution and sec. 17.06 of the statutes, and applies only to justices and judges.

An address is a document which charges a judge with misconduct or specifies that the judge is not physically or mentally qualified to exercise the functions of judicial office. The judge must be given the opportunity to be heard. A two-thirds vote of each house of the legislature is required for removal.

As is the case with impeachment, no Wisconsin judge has ever been the subject of an address.

Discipline

Disciplinary measures against a judge can range from a warning or private reprimand imposed by the Judicial Commission to a public reprimand or suspension imposed by the Wisconsin Supreme Court. Discipline is meted out for violations of the Judicial Code of Conduct, SCR Ch. 60.

One of the most notable cases in state history involved Judge Ralph Gorenstein. Among his many intemperate remarks was an especially egregious one that caused an uproar in Milwaukee County in 1984. During a trial he spoke to a 21-year-old victim of sexual assault outside the presence of the jury:

“Now sit down, stop crying. (The defense attorney)’s questions have been far from probing. His tone of voice is less harsh than mine is now. I think the female response to (sic) crying to any tough situation is inappropriate in a courtroom. You collect yourself and conduct yourself as a mature adult or I’m going to dismiss this case for being overly prejudicial. It’s prejudicial to the defendant in this case for you to sit there and bawl your eyes out at these questions. We had a victim who underwent a lot more than you did last week and she sat there and answered the questions in a business-like, straightforward answer-like way, and I think you can do the same thing. Now collect yourself, conduct yourself like an adult, please.”

Despite talk of recalling Gorenstein, a recall petition was never filed. What actually propelled Gorenstein off the circuit court bench was John Franke’s announcement that he would run against him in the spring 1988 election. Rather than stand for re-election, Gorenstein retired at the end of his term, on July 31, 1987.

Even so, he was disciplined by the Wisconsin Supreme Court in 1989. The court imposed a two-year suspension from the office of reserve judge because of his “persistent and aggravated” violations of the Judicial Code evidenced by insulting, racist and immoderate comments while he was a circuit judge.

What’s good for the goose, however, may not be sauce for the gander. Several years ago Justice David Prosser’s conduct with another justice was a subject of censure. Despite discipline being recommended by a special panel of three court of appeals judges, the matter was never resolved because too many of the justices recused themselves, arguing that they might also be asked to testify as witnesses of the incident.

That suggests the possibility that although justices are subject to the Judicial Code just as judges are, it may not be possible, as a practical matter, to discipline a member of the Supreme Court because of other members’ recusals.

Commentary

Disciplining a judge is the most appropriate means of course correction for a judge’s conduct. It gives a judge an opportunity to be confronted with and change his or her behavior and thereby become a better judge. Moreover, if the misconduct is severe, the discipline imposed can be as severe as a suspension.

The question now posed by the Stanford case is whether it is wise to use any of the three methods of removal from office. It is particularly dicey when the reason is disagreement with a single exercise of a judge’s discretion.

As Marquette University Law Professor Daniel Blinka noted, “I’d hate to see judges recalled for one decision. They’re elected to six-year terms and that should be the record they’re judged on.”

This reflects the majority viewpoint: Unless there is malfeasance or a pattern of unfairness, a judge should not be removed from office.

But does an inordinately lenient sentence constitute malfeasance? One touchstone seems to be whether the sentence is so out of sync with the mores of the community that it violates public trust and dissipates confidence in the judge’s acumen. Such was the case with Judge Simonson.

Judge Persky’s situation bears some similarity, and is not helped by the fact that the sentence flew in the face of the statutory mandate for a minimum term of two years imprisonment. The recall drive also occurs within the context of his being unopposed for re-election this fall.

One thing is certain: Judges across the country are watching the unfolding events in Santa Clara County.