Should the Public be Able to Elect and Dismiss Judges?

In NSW, magistrates and judges are appointed by the governor in council upon recommendation by the state’s attorney general.

They may be considered for appointment by applying for a job vacancy or after being nominated by another party.

In the former case, expressions of interest are received and reviewed by a panel comprising:

• The relevant head of jurisdiction,
• The secretary of the Department of Justice,
• A leading member of the legal profession, and
• A prominent community member.

The selection panel will go through the expressions of interest and create a shortlist of candidates who are then interviewed. Once the interviews are completed, candidates are ranked as being highly suitable, suitable, or unsuitable for judicial office.

A report is then provided to the attorney general.

Expressions of interest generally remain active for 12 to 18 months, and during this time, applicants who have been deemed suitable for judicial office can be drawn upon to fill judicial vacancies.

Under the nomination process, the nominator is required to lodge a submission with their name, address and contact number, as well as the details of the nominee.

The nominator is also required to set out the nominee’s background and personal qualities to demonstrate he or she has the necessary qualifications, attributes and experience for the position.

The nominee must communicate in writing that they agree to be considered for the appointment.

Removal of magistrates and judges in NSW

Once appointed, it is very difficult for a member of the NSW judiciary to be removed from office before their retirement age of 72.

In our state, a magistrate or judge can only be dismissed by the governor on address from both houses of the NSW Parliament in the one session.

The only reasons that can justify the removal of a judicial officer in our state are proved misbehaviour or incapacity.

Judicial officers in NSW are given the additional protection of section 41 of the Judicial Officers Act 1986 which requires a report of the Conduct Division of the Judicial Commission before judicial officers can be removed.

The provisions are intended to preserve the independence of the judiciary – in other words, to guard against magistrates and judges being swayed by political and public pressures.

United States

However, the situation in the United States is very different.

There, members of the public can petition to elect and remove unpopular state officials from office.

Removal of unpopular US judge

In the state of California, superior court judges can either be appointed by the governor or elected by the people.

Regardless of how they come to office, judges serve a six-year term and can be voted out in a public election.

Californians recently used this power to remove a state judge who was publicly slammed for sentencing a man to six months in prison for sexually assaulting an unconscious woman.

The unpopular decision

The campaign against Judge Persky began in June 2016 when he sentenced Brock Turner, a Stanford University swimmer, to six months in the county jail after he was convicted by a jury of three counts of sexual assault.

Mr Turner had faced up to 14 years in prison, and according to legal commentators, sentencing guidelines suggested an appropriate sentence was at least two years. The prosecution had asked for a minimum of six years.

In the result, Turner served just three months behind bars before commencing three years on probation.

The controversy

The case attracted global media attention, compounded by Turner’s father writing “That is a steep price to pay for 20 minutes of action” in a letter arguing that his son should only receive probation.

The victim impact statement of the anonymous victim was released to the public and received an outpouring of sympathy on social media.

Judge Persky faced a serious and sustained public attack despite having followed the probation department’s sentencing recommendation, and the fact that the California Commission on Judicial Performance found no bias in his decision after a review some months later.

Persky’s sentencing obecame a focal point for other debates and discussions – about the embedded ‘culture of sexual assault’ at universities, about class privilege, and the way the criminal justice system handles sexual assault.

The campaign against the judge gained further momentum with the #metoo movement.

The vote

In a special election last week, Californians voted by a majority of around 60% to have Judge Persky ‘recalled’ (removed) from office.

It is the first time this has occurred in almost a century, and Michelle Dauber, a Stanford law professor, described it as a “victory for girls and women everywhere.”

“We voted that sexual violence is serious and it must be taken seriously by our elected officials”, she stated.

“In this historical moment, when women’s rights are under attack, the women and many men of this county stood our ground”.

But while many legal professionals have agreed the sentence was too lenient, and that all perpetrators should be held fully accountable for crimes, they say the recall of Persky sets a dangerous precedent, undermining the integrity of the justice system and threatening judicial independence.

Judicial independence

Judges have to make tough decisions and are often criticised for them.

However, if they feel pressured to make decisions based on public opinion, it could have serious ramifications.

The ‘Brock Turner Syndrome’, says one public defender, “sends a dangerous message to judges everywhere: If we don’t like one decision you make, you’re out.”

He is concerned that judges will “become increasingly cautious about exercising discretion, worried that they might be punished for leniency.”

This could lead to judges preferring prison over restorative justice alternatives for fear of retribution from the voting public, whose knowledge of specific cases and the criminal justice system as a whole is often limited.