Rep. Silber’s proposed constitutional amendment to allow recall petitions for judges (Monitor, 1/21) is a bad idea. As correctly pointed out by New Hampshire Bar Association President Richard Guerriero, such petitions would politicize judicial decisions. New Hampshire law already has ways to address problems when judges are way out of line, as Guerriero pointed out in his testimony on the proposed amendment.
Courts resolve disputes. And one party usually goes away unhappy. Courts also protect the individual — the individual’s civil rights and the individual’s property against the power of the state, and sometimes against the outcry of a mob (see To Kill a Mockingbird). Subjecting the court itself to the outcry of a yelling mob, in the form of a recall petition, undermines the rule of law and may make judicial decision-making more political.
Parties who lose court cases frequently blame judges. Some of those parties will seek to remove judges, either out of revenge or misunderstanding about why they lost their case. Many laypersons don’t understand why evidence was excluded from trials. They have difficulty understanding the hearsay rule (as do many lawyers, still) and other rules of evidence. Many people still think the “exclusionary rule” in criminal law is just a “technicality.” That rule excludes evidence because of an illegal search and it protects us all from invasions against our 4th Amendment rights.
People in court cases are in heated battles. This is especially so in domestic disputes, and more so if children are involved. The urge to “get back” at a judge who awarded custody to a spouse whom one now hates or to seek retribution against a judge who found one parent abusive can be strong.
Putting the hammer of a recall petition in the hands of unhappy litigants can be dangerous. Most judges work very hard to arrive at the correct result. It will be too easy for people to try to punish judges because the other parent got custody or because a person accused of a crime wasn’t convicted or got off on a so-called technicality.
There are many other things that parties in a court case might not understand. Sometimes experts are not allowed to testify in court because they do not properly qualify as experts based on the standards set out by law. Sometimes cases are dismissed at an early stage because a plaintiff cannot muster enough evidence to warrant the case going to trial.
People who are on the receiving end of these problems often feel they have been wronged by the judge. They can appeal, but that can be expensive. It is likely much less expensive for them to write a petition to have the judge thrown out of their job. Even if the judge defeats the petition by successfully explaining why their ruling or actions are correct the judge is put on the spot and must defend their work and their job in a public forum. This spotlight can be quite glaring if the case concerns a violent or notorious crime.
A judge must at times go against public opinion to correctly apply the law. It will be more difficult for judges to do their jobs correctly if they have to look over their shoulders because they have to worry about a recall petition.
Our courts also have many cases involving people representing themselves, i.e., “pro se” parties. People have the right to file lawsuits on their own. I have seen many, many people who do so but with no understanding of the fact that their lawsuits have no legal basis. Many of these people get mad at judges and the lawyer for the other side due to their own misunderstanding of the law.
Some of these people file judicial complaints because of their lack of understanding. If given the option to file a petition to end a judge’s career, the stakes become enormously high. And in this day of social media, it doesn’t take much to spread a lie.
The point of our courts and appointed judges is to do justice. The system is not perfect. Judges are human. A constitutional amendment for recall petitions for judges will make it more likely that our courts and judges might bend to popular will rather than correctly apply the law. The constitutional amendment for recall petitions should therefore be voted down.
(Corey Belobrow is an attorney with Friedman Feeney in Concord.)