REPORT

OF THE

COMMITTEE TO OPPOSE THE JUDICIAL RECALL.

To the American Bar Association:

The undersigned committee, appointed for the year 1912-1913 under resolution of this Association adopted at its annual meeting in 1911, respectfully submit the following report:

The present committee has continued to its utmost ability the work imposed upon the first committee which was appointed for the year 1911-1912, as directed by the resolution of 1911 to "take such steps as it may deem best to expose the fallacy of the Judicial Recall." The scope of its work has been to oppose both the Recall of Judges and the Recall of Judicial Decisions, and the title of the committee has been made to conform therewith. It now stands as the "Committee to oppose the Judicial Recall."

On account of the spreading of the agitation for the Judicial Recall, and by reason of the fact that the legislatures of about 40 states have held their annual sessions during the past year, the work of your present committee has been exceptionally active and extensive.

We have had two general objects in view: First, to carry on as widely as possible, consistently with the limited means at our disposal, a campaign of education throughout the United States in opposition to the Judicial Recall; and, second, to direct or assist, by special work through this committee, the various local campaigns, in different states and their legislatures, in opposition to these measures.

We have at all times kept in close touch with this question as presented in various states and localities, as well as throughout the country at large. Through correspondence between the Chairman and various members of the committee, and between them and opponents of the Judicial Recall in various localities,

we have promoted, wherever necessary, special campaigns. We have encouraged and procured the writing and publication of various discussions in leading magazines and periodicals and newspapers, and have participated in public discussions on numerous occasions at various points in the United States. Where a direct contest was on in a state or in a legislature, we have promoted and organized opposition which, in most instances, has been successful.

In connection with our work we have distributed various printed discussions throughout the United States which have been sent to the leading newspapers, lawyers, citizens, libraries, officers, state and federal, all federal and state judges, and members of legislatures. Altogether, we have circulated something over 350,000 pamphlets. These have included Hon. Wm. B. Hornblower's address on "The Independence of the Judiciary—The Safeguard of Free Institutions"; Senator George Sutherland's address, "The Courts and the Constitution"; President Butler's address on "Why should we change our Form of Government"; also President Butler's address on "What is Progress in Politics"; Dean Thayer's article on "Recall of Judicial Decisions"; Rome G. Brown's address on "The Judicial Recall-A Fallacy Repugnant to Constitutional Government"; also Mr. Brown's address on "The Judiciary as the Servant of the People."

We have also promoted discussions at meetings of many local Bar associations, state, county and city, and provided speakers before students of universities and particularly of law schools. Besides covering all the libraries in the United States, we have, as part of our propaganda, supplied anti-Judicial Recall literature to every student in every law school in the United States. In most of the school and university debates upon this subject, of which there have been many hundred during the past year, the results of the distribution of our literature and the assistance which we have given have been shown from the fact that generally the contestants against the Judicial Recall have been winners of such debates.

The distribution of printed discussions has been facilitated by the fact that many senators in the Congress are active oppo

nents of these measures, and such senators have made, through our committee, distribution of anti-Judicial Recall pamphlets, printed in the form of senate documents, besides the other general circulation made under the direct supervision of the senators themselves. We wish to acknowledge our obligation to Clarence W. DeKnight, Attorney-at-Law, Washington, D. C., whose interest and assistance have greatly facilitated the work of this committee in distributing these pamphlets to various parts of the United States.

The significance and danger of the Judicial Recall are, in many states and localities, underestimated, even by some members of our committee. Because, here and there, up to the present time, no special local demand for the Judicial Recall has shown itself, it seems to be considered that the adoption in 1908 in Oregon of the Recall of Judges, even though later followed in 1911 in California, was not necessarily indicative of the danger of its further extension. It has been advised by one or two members of the committee that the distribution of literature in localities where there is, as yet, no open agitation for the Recall, might precipitate activity in its favor. The results have proven that such an attitude is not justified. The Judicial Recall measures are, in the first instance, enticing to those who do not really understand their significance. The result is, that in many localities a strong following in their favor has been slowly worked up, and that, where few would have thought them possible of adoption, they have been forced to a vote after a quick and spirited campaign and have either been adopted or have come very nearly to adoption. The result shows that the campaign of general education upon the subject, which we have undertaken, is the wisest course. This is on the same principle that a preventive, when an epidemic threatens, is more wise than to wait until some drastic action is required to counteract or to cure the effects of an existing malady. Our campaign has been on the lines of a course of hygiene, to educate citizens in advance to a healthful, wholesome, intelligent attitude upon the constitutional questions and upon the questions of policy involved in the proposition of the Judicial Recall.

Besides its adoption in Oregon and California by constitutional amendment, the Recall of Judges has been, within the past

year, made a constitutional provision in the states of Arizona and Nevada. It has been recently voted by the legislatures of the states of Kansas and Minnesota, to be submitted as a constitutional amendment for adoption by the people. At the last election in Colorado, constitutional amendments for both the Recall of Judges and for the Recall of Judicial Decisions, initiated by the people under the Initiative and Referendum, were adopted.

In Arkansas, a constitutional amendment for the recall of judges, initiated by the people, was passed at the 1912 election; but the state Supreme Court held that it had not been properly submitted and, therefore, not adopted. In Kansas and Minnesota the amendment proposed by the legislature excludes from the Recall election the selection of a candidate to fill the vacancy if the Recall is successful. This eliminates only one of the many objections, but through this manner of sugar-coating the measure which is proposed as a remedy, many legislators in the above states have been deceived into withdrawing their opposition to the Judicial Recall. In Colorado a case is pending in the Supreme Court questioning the regularity of the submission to the people of both amendments; but until that case is decided, both the Recall of Judges and of Judicial Decisions are in force in that state.

In many of the 40 or more state legislatures which have just adjourned, measures for constitutional amendments providing for the Judicial Recall were presented, and in some of them, while not successful, received surprisingly strong support. In North Dakota, after most strenuous contest, the Recall of Judges lost by one vote.

Minnesota is, thus, the first state having any of its territory east of the Mississippi River to adopt any form of the Judicial Recall, even by the vote of its legislature. The movement for its adoption seems to be one originating upon the Pacific Coast and to be spreading east. By continued work we may hope to prevent its adoption by the people even in Kansas or Minnesota. However, it is demonstrated that it is not safe to depend upon defeating it at the polls. The fight in each case must be made in the state legislature where it is more practicable to demonstrate

its fallacy by the education of a representative few than to depend upon a campaign before the entire body of the voters.

It is a mistake, however, to assume that the agitation has not become a serious one east of the Mississippi. It has already shown up strong, although without, as yet, sufficient strength for adoption, in the legislatures of Wisconsin, Illinois, Ohio and other states. In the recent Massachusetts legislature, a measure was presented and strongly urged for a constitutional amendment authorizing the Recall of Judicial Decisions "in all cases when a law otherwise duly enacted by the legislative authority of the commonwealth shall be held by the Supreme Judicial Court to be in violation of the constitution." In April last, there was introduced in the Congress a joint resolution proposing to the states the election of all federal judges by vote of the people, with a tenure of 12 years, and providing for the recall of all judges, both of the supreme court and inferior courts, at any general election at which presidential electors shall be chosen. A senate joint resolution was introduced in December, 1912, in the Congress, proposing a constitutional amendment providing that any decision of the Federal Supreme Court declaring unconstitutional an act of the Congress, may be submitted by the Congress to the electors, and that by vote of a majority of congressional districts and of the states, such act should, notwithstanding the decision of the Supreme Court, become a law. These measures have not met any considerable support, but it is significant that such measures as these should be even proposed and that they would find active supporters.

We do not at this time deem it necessary, as part of our report, to emphasize the vice of the Judicial Recall. This subject is now perhaps more generally discussed throughout the country than any other. While, whether considered by number or character, the weight of the discussion is overwhelmingly in opposition, there is, however, a thoroughly organized and persistent advocacy of the Judicial Recall.

We have appended as a part of this report a synopsis of the legislation or constitutional amendments adopted in the states above