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amendments were defeated almost overwhelmingly. The Initiative and Referendum measure was then adopted by a vote of 71 to 0.
In the two Houses, out of 120 members 106 had. voted for the Initiative Amendment, and only one against it.
THE RECALL OF THE JUDICIARY.124
Prominent Progressives Took Definite Stand Against Making Judicial Officers Subject to the Recall—Effect of the Debates on the Subject and of the Criticism of Decisions in the San Francisco Graft Cases Was to Strengthen the Position of Those Who Held That no Exception Should Be Made.
The Republican and Democratic 1910 platforms, declared for the "Initiative, Referendum and Recall." There was no reservation made in the declaration of either party. But it developed at the test that either the Recall paragraphs of the two platforms were not carefully read, or some who read them did not grasp their meaning.
No sooner had the administration taken up Recall legislation, than strong opposition to the Recall of the Judiciary developed in the ranks of the Progressives
124 The direct legislation measures discussed in this and the two chapters to follow include only those which were submitted in the form of Constitutional amendments which were adopted, or bills which became laws.
During the session a large number of proposed amendments and bills providing for Initiative, Referendum and Recall under various plans were introduced in both houses. Among these were A. C. A. No. 3, Held, relating to the legislative power of The People; A. C. A. No. 4, Held, relating to the recall of officers; A. C. A. No. 7, Beatty, relating to the election, terms and recall of judicial officers; A. C. A. No. 8, Griffin, relating to the legislative powers of The People; A. C. A. No. 10, Griffin, relating to the right of The People to recall public officials and A. C. A. No. 19, Beatty, relating to the legislative department of the State.
themselves.125 Progressives of the type of William Denman, Charles S. Wheeler and Curtis Lindley, held that to provide for the Recall of the Judiciary would be a blow at the very foundations of our government.
On the other hand, a second group of Progressives, numbering men quite as conservative as the first group,128 took the ground taken by Governor Johnson in his inaugural address, that the Recall should be made to apply to every official, the judicial as well as the executive and legislative.
So marked was the division of the Progressives on this question, that the Committee on Direct Legislation appointed by the Republican State Central Committee to frame constitutional amendments to cover the Initiative, Referendum and Recall did not include the recall of the
125 Charles S. Wheeler, in the Heney-Wheeler debate, before the Senate and Assembly Judiciary Committees, Feb. 3, 1911, in speaking against the Recall of the Judiciary said:
"I purpose to have you understand at the outset where I stand on this question. I consider myself a Progressive Republican. I stood on this Republican platform as I understood it. I understood that this Republican platform provided for the Recall, but I did not understand that this Republican platform bound the party for which I stood in this campaign to strike at the very foundations of the government in which I live and which I have lifted my hand to Heaven and have given my oath to support."
126 "I believe," said Judge J. V. Coffey, for more than a generation a member of the Superior Bench for San Francisco County, "in the universal application of the Recall. If The People are competent to elect in the first instance, they certainly should be competent to re-elect or recall, really equivalent terms."
"It must be admitted," said Judge W. B. Nutter of the San Joaquin County Superior Bench, "that he (the judicial officer) of all officers, is the most important. By his judgment the property rights and personal liberties of all who come before him are determined. If he faithfully performs his duties as the law requires that he should, he need have no fear that The People who have chosen him by their ballots will recall him from the position to which he has been elected, and if he fails to perform such duties, then no other officer, in my judgment, should be more quickly recalled."
judiciary in the original draft of the Recall measure which they prepared.126a
At the informal meeting of citizens and members of the Legislature at the Palace Hotel in San Francisco, a few days before the Legislature convened, to hear the reports of the several committees that had been appointed by the Republican State Central Committee, the committee on Direct Legislation offered a Recall amendment which included all elected public officials. Nevertheless, the division among those present on this issue was marked, Mr. William Denman in particular taking a stand against including the judiciary in the provisions of the measure.
This marked division among the Progressives offered the Reactionaries wide opening, of which they were quick to take advantage.
The old machine element was opposed to the Recall principle; with the machine in the saddle, no Recall amendment, with or without the Judiciary excluded, Iwould have been submitted to the electors.
When the Legislature convened, the situation at Sacramento on this issue was as follows: All the Reactionaries were opposed to the Recall; all the Progressives desired the adoption of a Recall amendment; a majority of the Progressives insisted that the Recall be made to apply to all elected officials including judges; a minority of the Progressives insisted that the Judiciary be excluded from the Recall provisions.
With the fine tact of the professional politician, the
126a The amendment as originally prepared by the committee included the recall of all elected officials, with the exception of judges of courts of record.
Reactionaries carefully refrained from entering into the dispute between the Progressive factions. The appearance of an old-time machine leader or lobbyist of the type of Jere Burke, or Johnnie Mackenzie, or George Hatton, at Sacramento against the Recall amendment during the 1911 session, would have gained votes for the amendment. The Reactionaries, in resisting the amendment, found more effective allies among the Progressives than could possibly have been picked from their own ranks. So the Reactionaries permitted the open opposi-. tion to the Recall to come from Progressives, themselves standing ready to widen the breach whenever opportunity offered.127
Thus, when the Recall amendment was considered before the Senate and Assembly Judiciary Committees, the Reactionaries took no part, leaving a Progressive, Charles S. Wheeler, to present the arguments against the Recall of the Judiciary, which, in a different situation,
127 The situation was not unlike that of two years before when the 1909 Direct Primary bill was under consideration. All the Progressives, in 1909, wanted a Direct Primary law passed, but when it came to the logical application of the direct primary principle the Progressives divided, as they divided in 1911 over the application of the Recall.
The majority of them wanted the direct primary principle applied to the election of United States Senators, giving The People a State-wide, practical, pledge-backed vote, as in Oregon. The more conservative opposed this-just as they, at the 1911 session, opposed the Recall of the Judiciary-and insisted that the vote for United States Senators be kept within party lines.
The machine Senators were quick to take advantage of this division and finally succeeded in preventing the adoption of every practical plan offered to secure a popular expression of choice for United States Senator.
Nevertheless, the adoption of a practical plan for choosing United States Senators was only delayed. The 1911 Legislature adopted the Oregon plan, which conservative Progressives stupidly assisted crafty Reactionaries in defeating in 1909.
Just as the machine element employed the division of their opponents in 1909 to prevent good legislation, they employed the division over the application of the principle of the Recall in 1911, but not so successfully.