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the Legislature could have summarily removed any or all of the Justices of the Supreme Court, even though their conduct in the Ruef case and all other cases were above reproach.
But the Legislature took no such drastic action.
Because, regardless of their views of the conduct of individual Justices, or of the Justices' affiliations, associations and attitude, the members of the Legislature recognized that The People of California would not sanction arbitrary removal of any official, be he Chief Justice or Constable.
"The People," said a Progressive leader to the writer during the days when the proposed action against the Supreme Court was under discussion, "do not desire arbitrary ouster any more than they desire whitewash of the members of the Supreme Court."
When Mr. Wheeler had suggested removal of Judges by concurrent resolution, he had stated, "All that stands between him (the accused Judge) and your wrath is your high oath as a member of the House and the Senate."
But it seems there is something more standing between the Justices and ouster; namely, the sense of justice of The People, which will not permit arbitrary removal from office of a judge whom The People's votes have elevated to the bench.
A member of the Legislature might violate that "high oath" to which Mr. Wheeler referred so flatteringly. But a Legislature will hesitate long before outraging the sense of justice of The People.
The Legislature will never, in California, while pub
lic opinion continues as it is, arbitrarily remove a judge from office by concurrent resolution.
And, the proponents of provision for Recall of the Judiciary insisted, the same public opinion which will always prevent arbitrary removal by the Legislature, will prevent unjust removal by means of the Recall, for the fair-minded people would not sanction such a course.
"If you had," said Heney in the Heney-Wheeler debate, "a Recall that trusted the right of removal, instead of trusting it to 120 members of the Legislature, trusted it to 380,000 electors, and required the majority of them to vote for removal of an accused Judge before he could be deprived of his office, what honest Judge would stand in fear of it."
And to this view, as the session advanced, many Progressives who in the beginning had doubted the wisdom of applying the Recall to the Judiciary, found themselves converted.
ADOPTION OF THE RECALL AMENDMENT.1
Opponents of the Measure Resisted Its Adoption at Every Stage of Its Consideration by Senate and Assembly-The Amendment Was Finally Adopted, with Only Fourteen Members of the Legislature Voting Against It.
Those charged with drafting the Recall constitutional amendment, did not have the measure ready for introduction until nearly three weeks after the Legislature had convened. The amendment provided for the Recall of all elected officers, executive, legislative, judicial.
The measure was introduced in the Senate on January 20, but nearly a month elapsed before the Senate
147 The Recall amendment was introduced in the Upper House by Senator Lee Gates of Los Angeles, and in the Lower House by Assembly William C. Clark.
The main provision of the Senate (the Gates) amendment, as it was originally introduced, were, that any elected officer of the State could be subjected to a Recall election upon the petition of qualified electors, equal to 8 per cent. of those voting for all candidates for Governor, with the further proviso that an officer elected in the State at large, rather than in a political subdivision, could only be subjected to such Recall election by a petition signed by at least 50,000 qualified electors. The officer sought to be recalled, as well as those nominated to succeed him, would all have their names placed upon the Recall ballot, and the one receiving the highest vote would be declared selected to serve the remainder of the incumbent's term.
The Clark Assembly amendment was not introduced until five days after the introduction of the Gates measure. During these five days a number of conferences were held between Senator Gates, Assemblyman Clark and others interested in the direct legislation. As a result of these conferences several changes were made in the Clark amendment before its introduction.
The Clark measure omitted provision that a petition for the recall of a State officer must be signed by a minimum of 50,000
Judiciary Committee, to which it had been referred, acted upon it.
The delay was due to several causes.
In the first place the proponents of the measure had many amendments to offer, even after the measure had been introduced. The preparation of these amendments caused more or less delay. And the opponents of the
electors. The Clark measure also differed from the Gates amendment by providing that preceding the names of the candidates upon the Recall ballot there should be the question: "Shall (name of person against whom the Recall petition is filed) be recalled from the office of (title of office)?" An additional provision was made that unless the elector vote "yes" or "no" on this question his vote for candidates for the office shall not be counted. Under the Clark amendment, the incumbent could be recalled only in the event of a majority of all those voting at the election, voting in favor of declaring his office vacant. The incumbent's name is not, under this provision, placed among the names of the candidates opposing him, on the ground, that if the majority of those voting vote in favor of the incumbent's recall, it is not just that his name should be again voted upon. If the majority of those voting at the election shall vote for the recall of the incumbent he shall be removed from office, upon the qualification of his successor. His successor shall be that candidate who, at the Recall election, receives the highest vote for the office. If a majority do not vote for the incumbent's recall he will, of course, continue in his office.
The Senate (Gates) measure was amended to include these changes. There were also two other important amendments adopted in the Senate Judiciary Committee.
The first of these raised the percentage required to institute Recall proceedings against the State official from 8 per cent. to 12 per cent.
This did away with the minimum number of 50,000 signatures required under the original draft of the amendment to invoke a Recall election against an official.
The second change provided that all petitions for the Statewide officer shall be signed in at least five counties by not less than 1 per cent. of the entire vote cast in each of said counties for all the candidates for Governor at the last preceding general election.
The second of these amendments raised the percentage_required to subject the district officer, that is to say, an officer elected in a political subdivision of the State, to 20 per cent. instead of 12 per cent.
The amendment provides that no officer shall be subject to Recall until he shall have held office for six months. This does not apply to members of the Legislature who are made subject to Recall five days after the organization of the Legislature. In the event of the incumbents sought to be ousted not being recalled, the legal expenses of the Recall election are to be paid by the State.
As in the case of the Initiative and Referendum amendment the Recall is made applicable to cities and counties.
Recall were quite willing that these delays should be prolonged.
These opponents, some of whom had by long practice grown clever as blockers of good legislation, not only acquiesced in the delays, but craftily encouraged them. The friends of the measure found it very easy not to bring the Recall to a vote in the Senate Judiciary Committee to which it had been referred, but along toward the middle of February, when they were ready to proceed, these proponents found difficulty in compelling committee action.
On February 15, an attempt was made to bring the amendment to final vote. But no vote was taken, and the measure went over until the following day, February 16. On February 16, a series of objections from various opponents held the fateful, final vote off for another twenty-four hours. But on February 17, after three days of effort, the Senate Judiciary Committee by a vote of 10 to 3, reported the Recall amendment back to the Senate with the recommendation that it be adopted.
But this action did not come without a struggle which kept the committee in session for hours beyond the regular time of adjournment, although the effort against the Recall was in pitiful contrast to the blocking tactics which were so effectively used in the Legislature when Wolfe was Senate leader and Leavitt his right-hand man.
Senator Wolfe wanted such provision in the measure as would prevent the Recall being twice applied to the same official during a single term of office.
Wolfe's proposal stirred Senator Gates, author of the amendment, to scathing reply. With sting-filled, hon