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ing the legality of a provision of a city charter which allowed the sale of intoxicants. But no serious attempt to recall a judge was made until three years later, when a petition for the recall of a circuit judge was widely circulated, charging him with giving, in a notorious murder case, partial instructions which biased the jury in favor of the defendant. Later lawyers started a recall movement against a municipal judge upon the charges of bringing proceedings without complaints, of favoritism, of illegally releasing prisoners after sentencing them to long terms, of decisions contrary to the precedents of the court, including precedents set by himself.
What are the proper grounds for the recall of an official is a question upon which there must be much difference of opinion. It has been strongly urged here that an officer should never be recalled except upon charges of misfeasance or malfeasance in office. And the most ardent advocates of the recall recognize the fact that it should be used with caution. "The recall is a good weapon, but one to be sparingly used. There should be but rare or occasional use of it, but the people would better keep it laid up in their toolhouse to use in case of emergency. Frequent or foolish use of the recall would create sentiment against it, and might result in its abandonment. Its own friends would forsake it if by its overemployment it should keep communities in a state of turmoil and strife."
The subject of the proper grounds for a recall has been discussed by the press chiefly in connection with criticisms of the recent attempt to recall a circuit judge the only recall movement in the state which has excited much general interest. The leading journal favorable to the institution has these comments:
"In reality it is not Judge Coke that the good people of Roseburg are after. Their real fury is against McClallen, but for the moment it is Judge Coke that is in sight.
"The public sympathizes with them in their indignation. McClallen shot down a highly esteemed citizen. He escaped punishment. The indignation of the Roseburg people is a natural sequence.
"But it was not Judge Coke that pulled the trigger of the
murderous revolver. McClallen did that. It was not Judge Coke that fixed the requirements of the jury instructions at the trial. It was the law of the land that did that. Parts of the very instructions used were the dictum of the Oregon supreme court in the Morey case.
"On sober second thought, the Roseburg people must realize that fury is being visited on the wrong man. It was McClallen that killed a citizen. In a Portland case where the instructions on vital points were the same as Judge Coke's, the jury convicted. Had the two cases been tried contemporaneously, would the friends in one instance have used the recall because one court convicted and used it in the other because there was an acquittal?"
"Under the recall the people would place Judge Coke on trial. They would also have to try the McClallen case in full. They would have to know all the facts in detail to pass an intelligent opinion. They would have to have the law points explained. They would have to hear the instructions. They would have to study the decisions and precedents.
"They would also have to try the supreme court of Oregon, for the supreme court, in the Morey case, affirmed, in effect, the vital instructions given by Judge Coke. They would have to pass on the question of whether the supreme court was right or wrong. In short, they would have to supersede the supreme court and perform the functions of super supreme justices. In exercising the recall in such an instance, the electors of the second district would, in effect, assume all the functions of one of the coördinate branches of the state government of Oregon, setting aside the judiciary for the moment and making each elector in the second district a super supreme judge, exercising power above the judiciary and above the constitution itself.
The people are not in position to pass upon the legal questions involved in the instructions to a jury. They cannot be constituted and do not want to be constituted a super supreme court, superseding and setting aside the constitutional supreme court. They are sane and sound in their judgments on ordinary
issues, but they never have claimed nor never will claim that they are skilled in the law.
"In the very nature of things, it is as the confusion of languages at the Tower of Babel for an electorate of laymen to attempt determination of whether a judge is right or wrong on a legal question.
"If a judge goes on the bench in a state of intoxication; if a judge permits a railroad attorney to finance his campaign if a judge becomes a known corruptionist, a political trickster or dissolute in his habits, then he is within the scope of what prudent men accept as possible reason for invoking the recall."
A short time before this recall movement began, our leading conservative journal said:
"The presence in the Oregon constitution of the judicial recall for more than two years and the failure here to experience the dire results predicted by the eastern press is fairly conclusive of one of two things. Either judges are very rarely compelled, in deciding cases in accordance with the law and evidence, to ruffle public sentiment, or else the public is capable, even though ruffled, of discerning between a strict judicial duty and venality or incompetence. But so far the
recall has not been used
against the judiciary. True, we have never had a Schmitz liberated through sheerest technicalities nor the popular will grossly subverted. We believe, however, that if the courts declared some popular law unconstitutional, the people would not seek to recall the court in the absence of evidence of corruption, but would amend the constitution through the initiative. Probably the recall will never be invoked in Oregon against a judge unless corruption is charged."
It might be contended that where the movement against a member of the judiciary is organized and guided by lawyers, as in the recent case of a municipal judge, there is possibly less danger that the "electorate of laymen" will go wrong in determining the question of recall.
It has been objected that the law does not limit the statement of reasons for the demand of recall to "justifiable" rea
sons, and that it thus opens the way for grave abuse. Some change here might well enough be made, but how effective any such limitation as to reasons would be is doubtful, since, in practice, as has been observed, the real motives back of the recall movement may not be mentioned along with the "justifiable" reasons in the petition.
As a check upon the abuses of the recall, some of its leading advocates have considered that it might be well to amend the law to increase the percentage of signatures now required for the filing of petitions. But a more rational change would be to reform the methods now employed for securing the signatures. Although it is probably true that people do not sign recall petitions thrust before them on the streets and elsewhere as readily as they do some other kinds of petitions, nevertheless under the present system there is great probability that accommodating persons will by their signatures aid a movement for the merits of which they care nothing. For this reason, and also as a guard against fraud-forgery of signatures to recall petitions has been charged-it should be required that the petitions be left at some public office for signature. "The only possible excuse for the recall is that it should be spontaneous and that each signer should be sufficiently interested to go to some public office and sign the petition-not wait to have it shoved into his hand with a 'sign here' from a 5-cents-a-name getter."
The expenses of the recall elections-both to the public and to candidates have doubtless had some effect in discouraging recall movements. The six months' exemption provision has been another check, and possibly some danger of action for libel this was threatened in one case where the charges in the petition were very grave-has discouraged the circulation of petitions in some cases. Fear of the failure of a recall movement under the particular circumstances caused in one case a lack of suitable candidates against the official attacked, and further action was hence delayed. Where the offense has been a legislative act, the possibility of invoking the referendum has doubtless diminished the demands for recall to some extent. "The good
sense of the electors" is of course the chief reliance of the advocates of this instrument of government against any danger from its unwarranted use.
The management of recall movements has been undertaken either by organizations already in existence-labor unions and various kinds of civic-betterment clubs-or by temporary groups, large or small, formed for the specific purpose. Sometimes mass meetings have been called and committees appointed to conduct the campaign, or one member of a group has been designated for this purpose. In the case of the circuit judge, where the district covered a large area, an attorney was hired to take charge. The petitions are circulated either by paid circulators or gratuitously by persons sufficiently interested. They are circulated at a mass meeting, at a revival meeting (in one case), on the streets, etc. The expenses, if any, are paid by private subscription. In some cases counter-petitions have been circulated against the proposed recalls.
When an official is recalled at the election, it may be impossible to determine whether he was deposed upon the grounds, asserted or real, which caused the demand for the recall. For at the election he must at the same time justify his official conduct, compete with the political ambition of the other candidates, and face any personal opposition by the voters.
There "are represented as important factors in the recall caprice of the public, immaterial and extraneous issues, politics, personal revenge and deliberate misrepresentation. It is unjust, it is degrading, it is inimical to his independence, that he should be compelled to defend his acts or policies or decisions with one hand and combat political ambition and personal popularity of candidates who may oppose him with the other." This is the case especially when there are several candidates at the recall election. But in the elections so far held, only once has an official been compelled to stand against more than one competitor.
Of course no provision of law can entirely segregate the proper issue of the recall election, but something may be done in this direction by changing the law so that the election of