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however, as yet reached the point where it is advisable to press the matter of repeal. The delay may be advantageous, for in the meantime Colorado will continue to furnish practical demonstrations in support of the arguments which we have urged against the recall of judicial decisions. One example is significant: The constitution of Colorado empowers the city of Denver to control its own local affairs. Denver, therefore, comes within the judicial recall amendment, permitting the citizens of Denver by a majority vote to recall a Supreme Court decision involving the enforcibility of a city charter provision as against the state constitution. That constitution provides for prohibition throughout the state. The “Wets” are in a majority in the city of Denver; and in the contest which is now on between the “ Wets ” and “Drys ” of Denver, the Supreme Court of the state will probably hold the constitutional state-wide prohibition clause to apply to Denver, whereupon the “Wets," within the city, will invoke the decision recall and by submitting such decision of the Supreme Court to the electors of the city will doubtless bring about its reversal. Many prohibitionists have heretofore strenuously advocated the judicial decision recall as adopted in 1912. They now see that it may result in at least a partial failure in Colorado of the prohibition movement; and that the idea of local option has been established, not only with reference to the liquor question, but also with reference to the question of the enforcibility of the decisions of the highest court of the state.

In California public opinion seems to be already tending to a repudication of judicial recall as adopted there. “The Pulse of the Pacific ” on this question is shown by the following editorial in the current number of the “Sunset” magazine, under the title of “ Intimidating Judges”:

“ There has been more or less trouble over franchise and trackage rights between the municipal and the private street railroad lines in San Francisco. This trouble culminated in July when the private company, after a full hearing, obtained an injunction against the use of certain tracks by the municipal lines. Through this injunction the municipal lines would lose a goodly share of their exposition business, and, in consequence, would have to discharge conductors and motormen.

“ Twenty-four hours after the decision the labor union of the municipal railway employees began recall proceedings against the judge who had granted the decision. So loud grew the

clamor against the decision that the presiding judge of the superior court took the case out of the hands of the trial judge and, practically without a hearing, set the injunction aside. A second San Francisco judge to whom the case was to be assigned refused to accept the assignment.

Is it more reprehensible to intimidate judges by political than by financial or social pressure? This question is asked without regard to the legal merits of the case."

In Nevada the movement for judicial recall has been turned into a movement to revoke recall of judges already adopted.

In Illinois the situation is summarized in the statement of a legislator who was formerly in favor of judicial recall, but who now says, “We have got done doing that sort of thing."

From Montana we hear that the matter was not mentioned in the recent state legislative assembly; "and were it not for the ravings of disgruntled Socialists it would die a natural death.”

In New York it is reported that owing to the militant attitude of the State Bar Association upon the subject, and the high standing of its members, who have presented a united front in opposition to this destructive vagary, such demand as heretofore existed for it in the State of New York is practically dead.” The lawyers there have united in denouncing judicial recall as “a measure designed and used by aspiring and unscrupulous demagogues." While the present constitutional convention in New York invites the suggestion of many vagaries, there seems to be no disposition seriously to propose any form of judicial recall; and, considering the make-up of the convention, it may be expected that such proposal will not meet anything but overwhelming defeat.

Without mentioning other states in detail, the conclusion seems to be unanimous that there is now less than ever before probability of the further extension in this country of this fallacy; and that in the states where it has been adopted the general sentiment has turned in favor of a movement to rid the state constitutions of this experimental excrescence which has been grafted upon them. This change is exemplified in a report that comes from Connecticut where it is said " that the supporters of the judicial recall in any form are so few that it is difficult to find them with a microscope, except one or two of the leaders of the Progressive Party, and they are so mum about it that it would seem as if they

had forgotten there was ever such an issue.” From Kentucky: “I believe judicial recall is dead. I believe interest in it has waned enormously, and that it is no longer popular. I believe it is thoroughly discredited. Inasmuch, therefore, as the people have been thinking on the question, and especially as they have begun to lean against it, I hope that it is the opportune time to improve judicial tenure,” and from West Virginia where it is said that criticism of the courts has not yet led to the demand for radical change of judicial recall, but for less drastic remedies.

The report from Missouri seems to summarize the present situation throughout the country. There it is reported that in the legislature of this year no legislation was had, and no attempt was made at legislation, in favor of judicial recall: “ The agitation for this measure is not only subsiding, but a very decided opposition to it has set in. The country is now on the road to have normal conditions restored and without renewed disturbance, unless the old time reactionaries, pure and simple, become overconfident and invite renewed disturbance."

It would be misleading to characterize the judicial recall movement as safely dead. It is down and out in the sense that a contestant is down and is taking the count. For some time yet there will be constant danger that neglect of the situation may find us suddenly confronted with a revived antagonist. This Association should not withhold any necessary means of safeguarding the situation.

POSSIBILITIES OF REVIVAL. The persistence of this fallacy presents many possibilities of its revival, in one form or another. Within the past year the American Judicature Society has in the course of its work " to promote the efficient administration of justice,” issued a bulletin which treats of proposed reforms in the organization of the courts. It proposes the abolition of the elective system of judges, and then, as a sop to the lingering predilection in favor of judicial recall, it is proposed to add to the present method of retirement of judges through impeachment, not only the right of removal upon charges made and adjudicated by the state legislature and by a judicial council, but also the retirement by a fourth method. By this fourth method it is proposed to syh

mit to the electorate at certain intervals of time the proposition, “shall

(naming the judge) be continued in office?” If the vote is in the affirmative the judge remains in office. If in the negative, then the judge goes out of office and the vacancy is filled by appointment as in the case of original selection. It is argued that this last proposition is not in reality a judicial recall and that it simply preserves the present periodic power of retirement, existing under the elective system, at the same time that it eliminates many of the objectionable features of that system. It is quite probable that sooner or later the American Bar Association will be asked to approve such a proposition. That such a measure should be proposed by any society whose active members comprise well-known lawyers, is significant of the extent to which the judicial recall fallacy has taken hold. It shows that judicial recall is dead only in spots. This proposition bows too much to the enemy. It prescribes a poison in modified regular doses for the purpose of curing those who have become addicted in a dangerous degree to a vicious narcotic. It is a remedial tapering off, a sort of conciliatory concession, under the guise of a remedy, to a vicious appetite which had temporarily seized upon the electorate. Logically, it is impossible; and we trust that the American Bar Association will not be caught in a proposition to remedy the organization of the courts by the disorganization of constitutional government involved in any measure which gives over to the electorate the arbitrary power to retire a judge during the term of office for which he has been elected or appointed.

The National Progressive Constitutional Convention Committee, in New York, has, through its chairman, issued a threat to defeat at the polls any draft of a state constitution which does not conform to the views of that committee; and for this purpose, the manifesto says: “The National Progressive party will enter into battle to mass the electorate of the state, without regard to party, against the acceptance of a partisan or reactionary constitution.” Among the demands embodied in the declaration are the following:

“ There must be no clauses in the new constitution which can be set up as a bar to the initiative, referendum, and recall of officers; direct nominations for public officers by the electors, and legislation in the direction of social and industrial justice.

“ Provisions of the constitution should ordain home rule for cities and villages; the short ballot, a rational method for determining the constitutionality of statutes that will give effect to the wishes of the people at any given time, and a declaration that there shall be no limitation upon the power of the Legislature to pass measures looking toward social and industrial justice.”

The phrase, “a rational method for determining the constitutionality of statutes, etc.,” is plainly a euphemism for the recall of judicial decisions. The judicial recall, therefore, may yet become an issue in the adoption of a new constitution in New York.

BIBLIOGRAPHY. Important discussions, which do not appear in the former bibliographies of the committee, include the following:


“ Some Myths of the Law,” by Walter Clark, Michigan Law

Review, November, 1914.

NEGATIVE. Responsibility of the Lawyer," by John M. Zane, address before

the graduating class of the John Marshall Law School,

Chicago, June 27, 1914. “Vote No (X)' on the Proposal (No. 10) an Amendment to

Article Seven (7) of the Constitution Providing for the Recall of Public Officials; to be submitted at the next General Election,” by Harvey S. Hoshour of Duluth, Minnesota, and Arthur 0. Lee of Madison, Minnesota, being the first prize arguments in two prize contests, (1) for students of the Minnesota law schools, and (2) for students of Minnesota high schools, against the Recall of Judges. These arguments were widely published and distributed in a successful campaign against the adoption of the constitutional amendment for the recall of public officials, including judges, proposed by the Minnesota Legislature of 1913, for adoption at the

general state election in November, 1914. Report of the New York State Bar Association Committee on

the Duty of Courts to Refuse to Execute Statutes in Contravention of the Fundamental Law, presented January 22

and 23, 1915; S. D. 941, 63d Congress, 3d Session. “The Citizen and the Constitution,” by Alton B. Parker, 23 Yale

Law Journal 631, June, 1914.

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