Orange County Judge M. Marc Kelly: Recall effort is an injustice

The recall campaign against Judge M. Marc Kelly damages judicial independence

If Orange County Superior Court Judge M. Marc Kelly erred in interpreting the law when he sentenced a child molester to 10 years in prison in April, or if he exceeded his authority by knowingly imposing a sentence not allowed by law, California's justice system is able to rectify the problem, at the level of either the 4th District Court of Appeal or the state Supreme Court. If he had a history of consistently imposing sentences that diverged wildly from the norm, he could be challenged at reelection time and replaced with another judge.

But Kelly's 15-year record on the bench appears solid. He is currently the subject of a recall campaign because of public outrage at one particular sentence — outrage that was fanned by the Orange County Board of Supervisors, which attempted to score political points or pressure the courts, or both, by demanding his resignation.

Kelly said he believed the minimum 25-year sentence required under Jessica's Law, adopted by voters in 2006, would be unconstitutional in this case. It's a judge's task to make that call, subject to review by higher courts.

The essence of the American justice system is that rulings are made by judges who are shielded from the heat of public emotion and pressure of politics. Accused criminals are not judged by popular tribunal. Convicted criminals are not sentenced by mob decision. And judges are not hounded from office — or rather, they should not be — by politicians from another branch of government who don't like their rulings.

It's one thing to express an opinion about a sentence, quite another to take a public vote calling on a judge to resign because of it. The board's action, and the ensuing recall campaign, make it more likely that judges in Orange County and perhaps around the state will consider the politics and the popularity of their decisions before handing them down. That damages the independence and therefore the reliability of California's judiciary.

There is no perfect way to balance judicial independence and accountability. The federal model, with its Senate vetting and lifetime appointments, has its own pluses and minuses. This state has judicial elections, and any elected official can be recalled. For example, now-retired Orange County Superior Court Judge Nancy Wieben Stock had to weather a recall because some critics didn't like her custody decision in the case of O.J. Simpson's children. But she followed the law, and fortunately the campaign against her fizzled. A similar result in Kelly's case would best serve California.

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