Marion County judge shouldn’t be recalled

Published 4:00 am Monday, October 31, 2005

We don’t know much about Marion County Circuit Court Judge Mary Mertens James, whose opinion declaring Measure 37 unconstitutional had all the subtlety of a shot of Tabasco sauce. We do know one thing, though: She shouldn’t be recalled. The state Constitution Party, which recently filed a recall petition, ought to put its clipboards away and work, instead, on fielding a good candidate to run against her when her term expires.

We don’t blame Measure 37’s supporters for their frustration. City councils, county commissions and other government entities across the state have tried to chip away at the property-rights measure even though more than 60 percent of voters supported it last November, and even though its predecessor, 2000’s Measure 7, passed at the polls, too. It’s dismaying that so many people saw fit to support such flawed policy, but the fact is they did. And despite this unambiguous popular support, full implementation has yet to occur. The state Supreme Court declared Measure 7 unconstitutional, and now Judge James has taken a machete to Measure 37.

The measure’s supporters are, therefore, angry. And some of them, unable to control Measure 37’s fate in the courts, have opted to go after the people who hand down rulings they don’t like. (The measure’s sponsors, to their credit, have chosen not to participate.) We don’t know whether Judge James’ decision is evidence of judicial activism, as some of her critics believe, but the people pursuing her recall ought to imagine a different scenario before proceeding any further. Suppose that James had declared Measure 37 constitutionally unassailable, and suppose that the measure’s opponents, citing judicial activism, had responded by filing a recall petition. We’d be surprised in that case if the measure’s supporters didn’t rush to James’ defense and accuse her detractors of sour grapes. And they’d be right. Nevertheless, they want to ask voters to repossess her robe.

Among those who support James’ recall is, surprisingly, a member of the state Legislature, Jeff Kropf. Said the Sublimity Republican this week: “Clearly, if people speak loudly on an issue – especially by the strength of the vote – the court should take that into consideration.” That’s an interesting take on the proper role of judges. We’d always been under the impression that judges were supposed to be arbiters of the law, not pollsters. We’d expect a lawmaker, of all people, to share that view.

Besides, if ignoring clearly expressed popular sentiment is cause for recall, Kropf himself should start looking over his shoulder. He co-sponsored a bill this past session – HB 2759 – that would create a pilot program allowing people to hunt cougars with dogs. The state’s ban on dog-assisted hunting is the result of a 1994 ballot measure supported by 51 percent of voters. Two years later, 57 percent of voters opposed a measure that would have overturned the ban. We happen to agree with Kropf that the ban is a lousy idea, especially given the subsequent explosion in the cougar population. Nevertheless, voters supported it twice, just as they did with Measures 7 and 37. Yet he was perfectly willing to disregard their wishes. Should we expect Rep. Kropf to demand his own recall?