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Saturday, October 07, 2006

Courts - Running for state court judge in Montana, South Dakota, or Colorado

Law columnist Andrew Cohen of the Washington Post writes today:

Election season this year means open season on judges around the country. In Montana, riled-up citizens tried to get onto the ballot a measure that would allow state court judges to be recalled from office at any time for any reason. In South Dakota, an initiative is set to be voted upon in November that would allow citizens to sue and otherwise punish judges for unpopular decisions. And in Colorado, a conservative group is fighting to impose sweeping term limits upon all of the state's appellate court judges.

Let's take the last one first. Colorado's Amendment 40 would remove from office at the same time five of the state's current Supreme Court justices and seven of its current 19 intermediate appellate court judges. The state's judiciary thus would lose on one day a vast reservoir of institutional knowledge and experience -- not to mention by definition the best judges that Colorado has to offer. Why? Because proponents of the initiative, including John Andrews, the leader of the movement, believe that "there's a danger of public officials curdling like old milk if left around too long." * * *

Amendment 40 is such a bad idea -- purporting to solve a problem that does not exist by offering a plan that would make things worse -- that it has driven the state's major political figures of past and present, both Democrat and Republican, to come out against it. The current governor, Bill Owens, a Republican who was once the darling of the national party, has teamed with Roy Romer, his fabled Democrat successor, to come out against Amendment 40. So too has the Republican Attorney General. But it says something about the current political climate that an idea as senseless as this one would have made it even this far.

Speaking of senseless, welcome to South Dakota, where supporters of Amendment E hope a new day will soon dawn where citizens will be able to turn the table upon judges and punish jurists over unpopular decisions. Amendment E would create a "grand jury" of citizens, rotating regularly, that would meet to determine whether a complaint against a judge warranted taking away from that judge long-held "immunity" from lawsuits (right now, and for obvious reasons, you can't sue a judge for failing to rule your way). Amendment E, as in Error, means that a group of citizens who don't like a judge's decision -- remember, judges when interpreting the Bill of Rights are the only checks against the tyranny of the majority -- can take their revenge.

Under Amendment E, judges could lose part of their salary or retirement pay depending upon how much trouble they get into with that runaway grand jury the initiative would create. There is nothing subtle about it Amendment E: vehemently anti-judiciary forces want to diminish the authority of the courts and to destroy the independence of the judiciary. And the worst part? They seem to be winning, if recent polls in South Dakota are accurate. Just imagine what the passage of Amendment E would mean to the practice of law, and the legal system itself, in South Dakota. * * *

Fortunately, at least, the citizens of Montana won't have the opportunity, for now anyway, to vote this November on another ominous anti-judiciary measure. CI-98 was designed to allow Montanans to recall state court judges at any time for any reason. All it would have required was a "justification statement" that set forth "any reason acknowledging electoral dissatisfaction with a justice or judge notwithstanding good faith attempts to perform the duties of the office." But CI-98 now is in legal trouble before Montana voters get to see it; turns out that there may have been fraud in the collection of the signatures needed to get the measure, and a few others, on the ballot in the first place. * * *

It is tough enough to be a judge these days, especially a state-court judge. There is perhaps more outward political pressure upon judges than there has ever been before at a time when they are less insulated, and thus more prone to political attack than ever before. Nationally, the false charge of "judicial activism" has made local judges the target of special-interest political groups even when those judges are simply following established law -- simply following the precedents that have been given to them by the higher courts, including the not-exactly-liberal United States Supreme Court.

[More, from another venue] "Fair and Independent Courts: A Conference on the State of the Judiciary" is the name of a 2-day conference held late last month by "Georgetown University Law Center, which welcomed retired Justice Sandra Day O'Connor, six sitting Supreme Court justices, and hundreds of other nationally recognized leaders." More:
O'Connor and Justice Stephen Breyer chaired the conference, "Fair and Independent Courts: A Conference on the State of the Judiciary." Georgetown Law and the American Law Institute served as its co-sponsors. Organizers convened the conference to promote discussion about the preservation of federal and state courts' tradition of independence — seen in partisan confirmation battles, calls for impeachment or recall following unpopular decisions, and public opinion polls revealing resentment of "judicial activism" — and to develop specific recommendations to strengthen judicial autonomy and increase public confidence in the judiciary.

"Directing anger toward judges has had a long tradition in our nation, I'm sorry to say," O'Connor said during remarks at the start of the conference on Thursday. "While scorn for some judges is not altogether new, I do think that the breadth of the unhappiness being currently expressed, not only by public officials but in public opinion polls in the nation, shows that there is a level of unhappiness today that perhaps is greater than in the past and is certainly cause for great concern."

You may view videos of the entire conference via this link.

Posted by Marcia Oddi on October 7, 2006 06:23 PM
Posted to Courts in general