Bars support the judiciary and separation of powers

Volume 31 Number 2

By

It wasn’t long ago that Florida’s Legislature, governor, and the courts were locked in a legal feud over the fate of Terri Schiavo, the woman at the center of a bitter right-to-die debate. As attacks and challenges to the courts’ authority increased, the Florida Bar became increasingly active in defending the judiciary.

But a lot has changed since then, says current Florida Bar President Hank Coxe.

“We’ve had significant meetings with the leadership of the Legislature and the governor’s office. We’ve had members testify at the Legislature, and we’ve had legislators meeting at the bar with the board of governors,” he says. “Over the last two years, we’ve had the greatest increase in funding ever for new judges and new salaries, all because of this interaction.”

Still, Coxe says, the bar is concerned about infringements on the separation of powers in Florida, whether they’re from legislators or special interest groups. It is a concern shared by bar leaders nationwide.

“It’s one of the most critical issues we have to face in the law today,” says Doreen Dodson, a St. Louis lawyer and chair of the ABA Standing Committee on Judicial Independence. “We’ve become more polarized in our state legislatures and in our Congress on the role of the judiciary.”

That polarization is also evident in the public, where judges and the judiciary are frequently blasted on blogs, criticized in election campaigns, and subjected to citizen ballot initiatives that would strip powers from them or make it easier to remove them from office. And in extreme cases—most recently, in Nevada—judges have been physically harmed.

Like the Florida Bar, associations and individual members throughout the country are responding with efforts to promote judicial independence, both in legislative and public forums, from education to lobbying. That support, Dodson and others say, is critical and must continue to grow.

“We have to step up to the plate,” Dodson says. “If we don’t, our court system as we know it will not survive.”

 

Crossing the line

Rew Goodenow had been a camping companion of Nevada Family Court Judge Chuck Weller. He had also represented the family of the man charged with shooting and wounding Weller, Darren Roy Mack. So Goodenow, now president of the State Bar of Nevada, was saddened upon hearing of Mack’s arrest for, in June, allegedly killing his wife in her home and shooting Weller at his courthouse chambers. Weller has since recovered.

Goodenow’s sadness, however, soon turned to dismay.

“When you heard about all the postings on the Internet afterward about how [Weller] deserved it and had it coming, it was just shocking,” Goodenow says.

One such message, posted a day after the shooting on a blog at www.ancpr.com, the Web site for the Alliance of Non-Custodial Parents’ Rights, expressed regret that Weller was likely to survive and return to the bench. It is believed that the motive for the shooting was Mack’s unhappiness with a child support and visitation decision Weller made.

Such comments, Dodson says, are part of a continuing trend aimed at weakening the judiciary. “There are efforts to promote judge-shopping, to make judges subject to recalls or impeachment, or to make them subject to [state] senate confirmation,” she says. “In almost every state, there’s something like this, whether it’s in the legislatures or at the popular vote level.”

While judges can certainly take criticism of specific decisions, advocating or threatening violence against a judge or attempting to make it easier to limit a judge’s power or remove him or her from office crosses a line—one that is being crossed more often, says Multnomah County (Ore.) Circuit Court Judge Dale Koch, president of the National Council of Juvenile and Family Court Judges. Many believe that juvenile and family court judges are particularly vulnerable to violent attacks because of the nature of the rulings they must make.

Koch says he was “disappointed by the lack of critical response” from political leaders after Weller’s shooting. Further, he says, many state lawmakers are attempting to limit the scope of the judiciary, often for political reasons. In the past year, states such as Kansas, Indiana, and Kentucky saw efforts mounted to curb the judiciary.

 

Recent attempts to limit the judiciary

News from a few states reveals a pattern in which proposals are made that would curb the judiciary in some way, but the proposals are defeated or put on hold, sometimes before reaching the full legislature. For many bars, this is mixed news. They are alarmed that the proposals came up at all, but guardedly pleased that they were not approved, perhaps in part because bar leaders spoke up.

In Kansas, a skirmish between the legislative and judicial branch over school funding led to proposed limits to what judges may decide. The state Senate and House presented resolutions that were prompted by decisions by state courts that ordered $800 million in school funding over three years. The resolutions would have barred any state court from appropriating school funds, and would have barred the courts from closing schools.

Another proposal, one that particularly rankled the 6,500-member Kansas Bar Association, would have changed the process of judicial selection. Currently, a judicial nominating commission selects three candidates, among whom the governor chooses one; the proposal would have required direct election of judges or state Senate approval of the nominees. Many believe the proposal was prompted by dissatisfaction with a state Supreme Court ruling that found that a portion of the state’s death penalty was unconstitutional (see “Kansas Senate attempts control over judicial selection process,” September-October 2005, page 5).

“The KBA opposed all of the proposals changing the method of judicial selection because it has always supported the Missouri Plan [of nonpartisan judicial selection], and second, because the proposals to limit powers of the court were either ludicrous or unnecessary,” says Jim Clark, the bar’s legislative counsel.

While no legislative action was taken, at press time, Clark said the November gubernatorial election could influence whether or not similar legislation is offered in the future.

In Indiana, where the judicial selection process is similar to that in Kansas, several legislators proposed a change that would have made state Supreme Court and Court of Appeals judges subject to a retention vote in the state Senate. If 60 percent of the Senate voted against retention, the judge would be removed. For those judges not removed in this manner, the results of the Senate vote would have been printed directly on the ballot the general public uses to vote for or against retention.

The Indiana State Bar Association joined forces with the Indianapolis Bar Association and other bars statewide to speak out against the proposal. One of the bars’ concerns was that the new process would make judges beholden to the Senate and would encourage retention decisions based on politics (see “Senate control of judicial retention fails in Indiana,” July-August 2005, page 4).

“We argued staunchly against the proposal and it never made it out [to the full Legislature] for a vote,” says Tom Pyrz, executive director of the ISBA. “But it may come back.”

In Kentucky, a state Senate bill proposed a state constitutional amendment that would have prohibited the courts from ordering that legislators raise taxes, or from banning the public display of the Ten Commandments provided it was in a historical context. The proposal was unpopular with the Louisville Bar Association, the state’s largest voluntary bar, according to Jack Ballantine, co-chair of the bar’s Committee on Judicial Integrity and Independence. It was also unpopular with many legislators—it was defeated before it reached voters.

 

Ballot initiatives closely watched

When faced with thorny political issues and ballot initiatives that can affect the judiciary, and by extension, the bar association, a prime question then becomes: What can bars do?

Lobbying lawmakers and taking positions on ballot measures can be accomplished by voluntary state, local, and specialty bars. But when it comes to unified bar associations that fall under state jurisdiction, the issue becomes much more gray because of Keller v. State Bar of California. Under Keller, bars are prohibited from using member fees for “political or ideological” activities not related to the regulation or improvement of the profession.

“The Keller restrictions are always a part of the discussions,” says the Florida Bar’s Coxe, but when it comes to issues such as judicial salaries and staffing, there is little doubt for him that such discussions are important to supporting the rule of law in Florida.

“It’s a very delicate balance on whether or not the bar should jump in” on an issue, says Gerry Gaydos, a member of the Oregon bar’s board of directors and chair of its Public Affairs Committee. The bar considered Keller carefully before taking a position against earlier and recent ballot initiatives in Oregon that would affect the judiciary (see “State elections prompt concerns for judicial independence,” page 16). “We’ve made a concerted effort over the last few years to educate legislators about the entire criminal justice system,” Gaydos notes.

In Montana, a unified bar state, the bar association is not taking a position as a group regarding a ballot initiative that would make any judge in the state subject to a recall election based on public petition signatures. Instead, the bar is participating with the League of Women Voters on educational forums throughout the state to tell voters what the recall initiative means, without offering opinions on whether it should be approved. But in his last letter to members in the bar’s journal, immediate past President Bernard McCarthy urged bar members, as individuals, to discourage the public from voting for the ballot initiative.

McCarthy has observed that many voters in his state don’t always thoroughly read such proposals before voting yes or no. “So if we don’t take the initiative and educate people, it’s a crapshoot,” he says. “We shouldn’t let it slip by.”

 

Relationships bring results

Whether from voluntary or unified bars, most bar leaders agree that regular dialogue with legislators and government executives of all parties is key to maintaining and improving judicial independence.

“It’s never too early to start building constructive, positive relations with your legislature, and maintaining strong contact with the judiciary,” says Dwight Dinkla, executive director of the voluntary Iowa State Bar Association. The bar recently had one of its most successful legislative lobbying years, he adds (see “Success on the funding front,” page 11).

Judge Koch and others believe the bar can play a vital role in communicating the needs of the judiciary and the important role of the judicial branch to lawmakers and the public. “It is absolutely essential that bar associations get involved in these judicial independence issues,” Koch says.

Many bar associations have launched committees or developed policies aimed at judicial independence matters, charged with tasks such as responding publicly to attacks on the judiciary or leading education programs about the role of the judiciary. In Nevada, Goodenow appointed a leader to start a committee that will look at how the bar responds to “unwarranted attacks on the judiciary.”

Earlier this year, the Maryland State Bar Association issued press releases and made public appearances denouncing a state legislator’s call for the impeachment of a Circuit Court judge who overturned a ruling banning same-sex marriage. The bar has an Immediate Response Committee of two bar members in each county who can quickly address such issues, says Paul Carlin, the bar’s executive director.

“We reacted right away to tell people that judges apply the law the best way they can,” Carlin says. “[The impeachment call] was the most flagrant violation of the principle of separation of powers. Our statement was much appreciated by the judge.”

In Kansas, the KBA has allied with a group composed of lawyer organizations, the League of Women Voters, and the local Appleseed Foundation, along with Justice at Stake, a group of national organizations that includes the ABA, Clark says. Together, they have published brochures, issued talking points for lectures, and urged lawyers and judges to speak on judicial independence issues whenever they can.

The ABA’s Least Understood Branch initiative, a joint project of the ABA Standing Committee on Judicial Independence and the ABA Judicial Division, offers a wealth of resources to help educate the public, including students, and respond to misguided criticism (see “Least Understood Branch: ABA project aims to inform public about the judicial system,” page 14).

 

Education a top priority

Dodson says the next few years will be critical in the judicial independence arena, which is why her committee is dedicated to working with state and local bars on initiatives to support the judiciary. Educating legislators and the public with open dialogue about the importance of the judiciary and the need for separation of powers remains the top priority.

Education is also a leading priority for the Louisville bar’s Committee on Judicial Integrity and Independence. The committee has developed “The High Ground,” a publication to help educate political candidates, nonprofit organizations, and high schools. A similar program has been designed for the city’s middle schools to talk mainly about the Bill of Rights.

While Florida’s Coxe says the Schiavo case was an unfortunate part of history for the state’s legal community, he believes the dialogue that followed Schiavo’s death was the most positive thing to emerge.

Rew Goodenow is hoping for similar results in Nevada, where talk of a ballot initiative similar to the one in Montana has been brewing.

“I think if the bar association can heed [the Weller shooting] and try to promote an understanding of the judicial process, the public will be less likely to resort to violence,” he says. “My hope is the public will become better educated in the important role of the courts in our democratic process.” BL

 

 

SUCCESS ON THE FUNDING FRONT

 

An independent judiciary, says Steve Collins, president of the Knoxville (Tenn.) Bar Association, should also be an adequately funded judiciary. From judges’ salaries to courthouse security, the Knoxville bar, like many others, has worked successfully to make sure that happens.

“Good salaries are vital in maintaining an independent judiciary,” Collins says. “We’ve worked hard on this in Tennessee.”

The 1,400-member Knoxville bar joined forces with the Tennessee Bar Association and bars in Nashville, Memphis, and Chattanooga on a comprehensive study and lobbying effort to gain raises for the state’s judges earlier this year. The research found that Tennessee judges were among the lowest paid in the region.

“We learned that our judges would be making half as much as they would in private practice,” Collins says. “We told legislators that the only qualified people who could afford to be judges were those who were independently wealthy.”

Despite some resistance from a few legislators about “ ‘activist judges’ feathering their nests,” Collins says, the judicial pay raises were approved.

An unusual judicial pay structure in Texas led to some trial judges in the state having higher salaries than the state’s Supreme Court judges. After some discussion with the judges last year, the Dallas Bar Association launched an intensive lobbying effort, as did the Houston Bar Association.

“A lot of lawyers helped take the lead and educated the Legislature about the judiciary,” says Tim Mountz, who was president of the Dallas bar during the lobbying effort. “Once the facts came out, I think most people understood the need.”

As a result, justices for the state Supreme Court, the Criminal Court of Appeals, and Trial Courts saw their salaries raised by nearly 30 percent—their first raise in seven years.

Mountz says an important part of the success lies with the bar’s good relationship with the judiciary. “Our judges are very active in our CLE programs and our committees,” he explains. “I think that helps.”

It was another success for the Dallas bar, having lobbied in the 1990s for funding that led to a 10-story addition to judicial facilities in Dallas that opened this year. “Everyone is proud of that effort because it was done without having to raise more taxes,” Mountz says.

Having good relationships with legislators and the executive branch is also important, as the Iowa State Bar Association knows. Those relationships yielded positive results earlier this year, with bar association-backed bills that raised judges’ salaries and improved court administration winning approval from the Legislature and the governor.

“We have a very active legislative program,” notes Dwight Dinkla, the bar’s executive director. “We monitor about 400 bills each legislative session, and we probably have eight or 10 affinity bills that we sponsor each year.”

While there are plenty of success stories for bars in their efforts to help fund the judiciary, there are challenges as well.

In Oregon, judges have not had a raise in several years, which could lead to nearly half of the state’s local/county judges retiring by the end of 2007, says Judy A.C. Edwards, executive director of the Multnomah Bar Association. The reason: As senior judges, they get an automatic cost of living increase that they do not get as an active judge.

“In our view, this is unreasonable of the Legislature, which sets the Oregon judicial branch’s budget,” Edwards says. “It seems to be a way for one branch of government to control another branch.”

The Maryland State Bar Association established a special Courthouse Construction Committee last year to seek funding improvements aimed at repairing many of the state’s aging court facilities, particularly in Baltimore (see “Seeing is believing,” page 12). In some courthouses, the committee has noted serious problems that could threaten the security of judges and all others in the facility. To date, little legislative action has been taken, according to the bar’s communications director, Janet Stidman Eveleth.

—R.J.D.

 

SEEING IS BELIEVING: COURTHOUSE TOUR REVEALS THREAT TO JUDGES, LAWYERS, AND PUBLIC

 

Even if the separation of powers is maintained, and a judge has an adequate salary, what if that judge must work in cramped, hot, or unhealthy conditions? Or park mere feet from where prisoners are loaded and unloaded?

The Maryland State Bar Association believes adequate funding for courthouse facilities—including security—is essential to the administration of justice. When the MSBA formed its Courthouse Construction Committee last year, the bar’s director of communications, Janet Stidman Eveleth, wanted to see for herself the condition of two Baltimore courthouses. She reported her findings in the December 2005 issue of the Maryland Bar Bulletin, in an article called “Seeing is believing.” Here is that article, reprinted with the bar’s permission.

 

On November 3, [2005], the Honorable Marcella Holland and Frank Norris, a building maintenance supervisor for the city courthouses, personally took me and MSBA Legislative Director Richard Montgomery on a “behind the scenes” and “not so behind the scenes” tour of the Mitchell Courthouse and Courthouse East. We started in Courthouse East. After an incredibly long wait for the 60-year-old elevators—three out of four were actually working that day—several arrived, jammed to capacity. We finally gave up and took the official judge’s elevator up to the fourth floor.

There, we saw the room where the roof fell in, literally, on an employee two years ago. There are still holes in the ceiling, and plywood covers part of the floor, which is less than secure when one walks on it. There are holes in the plaster, peeling walls, and overall it is still a mess and not in use.

Next, we visited cramped, very hot offices, including a former vault that now functions as a small, claustrophobic office. “The public comes into these areas to conduct business, too,” Holland stated.

Proceeding to the top floor, we saw where the leaks in the beautiful ceiling still occur and the paint on the walls in the magnificent hallways still regularly peels from water leaks. Many of the files in the storage areas have been badly damaged by water over the years, and although all of the asbestos has supposedly been removed, the employees wonder. Don’t even think about getting a drink of water—the water fountains have been shut off because there is lead in the water, and bottled water must be brought into the building for employees.

On the day we visited, it was pleasantly warm outside and unbearably so in most rooms. Holland showed us several very small, tight courtrooms where the defendant is literally sitting right next to (almost on top of) the jury box. Murder trials are actually conducted in these courtrooms. In the courtroom clerk’s office, individuals actually sit two people to one desk.

Next, we proceeded to the basement, where the judicial garage is housed. In my opinion, this poses the most dangerous, insecure area of all for the judges, who park their cars in the underground garage where prisoners are being unloaded and loaded into prison vans, literally several feet away. This is a potentially explosive situation and quite dangerous, with only one security guard to maintain control over the entire area. Plus, the prisoners are able to match judges with cars and license plate numbers—not a comforting scenario.

Then we crossed the street and went over to the Mitchell Courthouse, where we saw more of the same. This courthouse is known for its “sick courtroom,” which is assumed to be responsible for several judges suffering upper respiratory ailments. We saw more cramped, very warm office spaces and a very tight juror waiting room. Holland also showed us the poor design of various suites and how she is coping in an attempt to accommodate them to meet the needs of new judges’ chambers. There is inadequate space in both buildings.

In our travels, we saw very little security and even fewer deputies. However, we did see many prisoners, accompanied by correctional officers, walking down the hallways along with members of the public, jurors, attorneys, and judges. Surprisingly, one of the main lockups is opposite the public elevators, meaning that prisoners are escorted in right past public waiting areas. Street pedestrian traffic must be stopped for this parade of prisoners, too. And the antiquated security in both courthouses consists, at best, of a metal detector at each courthouse entrance in both buildings manned by deputies. Modern security equipment, like X-ray machines for packages, is in limited use at only one entrance.

As state leaders consider solutions to the Baltimore city courthouse crisis, perhaps they will be inspired by a “behind the scenes” tour? BL

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