March 04, 2021

TORT TRIAL AND INSURANCE PRACTICE: The Imperative to Fight for the American Judiciary

Peter Bennett

One of the cornerstones of the American form of government is a properly funded, independent judiciary. When the Constitution of the United States was adopted, America’s founding fathers established the judiciary as a coequal branch of government, along with the legislative and executive branches. The judiciary serves a unique role as the ultimate arbiter that keeps our nation true to the rule of law. But this role is threatened when the courts lack the funding to promptly and fairly resolve disputes—and, unfortunately, that funding is dependent on the acts of the other two branches.

The judiciary has no natural constituency that has a clear incentive to ensure it is adequately funded. There is no group, other than lawyers, that regularly interacts with the courts. To the extent that individuals and businesses interact with the judiciary, it is typically on an infrequent basis. Most citizens will never have to appear before a judge for anything more important than a speeding ticket. As a result, most Americans have a limited understanding of what the courts do on a daily basis or that adequate court funding is an issue.

Judicial independence and the court funding crisis. It is crucial that the judiciary function independently of the executive and legislative branches. Our adversarial system of settling disputes creates winners and losers. When the judiciary resolves a dispute between citizens or businesses, at least one of the parties is dissatisfied with the outcome. Therefore, judges need to be insulated from political, social, security, and financial pressures that could compromise their impartiality or that could create the impression of partiality.

Whether appointed or subject to the democratic process for election or retention, American judges can be exposed to political forces that attempt to undermine the judiciary’s independence. The judiciary depends on the other coequal branches of government to carry out their constitutional responsibility to provide appropriate funding for the courts to operate. Unfortunately, withholding or reducing court funding is sometimes used as a tool to punish a court system for decisions that the executive or legislative branch does not like.

The underfunding of courts negatively affects the economy, communities, and the entire criminal justice framework. We all suffer, whether we realize it or not. Lawyers must be the leaders in addressing the court funding crisis.

Advancing the rule of law. As the voice of our profession, the American Bar Association has filled a key role in addressing the court funding problem, as well as the larger issue of judicial independence. Goal IV of the ABA is titled “Advance the Rule of Law.” Its stated objectives include preserving the independence of the legal profession and the judiciary. We have little reason to exist as an association of lawyers and judges unless we dedicate ourselves to the rule of law and to upholding the principle that our courts be free to apply it fairly and impartially.

ABA Committees on Judicial Independence. In 1997 the ABA Board of Governors created the Special Committee on Judicial Independence. The special committee assisted courts, administrative judiciaries, and state, local, and territorial bar associations in considering and responding to threats to judicial independence. It also encouraged public awareness and appreciation of the importance of judicial independence and merit selection to the American judicial system and to the rule of law; made recommendations on ways to improve and enhance the institutional independence and efficiency of state, territorial, and local judiciaries; and encouraged appropriate accountability to enhance judicial independence and the efficient administration of justice.

In 1999 the ABA Board of Governors increased the ABA’s commitment to our courts by creating the Standing Committee on Judicial Independence. This committee continued through August 2014 when, combined with the Standing Committee on Federal Judicial Improvements and the Task Force on Preservation of the Justice System, it became the Standing Committee on the American Judicial System.

The least understood branch. One of the more visible projects of the ABA Standing Committee on Judicial Independence has been the Least Understood Branch program, which it created in partnership with the Judicial Division. The Least Understood Branch is a public education program that equips lawyers and judges to reach out to their communities and educate the electorate about the critical importance of fair and impartial courts.

In recent years, the committee focused its Least Understood Branch efforts on specific states where the need for education seems to have been greatest. For example, the committee provided training and messaging resources to the Iowa Bar during the aftermath of the Iowa Supreme Court’s ruling on same-sex marriage that led to out-of-state groups opposing the retention of justices who joined the unanimous decision.

Policy on judicial disqualification. Over the past four years, the committee helped develop ABA policy on judicial disqualification. The committee’s leadership led to a resolution that called for clearly articulated procedures for judicial disqualification determinations and for a method of appeal or independent review when a motion to disqualify was denied. In addition, the resolution called for disclosure requirements for lawyers and litigants in states that conduct any form of judicial elections where money or services might be donated in support of or in opposition to a judicial candidate.

The committee was prescient in identifying this issue and bringing the voice of the ABA to bear on it. In the middle of the committee’s work came the case of Caperton v. A.T. Massey Coal Co., 679 S.E.2d 223 (W. Va. 2008), rev’d, 556 U.S. 868 (2009). It involved substantial financial campaign support contributed to Justice Brent Benjamin of the Supreme Court of West Virginia by the CEO of a corporation whose case was before the justice. Justice Benjamin refused to step aside from hearing this appeal when his impartiality was questioned. The U.S. Supreme Court held that this level of support created a “serious, objective risk of actual bias” that was constitutionally intolerable on due process grounds.

The clear procedures recommended in the resolution on procedures for judicial disqualification are designed to help restore public confidence in our courts, and they carry with them the unanimous imprimatur of the Conference of Chief Justices. The committee has worked with a number of state courts to help them improve their procedures governing disqualification.

Funding for more than prompt and impartial justice. Fair court funding is important to achieve more than prompt and impartial justice. The committee has taken on the task of making courthouses safer for all who access them. Inconsistent security efforts between courthouses leave courts exposed to the potential for violence. Since 2005 more than 400 court-targeted acts of violence have occurred. The committee’s newest program, dubbed SecureCourts, is a call to the profession to make access to justice safer and also to blunt the impact and loss of life that may follow when security breaches occur.

A call to action. As lawyers, we have an obligation to fight for the courts. Our system of justice is the envy of the world, but maintaining it requires that we have a fully funded, fair, impartial, and independent judiciary. Public trust and confidence in our courts and the judges who lead them will only be preserved as long as we are actively committed to providing full and fair funding for the system that ensures justice for all.

ABA Tort Trial and Insurance Practice Section

This article is an abridged and edited version of one that originally appeared on page 61 of The Brief, Winter 2015 (44:2).

For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.


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Peter Bennett

Peter Bennett is president of The Bennett Law Firm in Portland, Maine, where his practice focuses on labor relations and employment law representing management.