The Interdependent Third Branch
Tracking court organization, administration, structure, and strategy
Judge Paul Moore, who is alleged to have doctored his state judicial evaluations, resigned yesterday. The resignation is effective immediately.
No word yet on what will become of the formal complaint against Judge Moore, which was last month by the state’s Supreme Court Committee on Judicial Conduct.
Republicans in North Carolina and Pennsylvania have been rightly criticized for attempting to politicize their state courts through ill-advised, partisan legislation. But the Democrats are hardly saints in this area. With today’s judicial election in Wisconsin, several media outlets have pointed out the rampant politicization of the entire election process, which includes endorsements of the “more liberal” supreme court candidate by Joe Biden and Eric Holder. And the Daily Beast has a piece entitled National Democrats Want to Make Judicial Elections the Next Crest in the Blue Wave, which quotes Faiz Shankar, national political director for the ACLU:
“Increasingly, I think, us along with a lot of progressive actors have really felt that elections pose one of the most powerful ways to change policy…. In a large race…there are so many issues at play and it’s unlikely that you could just make criminal justice the sole major issue at play. Whereas in some of these smaller races, and ones that have less turnout, you can really make it a threshold question.”
Ugh.
Back in 2011, I studied the Wisconsin Supreme Court election, and concluded in a subsequent article that even in that ugly, politicized race, voters showed that they were mostly concerned about a candidate’s capacity for neutrality and procedural fairness, not partisan ends. I hope that Wisconsin judicial voters continue to rise above the partisan politics that the national parties are flinging their way.
Howstuffworks.com has a detailed and very interesting article on the history of drug courts and the work they do today, with a particular focus on the courts in Buffalo, New York. It’s a good read for those interested in how the court system has adapted to contemporary challenges.
Connecticut Supreme Court Justice Andrew McDonald’s bid for that court’s chief justiceship came to an end yesterday, when the state senate rejected his nomination by a 19-16 vote. One Senator abstained due to personal conflicts.
The nomination seemed troubled from the start. McDonald has been a close political associate of Connecticut Governor Dannel Malloy for years, and that affiliation hurt him during the confirmation process. He drew a 20-20 tie vote in committee, and barely passed through the Connecticut House on a 75-74 vote. In the Senate, his nomination was opposed by every Republican, as well as one Democrat.
Some have been quick to blame the failed nomination on McDonald’s status as an openly gay man, suggesting that the opposition was driven by homophobia. But cooler heads have pointed out that McDonald was not helped by Malloy’s animated approach to the nomination, which evidently included promises to fill the next open seat on the court with a Republican. If anything, McDonald’s nomination was undone by classic politics — that is, authentic disputes over public policy — rather than modern identity politics. Better than his nomination had not come down to politics at all, but the insinuation that he is not chief justice today because of his sexual orientation is offensive to all sensible people.
The latest essay in the ABA series on judicial independence comes from Pennsylvania attorney Michael Reed, who discusses efforts to remove or isolate judges for political reasons. His short essay ranges from the Court-packing scheme of the 1930s to the current attempt to impeach justices in Pennsylvania.
Legislative efforts to impeach four Democratic Justices of the Pennsylvania Supreme Court have been roundly criticized by a wide range of observers. This week, Chief Justice Thomas Saylor (a Republican) and state Attorney General Josh Shapiro (a Democrat) added their voices to the chorus.
Shapiro, a Democrat, said impeachment is “a serious and rarely used tool that is reserved for misbehavior in office, rather than opposition to a justice’s legal opinion.”
He went on to point out that the courts have handed down opinions during his time as attorney general that he opposed but he trusts that they were rendered by the courts “on integrity and based on the law.”
Shapiro said, “The independence of the judiciary is at stake and I would urge clear-thinking members of both parties in the state House to reject this effort.”
Yes.
Still working to get his nominee Andrew MacDonald confirmed as the state’s chief justice, Connecticut Governor Dannel Malloy has “signaled a willingness” to fill MacDonald’s Associate Justice seat with former Republican Senator Andrew Roraback. Roraback is currently a trial judge.
The state senate seems unconvinced:
Senate Republican leader Len Fasano of North Haven said Thursday the confirmation of McDonald, who would be the first openly gay chief justice, will be made independently of Roraback’s chances for professional advancement.
“I believe the governor has not made Roraback a nominee,” Fasano said. “The issue is not whether or not he does. The issue is whether or not Justice McDonald should be chief justice.”
Minnesota’s courts recently completed a successful pilot program to allow broadcasts of sentencing and related post-conviction hearings in criminal matters. The Minnesota Supreme Court has also shown strong support for opening its courtrooms to broadcasts in the public interest.
Some members of the state legislature, however, remain unconvinced. Yesterday, the House Public Safety Committee advanced a bill that would severely restrict the broadcast of sentencing hearings, unless everyone involved agrees in advance. The bill also would prohibit the use of state funds for audio or video coverage of criminal proceedings.
Sponsors of the bill argue that witnesses and victims may be reluctant to testify if cameras are running. That sentiment is understandable, but the bill itself is sorely misguided. Proceedings in an open courtroom reflect a careful balance between the rights and sensitivities of victims and witnesses, those of the accused or convicted, and those of the general public. Modern broadcasting tools do not upset this balance; they merely extend its reach outside the courthouse. Indeed, the current practice already prohibits broadcasts of victim statements, witness testimony, or the jury, while still permitting the public to witness the administration of justice.
Attorney Mark Anfinson, a proponent of courtroom broadcasts, nicely summarized the real benefits of the existing system: “What it does is it provides a reassurance, a catharsis, a demonstration of how the justice system works. And that has enormous value to the people whose court system it is, after all.”
Hear, hear. Hopefully the legislature will ultimately reject the bill and allow the state court system to continue serving the public interest by broadcasting certain hearings through both audio and video channels.
A recently retired Iowa trial judge has admitted that “a couple hundred” of his orders and opinions were ghost-written by the prevailing attorneys. Many of Judge Edward Jacobson’s requests for draft rulings were privately communicated by email.
Trial judges at all levels frequently deal with workload crunch by asking both parties to draft proposed findings and fact and conclusions of law. This is a sensible allocation of labor, since the parties and their attorneys are the most familiar with the underlying facts, and drafting orders is time-intensive. It is commonly understood among litigators that a well-drafted set of proposed findings can provide the bulk of a court’s subsequent order.
But judicial requests for proposed findings should be made on the record, in open court. Ex parte communications of the kind Judge Jacobson apparently engaged in suggest a breach of judicial ethics, or at minimum remarkable irresponsibility.
The state court administrator is investigating the matter, and has ordered that the judge’s emails be preserved for at least seven months.
The controversial nomination of Andrew McDonald to the Chief Justice of Connecticut barely passed the state House of Representatives on Monday, by a 75-74 voted. Several Democrats joined Republican opposition to make the vote extremely close.
McDonald had previously received an “unfavorable” report when his nomination led to a 20-20 committee vote. In the leadup to the House debate, outside groups accused Republicans of opposing McDonald because of his sexual orientation. Republicans again fiercely denied that charge in the House. And indeed, most of the debate centered on McDonald’s decision to join a slim 4-3 court majority which struck down the Connecticut death penalty. That decision spared the lives of two men on death row who had been convicted of killing the wife and daughters of state Rep. William Petit. Petit firmly fought against McDonald’s nomination.
The nomination now moves to the state senate, where Republicans hold a slim effective majority.
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