It has been a while since we checked in on Poland’s judicial reforms, most of which have been openly hostile to the country’s judiciary. One of the latest reforms would lower the retirement age of judges from 70 to 65, effectively removing about two dozen experienced judges from the bench, and correspondingly allowing the government to appoint new judges in their place. It’s court packing without the packing.
The European Commission sued Poland over the legislation in the European Court of Justice (ECJ), on the grounds that it was part of a larger set of “systemic threats to the rule of law” which could trigger the loss of Poland’s voting rights in the European Union. In October, the ECJ suspended the legislation pending a permanent resolution. It upheld the interim injunction on Monday.
In response, Polish President Andrej Duda signed new legislation revoking the early retirement bill. Is this a sign that the Polish government is moderating its stance on judicial reform under EU pressure? Stay tuned.
In its latest move against the Poland’s increasingly restrictive judiciary laws, the European Union has asked its top court, the European Court of Justice, to suspend a recent Polish law that would force the retirement of more than one-third of its top judges.
The body said in a statement that “the Polish law on the Supreme Court is incompatible with EU law as it undermines the principle of judicial independence.”
Poland’s law on the retirement of judges at the Supreme Court put 27 of 72 judges at risk of being forced to retire, the Commission said, with no clear criteria on who can stay.
The Commission gave Warsaw a first warning in July, when the law took effect, and followed it up with another step in August before taking Monday’s decision.
Previous coverage here, here, here, here, and here.
In the wake of a new Polish law lowering the mandatory retirement age of judges from 70 to 65, the European Union has advanced to the next stage of its infringement procedure against the PiS (Law and Justice Party) led government.
The new Polish law on the Supreme Court lowers the retirement age of Supreme Court judges from 70 to 65, which puts 27 out of 72 sitting Supreme Court judges at risk of being forced to retire. This measure also applies to the First President of the Supreme Court, whose 6-year mandate, set out in the Polish Constitution, would be prematurely terminated.
According to the law, current judges affected by the lowered retirement age are given the possibility to request a prolongation of their mandate by the President of the Republic, which can be granted for a period of three years, and renewed once. There are no criteria established for the President’s decision and no judicial review is available if the request is rejected.
The Commission’s position is that the Polish law on the Supreme Court is incompatible with EU law as it undermines the principle of judicial independence, including the irremovability of judges, and thereby Poland fails to fulfil its obligations under Article 19(1) of the Treaty on European Union read in connection with Article 47 of the Charter of Fundamental Rights of the European Union.
The Polish government has been given one month to comply with its obligations. I wish I could be optimistic that it will.
His letter to the President is here (h/t SCOTUSBlog).
Last week I noted the lawsuit filed against Florida Governor Rick Scott by Jacksonville attorney David Trotti. Scott has moved to fill several seats on the state bench, which opened due to curiously timed judicial retirements. Trotti alleges that the retirements create a vacancy for such a short period that the seats should be filled by popular election.
The trial court ruled in favor of Trotti, which would have prevented the Governor from filling the seat. But the Scott Administration appealed, which automatically stayed the decision and once again enabled the Governor to appoint a new judge. Trotti convinced the trial court to vacate the stay, but Scott then convinced the appellate court to reinstate the stay.
Trotti has now appealed to the Florida Supreme Court, arguing that the stay (and a Scott appointment) will eliminate the rights of citizens to vote for the judicial candidate of their choice. In his petition, he noted that several judges have times their retirements to create just enough of vacancy to permit the Governor to claim the right to fill the seat through appointment. As I noted in my earlier post, I am no fan of judicial elections, but this certainly smells like people are gaming the system.
A curiously timed judicial retirement in Florida has spurred a lawsuit and a debate over whether the vacancy should be filled by the governor or the voters.
Robert Foster, a trial judge on the state’s Fourth Judicial Circuit, was expected to retire on January 7, 2019–the last day of his term. (Foster will have reached the state’s mandatory retirement age.) In April, however, Foster informed Governor Rick Scott that he will take retirement one week earlier, on December 31.
That one week makes a big difference. Normally when a Florida judge leaves on the final day of the term, his seat is filled by popular election. But the governor interpreted the December 31 retirement to be an “early” retirement, which would allow him to fill the seat by gubernatorial appointment. In early May, the Fourth Judicial Circuit’s Judicial Nominating Commission announced the vacancy and invited applications.
Continue reading “Florida’s fight over filling a judicial vacancy”
Jonathan Remy Nash (Emory) has posted his new article, Judicial Laterals, on SSRN. It is a short and interesting empirical study of “lateral” moves by sitting judges, either from a state court to the federal bench, or vice versa.
Nash’s data set confirms many intuitions about such lateral moves. Unsurprisingly, a move from state court to federal court is overwhelmingly more common than a move from federal to state. Judges do occasionally leave the federal bench to join a state court, but almost always to “step up” within the court hierarchy (by moving, for example, from a federal district court to a state supreme court). Nash also examined connections between lateral decisions and factors such as the professionalism of the state court, the length of the judicial term on a state court, and the expected judicial salary.
The study was understandably limited to moves from one judicial position to another. But at some point it would also be very interesting to explore judges who leave the bench entirely for other legal (or law-related) jobs. We are accustomed to thinking about a judgeship as a capstone of a legal career, but there is no shortage of judges who leave before their terms are up to seek a different opportunity outside the courts. In recent years, for example, both state and federal judges have resigned their seats to take appointed political positions, run for elected office, enter academia, create think tanks, or even join the private sector.
The systemic explanations for these moves might well be complex and varied. State judges might be motivated in part by mandatory retirement ages, looming reelection or retention campaigns, higher salaries, better quality of life, or restlessness to try something new. Federal judges, with lifetime job security, are giving up something more. What motivates the change for them?
Perhaps some day we will be able to dive more deeply into that question. In the meantime, I commend Professor Nash’s piece to the reader.