The last several years have seen efforts to make use of the judicial disciplinary process to examine judicial opinions and punish judges for those opinions.
Authorizes Commission on Judicial Disabilities to remove a judge from office for refusal to enforce applicable law, rendering a decision contrary to applicable law, or knowingly disregarding applicable law.
Provides judge found by commission to have engaged in above conduct forfeits pension.
Provides any person may file complaint alleging above with commission.
Somewhere in between I neglected to mention Maryland’s SB 181, an error I am now rectifying. But first, some background.
In 2011 the Maryland legislature adopted HJR 7, which created a Commission to Study Campaign Finance Law. The 17 member commission is made up of mostly legislators (12) and members of the executive branch (State Administrator of Elections & Executive Director of the State Ethics Commission). The Governor opted to use one of his appointments to name a retired judge to the panel.
The commission was tasked with examining numerous issues, including public financing of campaigns for judicial offices and the costs and practical funding sources for such a system (other than via the state’s general fund). The commission submitted an interim report on December 31, 2011 that made no mention of public financing of judicial elections. Its final report is due December 31, 2012.
Enter SB 181 of 2012, a bill to create a Task Force to Study the Public Financing of Judicial Elections. The sole purposes of this task force, made up of legislators, judges, and others, would be to:
study the feasibility of adopting a public finance system for judicial elections
review best practices for publicly financing judicial elections
develop a proposal to institute a public finance system for judicial elections
SB 181 requires the Task Force report back on these three elements by December 31, 2012.
The video below is from the February 7, 2012 hearing on the bill.
Legislative anger of state supreme court decisions is nothing new, nor is the practice of “punishing” the judiciary as a whole for the decisions of that court. The most visible example so far this year may have been the attempt made in Arizona last week.
Angry over the decision, a state senator attempted to “push back” against the judiciary as a branch in two ways. The first was an effort to end the state’s merit selection system and replace it with partisan elections (SB 1371 / SCR 1034).
The second would have reduced the state’s Court of Appeals (which did not hear the IRC case and had nothing to do with it) from 22 judges to 6 (SB 1372).
The video below is from the February 13, 2012 hearing on these bills before the Arizona Senate Judiciary Committee.
Many states have enhanced penalties for assaults or other crimes committed against judges for performing their functions as officers of the third branch. Many states are however moving to increase the penalties for crimes committed against court staff in the course of their duties. This year one such bill is Wisconsin’s AB 424. The bill
Makes battery or threat to a court employee a Class I felony (Wisconsin felonies range in severity from A down to I).
Makes it a Class I felony to threaten to cause damage to a courthouse and if the threatened action could result in bodily harm to a judge or court employee.
The Wisconsin Assembly’s Judiciary and Ethics Committee heard testimony on the bill February 2, 2012, the video of which is below.
An idea, popular among Republican presidential candidates, is to simply delete or remove from statute the court(s) that issue opinions that they disagree with. A similar effort was put in place in New Hampshire with respect to their Supreme and Superior (main trial) Courts. Under CACR 25, a 1966 constitutional amendment that specifically named the Supreme and Superior Courts in the state’s constitution would be eliminated, allowing the legislature to end the existence of the courts by statute (HB 1131 would set up a committee to work out the details on that).
In debate on the House floor on February 1, 2012 proponents argued that the 1966 put too much power into the hands of the judiciary, “fractured the balance of power” between the branches and that the supreme court was a “super power”, not a co-equal branch. Proponents argued that it would “subordinate” the judiciary to the legislature.
The video below is from the floor debate on CACR 25. The final vote was 251 in favor, 47 opposed (all Republicans).
The issue of mandatory judicial retirement ages has grown more and more pressing as the general populace sees its life expectancy increase. Several state legislatures have grappled with the issue. Below is a hearing conducted before the Florida Senate Judiciary Committee on January 19, 2012 on SJR 408, an effort to increase Florida’s mandatory retirement age.
Florida’s Constitution specifies in Art. V, Sec. 8 that judges must retire at age 70, but may serve out their current term if they have already served roe than 50% of it.
No justice or judge shall serve after attaining the age of seventy years except upon temporary assignment or to complete a term, one-half of which has been served.
SJR 408 changes the bolded text to read “seventy five”. It also makes some grammatical corrections (changes “No justice or judge…” to “A justice or judge…”)
The video below gives some of the pros and cons heard at the committee hearing. In the end, the bill passed 5-0 and was sent to the Senate Budget Committee.
Several states have seen legislative efforts to change the composition and role/function of their judicial disciplinary bodies in 2011. Among the motivating factors are disgruntled litigants who, finding their appeals rejected, wish nevertheless to “hold judges accountable.” Such language was and is at the forefront of the impeachment efforts underway in New Hampshire. Media reports indicate much of the testimony heard before a Tennessee committee regarding that state’s judicial disciplinary body focused on disagreements with the decisions rendered by judges as well.
Minnesota’s Senate considered the issue in the form of hearings conducted on November 17 before its Committee on Judiciary and Public Safety. At issue was HB 1568, the latest in a series of bills introduced in the last several years that would have allowed the Board of Judicial Standards to examine the merits of judicial decisions and used the Boards disapproval or disagreement as the basis for disciplinary actions against the jurist. Several Senators who spoke in favor of the bill did so with an eye towards using the judicial disciplinary process as a means to put pressure on the courts to rule certain ways or to provide a free or low cost alternative to an appeal.
Sen. Michael Jungbauer (R): “I’ve heard many, many issues about judges and cases and people always tell me they feel just this empty feeling when a judge rules something and they disagree with it but maybe don’t have the money or the wherewithal to bring it somewhere else.”
Sen. Dave Thompson (R): “The judiciary has taken on a much more significant role in our society that it should have through asserting itself overly aggressively in the area of judicial review and other things…So the problem we have here is judges are too significant, which is why how we select them and how we discipline them and how we review their performance has become far more important that it ought to be and until the judiciary is willing to see its role as less significant in our society and until legislatures are willing to do the politically difficult thing and ask judges about the decisions that they make, we’ll never solve the problem.”
The video below is from that November 17 and includes those portions that discussed changes to the Board and its role/function.
Proponents of Issue 1 (then known as HJR 1) in the Ohio House* made several arguments against the proposal. The video below outlines many of them, but they can be (and have been for electoral purposes here) summarized as follows:
The current system works fine
The current age limit prevents an entrenched judiciary
Retired judges can be recalled to service by the Supreme Court; this will make that pool of retired judges even older
The sections repealing Supreme Court commissions and courts of conciliation should be dealt with separately
Proponents of Issue 1 (then known as HJR 1) in the Ohio House and Senate made several arguments in favor of the proposal. The video below outlines many of them, but they can be (and have been for electoral purposes here) summarized as follows:
The proposal keeps experience, knowledge, and integrity in the judicial system
The proposal includes rigorous judicial accountability
The proposal creates no additional financial burden
