JAS Cited in Column on States Pressuring Courts

justice-scalesA column by analyst Lyle Denniston in the Constitution Daily takes Justice at Stake Interim Executive Director Liz Seaton’s recent piece for Talking Points Memo (see Gavel Grab) as a jumping-off point, and asks, “Do state legislatures have the power to shut down state courts?” Seaton’s piece highlighted recent events in Kansas, where legislation was passed that put the entire judicial system budget at risk.  In that piece, Seaton wrote that “an axe is hanging over funding of the entire state court system because elected officials chose to make political pawns of state courts.”

In his analysis, Denniston notes “the actions of a growing number of state legislatures to rein in what some lawmakers apparently believe are courts that exercise too much power and are too resistant to what legislators want from them.”  Examining the situation in Kansas, he writes that “when the legislature uses its budget powers in a way that definitely seems to be controlling how judges rule on legal questions, that stirs up the separation-of-powers controversy to a pitched level.”

“The drama in Kansas has now mushroomed into a fundamental test of the nature of state government, at least when two of the branches are so at odds that a constitutional crisis develops, ” Denniston concludes.  He adds that it will likely fall to the very Kansas state officials who are enmeshed in the controversy, to untangle the legal mess that has ensued.

Petition Process for Judicial Recall Approved in California

The Registrar of Voters in Orange County, Ca. has given a go-ahead for petitioners to start gathering signatures in their effort to recall a judge whose sentencing of a pedophile stirred controversy. The judge has called the recall petition “an attack on judicial independence.”

The Orange County Register reported the latest developments in the effort to recall Superior Court Judge Marc Kelly.  The deadline for collecting signatures is Dec. 31, and the recall campaign chairman said a minimum of 90,829 verifiable signatures will be required in order to get a recall election on the June 2016 ballot.

To learn background about the sentencing and controversy, see Gavel Grab.  

Kansas Opinions Stand Up for Impartial Courts

Over the July 4th holiday weekend, opinions in two Kansas newspapers sounded calls to protect fair and impartial courts from efforts to inject politics into the selection of judges.

The opinions responded to a wave of criticism of courts from Kansas elected officials, including statements by Gov. Sam Brownback last month (see Gavel Grab) and his calls for changing the ways that judges are chosen.

A Lawrence Journal-World editorial underscored the importance of insulating courts from popular opinion and political majorities:

“What the critics don’t seem to understand is that courts should not — and should never — be in the business of responding to public opinion. The executive and legislative branches at both the state and national level are directly responsible to the public, but the judiciary is intended to be responsible only to the law of the land. It’s not a matter of majority rule.”


In Analyses of Supreme Court Actions, a Boost for Impartial Courts?

justice-scalesThe idea of a Supreme Court that is fair and impartial may have been bolstered by its recent landmark rulings, a reading of some analysts’ opinions suggests.

Ruth Marcus wrote in The Washington Post regarding the court’s health care ruling that it “helps — or should help — undermine the cynical view that all judges are mere partisans in robes, reflexively ruling for their team.”

In the New York Times, Jeffrey Rosen wrote about Chief Justice John Roberts Jr., “It’s understandable that liberals and conservatives are disappointed with the chief justice for rejecting positions they deeply favor. But Chief Justice Roberts’s relatively consistent embrace of judicial deference to democratic decisions supports his statement during his confirmation hearings that judges should be like umpires calling ‘balls and strikes.’” (more…)

JAS: Marriage Ruling Shows Need to Protect Impartial Courts

Justice at Stake, remarking on the numerous attacks on courts that preceded the Supreme Court’s marriage ruling on Friday, called the 5-4 decision “a vivid illustration of the central role of courts in our society and democracy” and a reminder of the importance of protecting impartial courts.

The ruling legalized marriage for same-sex couples nationwide (see Gavel Grab.) Here is the statement by Bert Brandenburg, JAS Executive Director:

“Today’s ruling by the U.S. Supreme Court, upholding marriage rights for same-sex couples, is a vivid illustration of the central role of courts in our society and democracy – and a reminder of how vigilantly their independence and impartiality must be protected.  As the issue of marriage rights has progressed through the courts, we have seen numerous calls for impeachment of judges and punitive measures designed to strip courts of their authority.  Today’s decision will come under fire as well, especially since we are entering a heated political season.  But we must always bear in mind that courts are not beholden to politicians or public sentiment, only to the law and the constitution.”


Kansas Legislation Denounced As ‘Blackmail’ and ‘Power Grab’

Controversy over strings attached to the Kansas judicial budget is attracting coverage across the state and nation. Under new legislation, the entire state court operating budget for 2016 and 2017 would be cut if the state Supreme Court rules recent administrative changes unconstitutional.

The Wall Street Journal says that legal experts believe “the legislation may be the first to peg the Third Branch’s budget to the outcome of an individual case, and public-interest groups described it as the most pointed challenge to judicial independence in recent memory.” An editorial in the Lawrence Journal-World describes the legislation as “blackmail” and a “power grab,” whereby “lawmakers are trying to alter the roles, responsibilities and fundamental balance of power among the state’s three branches of government.”

“If legislators and the governor think the Kansas Constitution is wrong,” the editorial reads, “they should tackle that issue head-on and seek to change it — not use budget blackmail to try to force the state’s independent judiciary to change its mind.” An op-ed in the Kansas City Star agrees, arguing that the bill is about control, not about decentralizing power as proponents assert.

Watch Gavel Grab as this story develops.

Editorial: Legislation Threatens Balance of Power in Kansas

The Wichita Eagle posted an editorial criticizing the Kansas legislature for punitively stripping the Supreme Court of budgetary powers.Seal_of_Kansas.svg

The state’s high court has the constitutional power over “general administrative authority over all courts in this state,” but the 2014 judicial budget countered this provision. Moreover, the law included “a non-severability clause [which] guaranteed that if a court struck down the policy changes as unconstitutional, the judicial funding would fall, too.” Partnered with the court’s recent blocking of some major legislation, the editorial contends that the move sent a “clear message”

The 2015 judicial budget, which was recently approved by the Senate Ways and Means Committee, contains a similar clause, but specifies the funding will be revoked for two fiscal years if the measure is ruled unconstitutional.

Power Grab Threatens Kansas Supreme Court

A 2014 change in Kansas Supreme Court authority is being challenged in the courts as more significant changes advance in the state House.

The Associated Press reports that two bills to change how Kansas Supreme Court justices are selected sailed through the House Judiciary Committee on Monday. The proposals would make the process more political, either implementing a Federal System of direct gubernatorial appointment subject to state Senate approval, or partisan elections.


O’Connor Stresses Judicial Independence in Decision Making

Solicitor General Elena Kagan Addresses Georgetown Law Center ConferenceRetired Supreme Court Justice Sandra Day O’Connor, addressing an audience in Palm Beach, Florida, emphasized the importance of judicial independence.

“People don’t often realize the significance of judicial independence,” Justice O’Connor said, according to the Palm Beach Daily News. “We do have laws and principles developed over the years to protect judicial independence in decision-making. … I have traveled the world, and not many countries have had the concepts that have served us so well.”

Justice O’Connor is First Honorary Chair of Justice at Stake. (more…)

Retired KS Justice: 'Save Our Independent Judiciary'

Six_Fred_DA“Kansans should be concerned” that a new court funding law threatens the independence of the state judiciary and violates the separation of powers of the three government branches, retired Kansas Justice Fred N. Six writes in a Wichita Eagle op-ed. He advocates for its repeal.

The new law provides increased court funding while making those funds contingent upon overhauling administration of the judicial system. It allows local courts to opt out of state Supreme Court control over budget preparation and submission and takes away the Supreme Court’s authority to pick chief district court judges (see Gavel Grab).

“As citizens,” Justice Six writes, “we are entitled to a fair day in court, whether to ensure that our rights are protected or our legal disputes are decided impartially. We should be extremely skeptical of efforts by the legislative or executive branches to manipulate the powers assigned to the Kansas Supreme Court by our constitution and make the courts subservient to the political branches.” He concludes: (more…)