3 Chief Justice Stresses Need for Judicial Independence

Tuesday, October 10, 2006

Page 3

Chief Justice Stresses Need for Judicial Independence

By TINA BAY, Staff Writer

Chief Justice Ronald M. George has expressed concern that growing politicization of the judiciary in other jurisdictions could be a “preview of coming attractions” for this state if judges and lawyers are not vigilant.

George expressed that view in Monterey during a question-and-answer session, as well as his 11th annual State of the Judiciary Address, as part of the concurrently held annual conventions of the State Bar, California Judges Association, and Conference of Delegates of California Bar Associations.

In his yearly speech, given at the Hyatt Regency and the full text of which appears on page 16 of this paper, the chief justice exemplified what he called “troubling developments” in the area of judicial independence with South Dakota’s “Judicial Accountability Initiative Law,” which will appear as on the state’s ballot next month.

If passed, the measure would eliminate judicial immunity for a bench officer upon a special grand jury’s finding that he or she made an abuse of judicial discretion—“basically just a ‘bad call’ in the view of the sponsors of this measure,” he said.

Additionally under the law, the chief explained, judges would be subject to possible civil and criminal sanctions for decisions rendered in the course of their duties, and to permanent removal them from the bench.

“They call this ‘three strikes and you’re out’ for judges and black collar crime,” he told the audience. “You have to read it to believe it. They have a website. You can access it.”

Although such inflammatory developments have not yet appeared to affect the selection of judicial officers in this state, George pointed out—noting he was “ashamed” of the fact—that the South Dakota JAIL initiative originated with a California group whose plan is to pass the measure in several of small states before advancing it here.

“[W]e cannot assume we are immune, and if we ignore the trends that are testing the limits in other jurisdictions, we do so at our own peril,” he said.

In addition to attacks on independent judicial decision-making, the chief justice also observed that “increasingly contentious and partisan judicial elections are on the rise across the nations and here at home.”

He said he anticipated that the Judicial Council of California’s national conference on judicial elections next month would generate a “plan for action,” involving collaboration with the bar, that would keep the state’s courts as free as possible of inappropriate partisan politics.

George later elaborated on both the judicial decision-making and election issues during a CJA question-and-answer session, conducted by Third District Court of Appeal Justice Vance W. Raye and San Diego Superior Court Judge Joan Lewis at the Monterey Plaza Hotel.

He reiterated that the South Dakota judicial accountability measure originated

with a group of Californians who intend to bring the initiative back to their home state.

“[I]t’s not something that we can dismiss as something that’s kooky in another state. It’s, first of all, our own kooks who are pushing it,” he said, explaining that they deliberately selected South Dakota as the initial testing ground because it took only 35,000 signatures to get the measure on the ballot.

The initiative was disconcerting because it was “just an anti-judge thing” rather than the result of any inflammatory decision by the South Dakota courts, George added.

Ultimately, he said, he hoped the California judiciary could prevent such attacks from taking place in this state by engaging in community outreach and helping the press understand what judges are doing.

“People will have to know how and why judges make their decisions, that it isn’t just a thumbs up or thumbs down,” he said.

The chief justice also expounded on the problem of partisan politics in judicial elections.

In Ohio and Texas, millions of dollars are spent on races for the Supreme Court, with people running against each other as Republicans and Democrats, and being supported by competing financial interests, he said, noting:

“They even had one year, I understand, competing candidates for the Texas Supreme Court backed by competing oil companies. That was just a terrible way to select judges.”

In Pennsylvania, George pointed out, several Supreme Court justices were challenged because they were going to be the incidental beneficiaries of a raise that the Legislature voted itself but did not ask the court to review. One of the justices barely survived while the other was defeated, he said.

Two weeks ago in Washington, D.C., he added, he spoke on attacks against judicial independence at a conference that was organized by retired U.S. Supreme Court Justice Sandra Day O’Connor and Justice Stephen Breyer and criticized the court’s decision in Republican Party of Minnesota v. White, 536 U.S. 765 (2002).

The 5-4 ruling that a clause in the state constitution barring judicial candidates from announcing their views on disputed legal or political issues violated the First Amendment has made things “ a lot more difficult” for judges trying to remain free of politics in their decisionmaking, George said.

After his comment, he said other expressed their disapproval of the decision—and that O’Connor, who both signed the majority opinion and authored a separate concurrence—plainly admitted that the court got it wrong.

In addition to avoiding partisan elections, the chief justice called on judges to guard against having legislation regulating the internal affairs of the courts “foisted” on them.

“Let’s have judges regulate what we’re doing ourselves instead of having intrusion by the other branches of government and undermin[ing] our judicial independence,” he urged the CJA.