Gavel Grab

Using an executive order, Gov. Maggie Hassan of New Hampshire has created a Judicial Selection Commission to screen and recommend judicial candidates. A similar commission established by then-Gov. John Lynch formally expired on Jan. 1, according to a Union Leader article.

The announcement by New Hampshire’s governor came at the same time that legislatures in Kansas and Tennessee have moved in the opposite direction, gutting the role of judicial screening panels.

In Kansas, the governor recently signed legislation to dismantle a long-used merit selection process, including such a panel, for naming Court of Appeals judges (see Gavel Grab), and in Tennessee, the legislature let die a bill to extend the life of a Judicial Nominating Commission (see Gavel Grab).

Hassan named the members of the 11-person commission. They include attorneys, Read more

In these other dispatches about fair and impartial courts:

• Former U.S. Supreme Court Justice David Souter paid a visit to New Hampshire’s Hillsborough County Superior Court this week. The New Hampshire Union Leader reports that Souter heard his first case at the courthouse on April 10, 1967.
• Iowa Supreme Court justices visited the city of Dubuque this week as part of an ongoing tour that started in 2011. According to KWWL News, the justices listened to oral arguments in two cases on Wednesday.
• The Charleston Gazette reports that West Virginia Supreme Court Justice Franklin D. Cleckley will be presented with the Neil S. Bucklew Award for Social Justice by West Virginia University’s Division of Diversity, Equity and Inclusion. The article notes that Cleckley is the state’s first African American Supreme Court justice.
• Criminal trials in California courts are being delayed due to severe budget cuts, but state Supreme Court Chief Justice Tanil Cantil-Sakauye is working to restore court funds, says the Mercury News. Cantil-Sakauye has argued that the nearly $1.2 billion in budget cuts have “crippled the California courts.”

Despite bipartisan pleas from President Barack Obama for Senate Republicans to end their filibusters of his nominees, judicial candidates continue to wait extraordinary lengths of time to be confirmed, states a New York Times editorial.

Compared to his predecessors, the average wait on a confirmation vote for Obama’s judicial nominees has been 227 days. President George W. Bush’s nominees waited an average of 175 days, according to the editorial.

Senate Republicans filibustered New York attorney Caitlin Halligan twice, leading her to withdraw from consideration last week (see Gavel Grab). If Republicans won’t stop their “malicious behavior,” then Democratic senators must step up and change Senate rules to prohibit filibusters on nominations, the editorial argues. Read more

New Hampshire Question 2, which would have increased the legislature’s control over the judiciary, failed to secure the two-thirds majority needed to pass, reports a NHPR article.

The amendment, which supporters felt was necessary to clarify the legislature’s role in overseeing the courts’ practices, would have granted the legislature “concurrent power” to pass statutes governing New Hampshire’s court system.

Those who spoke out against the amendment argued that it violated the separation of powers. The amendment, they said, would give the legislature the power to impose its will on the judiciary.

In July, State Representative Lucy McVitty Weber wrote in a Concord Monitor commentary that the plan ”poses a grave danger to the long-established doctrine of separation of powers and the balance of power between the legislative and judicial branches,” reports Gavel Grab. Read more

In these other dispatches about fair and impartial courts:

•  As a result of a glitch in New Mexico’s public campaign finance law, the state’s Supreme Court candidates have not been able to opt for public financing, reports the San Francisco Chronicle. New Mexico’s Supreme Court candidates, Republican Justice Paul Kennedy and Democrat Barbara Vigil, have spent more than a combined $100,000 so far.
• According to the Plain Dealer, the Ohio State Bar Association has requested the Ohio Republican Party to cease airing ads against Justice Robert Cupp’s challenger, Judge Bill O’Neill. The ad asserts that Judge O’Neill is sympathetic to rapists because of a specific decision he made in a past case.
• To cope with continuous cuts to California’s court system, the San Francisco northern branch of Northern County moved some of its family law functions to Redwood City, the Daily Journal writes. Beginning on November 1, complex civil litigation and California Environmental Quality Act cases will also be transferred to Redwood City’s Hall of Justice.
• New Hampshire voters will decide on Ballot Question 2, a  proposed constitutional amendment to give more administrative control of the state’s court system to the legislature. Seacoastonline.com explains that supporters of the ballot believe it will serve as a needed check on judicial authority. Opponents, on the other hand, say the ballot will only undermine the court’s independence.

With help from four former state supreme court chief justices, the Institute for the Advancement of the American Legal System (IAALS) has launched a new blog, called IAALS Online.

IAALS, a JAS partner group, is a national research center working to improve the civil justice system.  IAALS Executive Director Rebecca Love Kourlis explains the blog’s mission this way:

“Our work depends on so many—it depends on the lawyers, judges, legislators, researchers, bar leaders, court administrators, litigants and others we’ve worked with to research, implement, and measure solutions to advance a more accessible, efficient and accountable civil justice system. And it depends on all of you who are committed to a legal system that serves society as intended. We believe IAALS Online will allow us to harness the power of national conversations to identify and improve solutions for a stronger system.”

The introductory post by Kourlis, a former Colorado Supreme Court justice, also features a series authored by the four former chief justices, called “Chief Among Our Concerns.” All of the chief justices have worked with IAALS.

These are the former chief justices and their topics:

• Former Arizona Chief Justice Ruth McGregor on the IAALS Quality Judges Initiative;
• Former New Hampshire Chief Justice John Broderick on the IAALS Rule One Initiative;
• Former Oregon Chief Justice Paul DeMuniz on the IAALS Honoring Families Initiative;
• Former Utah Chief Justice Christine Durham on the IAALS Educating Tomorrow’s Lawyers Initiative.

A Nashua (N.H.) Telegraph editorial decried a ballot proposal  to amend New Hampshire’s Constitution and give legislators ultimate authority in making rules for court administration violates the principle of separation of powers. The item is named CACR 26.

“CACR 26 is a bald-faced legislative power grab that supplants a fundamental tenet on which this nation was founded – the separation of governmental powers,” the editorial declared.

In noting strong arguments why voters should defeat the proposal, the editorial quoted from a commentary earlier this year by former New Hampshire Supreme Court Justice Joseph Nadeau and former Gov. Steve Merrill.

“The court is not a state agency. It is a branch of government. By the language of the New Hampshire Constitution, the legislative branch is political; the judicial branch is not. We value an independent political branch, and we value an independent judicial branch,” they wrote. “Everyone, nevertheless, should be concerned about a legislative takeover of the courts, because political control of the judiciary is just not in the public interest.”

Budget cuts continue to interfere with the workings of courts around the nation and their ability to deliver justice.

The state of New Hampshire has started a $275, 000 construction project to improve the Rockingham County courthouse. According to a Seacoast Online article, the project includes adding a heated sidewalk system to melt snow and ice and fixing curbs and sidewalks to meet the requirements of the Americans with Disabilities Act.

The project, coming in right after judicial system budget cuts resulted in layoffs, reduced judge time and periodic closings of clerk’s offices, has raised concerns among members of the court.

“It’s hard to imagine that the court has reduced jury trials and shut clerks’ offices to the public, while another arm of the state has money to heat sidewalks in wintry New Hampshire,” said Rockingham County Attorney James Reams. Reams has already had his personnel budget cut by one staff member and his operations budget reduced by 20 percent this year.

In California, six more courtrooms in San Mateo county are slated to close if the state does not restore funding by 2013. Over the last five years, statewide trial court budgets have been cut by more than one billion dollars. According to an Almanac Online article, the county Superior Court has already cut its workforce by 30 percent, consolidated courts and reduced court clerk’s public availability.

“Trial Courts should not be dismantled, justice should not be rationed and communities should not be denied a rational, accessible and credible means to resolve disputes,” said Superior Court Presiding Judge Beth Labson Freeman in a written statement.

In Iowa, two nationally prominent Republican politicians will join an upcoming bus tour promoting a drive to oust state Supreme Court Justice David Wiggins this fall.

Former Sen. Rick Santorum of Pennsylvania, who won the first-in-the-nation Iowa GOP presidential caucuses, and Gov. Bobby Jindal of Louisiana (photo at left) will join the bus tour, organized by activists critical of a unanimous Supreme Court ruling that permitted same-sex couples to marry.

A Waterloo Cedar Falls Courier article quoted Santorum (photo at right) as saying, “The judiciary’s usurpation of authority in recent years is completely unacceptable.” He added, “It is obviously clear the people’s Constitution gives the judicial branch the least power, and yet these appointed judges continuously legislate from the bench whether it is gay marriage in Iowa, collective bargaining in Wisconsin, or resulting in the death of millions of lives caused by the opinion of Roe v. Wade.”

Defenders of fair and impartial courts are working to counter the ouster drive. Justice Wigginis is facing a retention election vote in November.

“Iowa Democrats, Republicans and independents need to stand together to prevent out-of-state special interest groups from intimidating our judges by threatening to spend millions to oust them,” said Sally Pederson, former Iowa lieutenant governor and chairwoman of Justice Not Politics Action (see Gavel Grab). “Voting yes for retention on the back of your ballot is a vote to protect our courts, and to stop the groups trying to intimidate judges.”

A plan to amend New Hampshire’s Constitution and give legislators ultimate authority in making rules for court administration violates the principle of separation of powers and should be rejected by voters this fall, two prominent critics argue.

Former New Hampshire Gov. Stephen Merrill, a Republican, and former state Supreme Court Justice Joseph Nadeau wrote a commentary in The Keene Sentinel that was strongly critical of the proposal:

“What makes this legislative proposal troublesome and extreme is it violates a fundamental principle of constitutional democracy; the three branches of government ought to be separate and independent. As U.S. Supreme Court Justice Sandra Day O’Connor noted, ‘The framers of the Constitution were so clear in the federalist papers and elsewhere that they felt an independent judiciary was critical to the success of the nation.’ We agree.

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