FAIR COURTS = JUSTICE

THE JUDICIAL BRANCH

“The founders realized that there has to be some place where being right is more important than being popular or powerful, and where fairness trumps strength. And in our country that place is supposed to be the courtroom.”

Justice Sandra Day O’Connor

Topics

1. Characteristics of a fair and impartial judiciary

2. Differences between state and federal courts

3. Elements of judicial decision-making

4. State and federal judicial selection and retention processes

5. Current issues impacting fair and impartial courts

Warm Up Exercise These factors should NOT

impact the judge’s decision in your case❌Public opinion about the issue

you oppose❌Your political party affiliation❌The position of special interest

groups on the issue❌Media reports❌Personal perspectives or

affiliations of the judge

❌Money or contributions

When you walk into the courtroom and face the judge

How are judges different from other elected officials?

Legislators make decisions based on the needs/desires of their constituents or voters, their own beliefs, or their political party’s agenda.

Judges must follow the lawand shouldnot be influenced by politics, special interest groups, money, public opinion or their own personal beliefs.

They should be fair and impartial.

At the start . . .

Colonial Era

Judges selected by the King.

Colonists outlined complaints in the Declaration of Independence citing how the King abused power and controlled the judiciary.

“He (King George III) has made Judges

dependent on his Will alone for the tenure of their offices, and the amount and payment

of their salaries.”

What would happen?

• If a judge ruled against what the King wanted, then they would lose their jobs. The King would just select new judges that would rule the way he wanted

• Judges would no longer base decisions on the rule of law but rather on what the King desired!

If judges ruled based only on the desires of the King (or the Legislature or the President or the Governor) then how would our government be different?

United States Constitution

It limits the powers of government It provides the structure/functions

of government• Separation of powers• Checks and balances

It establishes the rule of law It protects the rights of the people

Anything else?

Who does the Constitution protect you from? Developed by The Florida Law Related Education

Association, Inc., www.flrea.org

What if one entity was able to…

…enforce the law …and interpret the law

…make the law

Total powerin one branch

of the government

The Role of the Courts

What does the judicial branch do?

The role of the judicial branch is to resolve disputes through a legal process, interpret the law and determine if a law is unconstitutional.

To challenge the constitutionality of a law, someone must bring a case to the courts.

Unlike in many countries where laws are reviewed by the courts BEFORE they become law, in the United States, laws are passed by Congress and state legislatures without judicial review. Judicial review only if someone challenges the law in court.

Two Parallel Court Systems

Federal and state courts

Federal and State Court Systems

State Supreme

Court

Appellate Courts

Circuit Courts

County Courts

U.S. Supreme

Court

U.S. Courts of Appeal

U.S. District Courts

appeal

appeal

appeal

appeal

Different Kinds of CourtsFair and Impartial Application of the Law

Trial Court Appellate Court*

Judges sit individually

Juries are present in certain cases

Prosecution or Plaintiff v. Defendant

Attorneys call witnesses and present exhibits as evidence

First opportunity for a case to be heard and establishes facts

Panel of judges

No juries

Petitioner or Appellant v. Respondent or Appellee

Attorneys submit briefs and present oral arguments on legal issues

Determines if the law was applied correctly and if the trial was fair

*Appellate courts do not rehear the case over again. Appellate courts focus on questions of law, NOT on questions of facts like the trial courts. The appellate judges want to know whether the law was applied correctly.

Current Issues Impacting State Courts

What issues impact fair and impartial state courts?

STATE OF THE JUDICIARY

“I am anxious about the state of the judiciary in America. What worries me is the manner in which politically motivated interest groups are attempting to interfere with justice.”

- Sandra Day O’Connor

What issues impact fair and impartial courts?

Infusion of politics and special interest money into judicial elections.

Political attempts to pack the court with like-minded individuals

Attempts to remove state court judges because of a decision on a controversial issue

Reduction of state court funding by the legislative or executive branches

Negative campaign ads Politicization of selection and retention processes

Who selects judges?

Federal Judges (US Constitution)

• Appointed for lifetime terms, assuming “good behavior”• Appointed by President and confirmed by Senate

(Completes comprehensive questionnaire; referred to the Senate Judiciary Committee where confirmation hearings are conducted; American Bar Association Standing Committee on the Federal Judiciary provides an evaluation of the professional qualifications of the nominee’s integrity, professional competence and judicial temperament.)

States utilize one of three models

• Elections– Either Partisan or

Nonpartisan

• Appointments– Different models in different

states

State constitutions or statutes set methods for seating state judges

Hybrid models – Merit Selection and RetentionUsing Nominating Commissions to review candidates, followed by appointment and retention elections

What model does your state use?

What model does your state use to appoint appellate judges?

Judicial Selection in Kansas

A matter of meritW

hat I

s M

erit

Sel

ectio

n? • A process for selecting judges based on their qualifications or merit.

• Judicial Nominating Commission investigates backgrounds of candidates and interviews them at public meeting, then votes which three candidates will be considered by Governor.

• Governor has 60 days to appoint one of the three. If Governor fails to make appointment in 60 days, Chief Justice appoints judge from list of three.

A matter of meritW

hat I

s M

erit

Ret

entio

n? • Election in which voters decide whether a merit-selected judge should remain in office

• First retention election held after judge’s first full year in office

• If judge remains in office after first retention election, then additional retention elections take place every six years for Supreme Court Justices and every four years for Court of Appeals, District, District Magistrate Judges

Voters decide

Appellate court judges in Kansas go on the ballot for their first retention vote within two years after their appointment

Once appointed, how do judges remain in office?

Merit Selection and Retention

The merit selection and retention process was designed to reduce outside influences on the judiciary

Political pressures Personal BiasesPopular opinionsCorruption Special Interests

✗

Selection of Supreme Court JusticesVoters established merit selection for the

Kansas Supreme Court in the state’s Constitution

The members of the Supreme Court Nominating Commission are:

• Four laypersons selected by the Governor, one from each of the four

Congressional Districts

• Four lawyers, one from each of the four Congressional districts, elected by the lawyers in their districts

• One chairperson, a lawyer elected by lawyers statewide

The Kansas Bar Association has NO role in the selection of lawyer members or the chair of the Supreme Court Nominating Commission

Selection of Judges for Kansas Court of Appeals

• Only one appointment made to date under the new system eliminating screening and nomination of candidates

• Governor now appoints without input, subject to confirmation by the Senate

• Names of applicants for the new 14th seat created on the Court of Appeals were not revealed

• Names of lawyers interviewed by the Governor for the position were not revealed

• The Senate, while in special session for a few days in September, affirmed appointment of the Governor’s Chief of Staff – who will take the bench in January

• Until 2013, selection method for appellate court judges was identical to the merit system used for appointments to the Supreme Court

• Process established by statute, not the constitution

• New process passed by the legislature and signed by the Governor eliminated merit screening by a nominating commission

District options for selection of trial court judges in Kansas

Partisan Election

• Half of the 31 judicial districts in Kansas have partisan elections for the trial bench

Merit Selection and Retention

• Half rely on district nominating commissions to select candidates to send to the Governor for choice of appointment

• Commissions made up of equal number of laypersons and lawyers

• Laypersons selected by county commissioners of the district

• A Kansas Supreme Court Justice assigned as Departmental Justice for the district serves as the non-voting chair of the commission

District Magistrate Judges

• Selected according to same local option used for district judges

• In merit-selection districts, the district nominating commission selects the magistrate rather than forwarding candidates to the Governor for his or her selection

Once selected, how are judges held accountable?

Oath of Office – sworn to support, protect and defend the US Constitution and Kansas Constitution

The Appellate Process – judicial decisions can be appealed to a higher court for review

Judges must follow the Constitution (US and State), statutes/sentencing guidelines, case law (precedent), rules (court and procedural)

Retention or Partisan Elections by Kansas voters

How are judges held accountable?

Code of Judicial Conduct – standards of ethical conduct for judges.• Reports of misconduct directed to JQC

(Judicial Qualifications Commission) for investigation.

• Judges can be disciplined (from reprimands to removal from bench) for violations of Code of Conduct.

Impeachment

Selection of Judges for Kansas Court of Appeals

Until 2013, selection method for appellate court judges was identical to the merit system used for appointments to the Supreme Court

Process established by statute, not the constitution

New process passed by the legislature and signed by the Governor eliminated merit screening by a nominating commission

Judging Judges

THE DANGER OF LABELS

“Judicial Activism”

“Legislating from the bench”

“Judge-made law”

“Conservative” vs. “Liberal” Judges

Consult multiple sources Review biographies of judges on court or bar

association websites Read materials published by nonpartisan groups

like the League of Women Voters Review published polls of attorneys and others

highlighting approval ratings of judges or justices

Watch online or gavel-to-gavel coverage to observe courtroom demeanor of judges or justices. You can also read decisions in the cases

Check for public reprimands or other disciplinary actions

Check to see if the judge has any history of discipline as a lawyer

How to evaluate judges

How can you make informed decisions to ensure fair and impartial courts?

Think critically about the role of judges in our constitutional system Examine the judge’s legal and judicial experience as well as his or

her educational background Seek information on the judge’s temperament and judicial

demeanor on the bench Determine if the judge has disciplinary record as a

lawyer or judge Read decisions/opinions in cases to examine

judicial reasoning rather than listening only to sound bites and negative ads

What else would you add?

Benchmarks, a special public education program of The Florida Bar

Justice Barbara Pariente, Florida Supreme Court

The Florida Law Related Education Association, Inc.

Hall+Media Strategies, Inc.

Special thanks to: