|
I. Introduction
When discussing judicial independence in Utah, many think about the relatively recent arguments and struggles that have occurred, and certainly will continue to
occur, between the Utah judiciary and the Utah legislature. Where the judiciary has continually argued the necessity of maintaining its independence, the legislature has argued for
greater judicial accountability. However, when considering the issue of judicial independence, little emphasis has been placed on the extensive harm that parties and their attorneys can
have on the judiciary. This article examines the threat to judicial independence when a judge renders a politically unpopular decision and/or vindictive parties and attorneys accuse a
judge of improper behavior. First, this article examines judicial accountability as it exists in Utah. Second, it discusses the public perception of judges. Third, it discusses methods by
which public perception can and at times is used as a tool against judges and judicial independence, and its effect upon the judiciary. Fourth, it suggests some practical solutions to aid
in protecting judicial independence in Utah.
II. Judicial Accountability
Since the founding of our nation, the branches of government at both the federal and state level have been in an ongoing debate and struggle involving
issues of judicial independence and accountability. Although the judiciary is considered a separate branch of government, in reality it is dependent on the executive and legislative
branches in many significant respects, including the appointment and tenure of its judges. At the state level, local governments continuously struggle with the issues surrounding judicial
appointment, retention and accountability. Utah is no exception. Utah's process for selecting and retaining judges has undergone significant changes throughout its history. In its current
form, judges are nominated by commissions, appointed by the governor, confirmed by the senate, and retained through periodic unopposed retention elections. Both the American Bar
Association and American Judicature Society have expressed their support of this process. Several amendments to the statutes governing Utah's judicial nomination commissions were made in
1994, and since that time, issues concerning the merit process and retention elections have regularly been raised. The struggle between judicial independence and accountability remains a
simmering topic in Utah.
Although judicial independence in Utah is considered a vital necessity, the majority would most certainly agree that judicial accountability is just as important. To insure judicial
accountability, Utah has adopted several nationally established processes, including: judicial performance evaluations, retention elections, and the establishment of a Judicial Conduct
Commission.
Rule 3-111 of the Rules of Judicial Administration sets forth the process and criteria for certifying judges for retention elections or reappointment. After three years of experience on
the bench, and every seven years thereafter, the Judicial Council administers performance evaluations to aid in determining whether to certify judges for retention elections or
reappointment. The Judicial Council takes several criteria into account in its evaluations including: integrity, knowledge and understanding of the law and judicial branch rules, ability
to communicate, preparation, attentiveness, dignity and control over proceedings, skills as a manager, and punctuality. Furthermore, judges must meet certain standards in a variety of
areas including: performance as measured in surveys of attorneys and jurors that appear before the judge; compliance with case under advisement standards; compliance with education
standards; substantial compliance with the Code of Judicial Conduct and the Code of Judicial Administration; and physical and mental competence. Once the process is completed, the
Council's determination to certify or not to certify a judge is provided to the Office of Lieutenant Governor for publication in the voter information pamphlet.
Following the performance evaluation process, Utah judges are then subject to unopposed retention elections, allowing the public the opportunity to review the voter information pamphlet
and determine whether the individual judges of their districts meet their expectations and vote as to whether or not to retain those judges. If fifty percent or more of the voters vote to
retain a judge, the judge stays. If a judge receives less than fifty percent, that judge is removed.
When issues arise as to a judge's professional conduct, complaints can be made to the Judicial Conduct Commission. Although the Commission itself has no authority to impose discipline, it
performs confidential investigations and advises the Supreme Court, which imposes discipline. Where removal from the bench may be necessary in cases of unfitness and misconduct, this
method of investigation and discipline protects judges' independence from public sway in individual cases.
Through these various methods, judges in the state of Utah are made accountable to attorneys before the court, jurors, the Judicial Council, the Judicial Conduct Commission, and the public.
III. Public Perception of the Judiciary
Although the greatest threat to judicial independence comes from the assertion of power by the other two branches, the public's perception
can damage the institutional independence of the judiciary. In order to do its job properly, the judiciary must have the public's moral authority. Without it, the courts will not have the
support of the legislature or executive which enforces its judgments and grants it resources to operate. Unfortunately, public perception generally is against the judiciary, especially in
high profile cases where everything a judge does comes under public scrutiny.
Recent polls show that the public does not have a positive perception of the courts and judges.1 Judges are often perceived as uncaring and arbitrary. In general, the public does not understand how or why a judge comes to any given ruling, and as a result, public perception of the judiciary nationwide is continually declining. As Judge J. Thomas Greene stated at the Federal Bar Association's Annual Litigation Practice Seminar on November 3, 2000:
Public perception of our system seems to be that the adversary system is broken, the jury system is not working properly, the amount of justice meted out depends on the amount of money
a person has, there is a disparate and unequal treatment of the races, lawyers are greedy and judges are insensitive. Moreover, extensive surveys have revealed three basic things
about public perception of our civil and criminal justice system. First, that the general public knows little or nothing about how our courts function. Second, that there is an
underlying feeling of hostility toward the third branch of government. And third, that what people do know or think they know about the courts comes mostly from sound bites,
television dramas or sensational and atypical high profile cases. In general, the portrayals of our judicial system and the legal profession by the media provide entertainment rather
than the reality of how our justice system works.2
The media have a substantial role in the public's perception of the judiciary, by giving the general public glimpses of the actions and decisions of the judiciary. However, the media do
not necessarily convey decisions of a court accurately. As Justice Michael J. Wilkins stated at the Utah Bar Foundation's annual luncheon on November 7, 2000:
Please don't misunderstand me. I am not suggesting that the legitimate media intentionally fail in the effort to be accurate, or fair. Quite the contrary. My experience with individual
reporters, and with those who control and direct news operations, is that they are well intentioned, hard working, and dedicated to the notion of the free press being the first and
best defense of freedom for us all. Don't tell anybody, but I actually happen to believe that too.
No, my concern with the working press as it relates to courts, and equally to other governmental operations, is not a lack of good intentions. My concern is with the lack of basic
understanding, and the absence, almost the seemingly exclusion of legal expertise in reporting on courts. I believe it is incumbent on any person or organization that sets itself up
as the full and fair representative of the rest of us as watchdog, or observer, or reporter, to be properly prepared to report accuratelyÉ
More relevant to my daily experience, the media rarely note that the judge who was just reversed by the supreme court was also not reversed in thousands of other decisions made with
the same degree of devotion and within the same demanding rules and time constraints.
My concern for the press is that by their own pronouncement, they act to inform the rest of our citizens what courts and lawyers do, and why. I think some of them have found it easier
to simply act as critics most of the time. Anyone can criticize something they don't fully understand. The more noble undertaking would be to only criticize after assuring that both
the reporter, and the readers or listeners, fully understand what actually happened, and why. Then criticize away.3
A judge remains largely anonymous to everyone but courthouse regulars until there is a high-profile criminal trial. Too often the public then hears the media, politicians, and
organizations criticize judicial decisions and/or the judges that make them because they are unpopular, at least to those criticizing them. However, judges cannot simply base their
decisions upon what the majority of people might want or think. Because the judiciary acts independently of public opinion, and instead bases its decisions upon the law as set forth in
Utah statutes and case law, it continually comes under criticism by those who do not understand or agree with the outcome. Furthermore, the criticism of an individual judge can quickly
become an institutional indictment.
IV. Public Perception as a Tool
Unfortunately, there are cases where the public's perception is used as a tool against the judiciary. We have seen this in recent years, where
nationwide, attorneys, parties, victims, and politicians have made public attacks against judges and the judiciary, acting vindictively, for purposes of intimidation, in hope of obtaining
certain results, reassignment to another judge, and even simply to be seen in the media for political purposes. Instead of going through the legal process or legal recourse, these
critical attacks are made through the media, where a judge ethically has no recourse. It is necessary to examine why these attacks are happening and their effects on the judiciary.
Many perception difficulties that judges encounter do not involve issues of ethical behavior, legal violations, neglect, or a failure of duty. Rather, they arise out of the working
relationships with the parties and attorneys that appear before or have judicial contact with a judge. There is almost always someone on the other side of every legal issue who does not
like a judge's decision, and there is always someone who feels they have lost control or are losing something. This loss can happen in a number of ways: first, an individual becomes
severely frustrated with the system during the process; second, a litigated ruling does not come out in the individual's favor and he/she is unprepared to face the loss; or third, a
litigated ruling comes out in their favor but it does not represent a solution to meet their needs.
When things "go wrong" in court, parties and even their attorneys often look for someone to blame, and the easiest target is the judge. It has been my unfortunate experience to
witness rare occasions where attorneys have acted inappropriately in court, slammed books down on tables, made grandstanding remarks and unfulfilled promises to "prove you [the
judge] wrong," and have openly and publicly mischaracterized facts and circumstances of a case to the media, attacking a judge's reputation and credibility in order to save face or
cover up their own lack of preparation and improper conduct. Fortunately, these experiences have been the extreme exception. The vast majority of the members of Utah Bar are above such
tactics, and continually act as professionals, in and out of court, even when they disagree with a judge's decision.
The effect of such attacks upon judges in Utah damages the judiciary as a whole. As Judge J. Thomas Greene has pointed out "[T]he media is more likely to look for and report apparent
flaws in the system rather than to extol its virtues."4 The public hears a one-sided attack upon a judge without response. The perception is that the allegations must be true, otherwise the judge would respond. However, the general public does not understand that judges are substantially handicapped when public attacks are made against them. They cannot come out in the media and explain their rulings or publicly respond to criticism, at least about adverse perceptions concerning current cases. Where bar associations nationwide can potentially respond to such criticism and media attacks, their timing and content are often not effective to stem the harm already done.5
The criticism and attacks can give a judge a bad reputation and even affect the result of elections, including retention elections. Furthermore, such public attacks injure the principle of
an independent judiciary and mislead the public as to the role of judges in a constitutional democracy. The vast majority of voters in judicial elections are not adequately informed about
candidates and typically make decisions based on meritless considerations, including a judge's public image or recommendations of the media.
In a rare response to an attack upon Judge Baer, who sits on the U.S. District Court for the Southern District of New York, four judges of the U.S. Court of Appeals for the Second Circuit
offered a ringing defense:
The recent attacks on a trial judge have gone too far. They threaten to weaken the constitutional structure of this nation which has well served our citizens for more than 200 years...
When a judge is threatened with a call for resignation or impeachment because of disagreement with a ruling, the entire process of orderly resolution of legal disputes is undermined.
Attacks on a judge risk inhibition of all judges as they conscientiously endeavor to discharge their constitutional responsibilities.6
In the long run, such public attacks against judges will inevitably erode the judiciary's independence. Judges will be unable to avoid considering the personal and political consequences
of making an unpopular decision, and wondering where support might come from should an attack occur.
V. Practical Solutions
It has not been my intention to suggest that judges can "do no wrong." Clearly, if a judge has acted in clear violation of the Rules of Judicial
Conduct, attorneys should act in accordance with established procedures in order to protect the judiciary system. However, baseless and vindictive attacks against any judge should not be
tolerated. Several practical measures should be considered to protect the judiciary's independence from such unwarranted criticism.
First, we as members of the legal profession, both attorneys and judges, must continually act to retain and return dignity and civility to our profession. As the Preamble of Rules of
Professional Conduct states, "a lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials." On an
individual level, we should examine whether we are keeping up our standards of ethics. I refer readers to an article entitled, A Pop-Quiz on Ethics, by Judge Fred D. Howard, found
in the February, 1996 issue of the Utah Bar Journal, also found on Lexis at 9 Utah Bar J. 38. This article provides a list of questions for attorneys and judges, aimed to stimulate
thought and discussion concerning our ethical standards.
Second, we must educate ourselves. We must actively educate ourselves and voice our concerns about the harm being done to our judiciary by unwarranted, vindictive, and politically
motivated attacks. Each of us must be prepared to act with the moral and personal courage to fight these attacks on the state and federal level.
Third, we must educate others. We have a moral and ethical responsibility to educate the public. We need to actively educate clients, our family, the media, even the guy next door, about
misperceptions they might have concerning the judiciary. The problems of an under-informed electorate and media can be further resolved through additional bar sponsored education
programs.
Finally, the judiciary must be provided with methods to effectively defend itself and the system against public criticism and personal attacks against judges. Currently, a judge in Utah
can say and do nothing to clarify or defend his or her position when unfairly criticized. In 1999, ATLA appointed a Judicial Independence Committee, with three subcommittees to respond to
unfair criticism, public education, and legislative-judicial issues. At that time, ATLA President Mark Mandell urged all state trial lawyers associations to establish similar committees.
It is my suggestion that a similar committee be created in Utah to evaluate criticism of Utah judges, and to respond rapidly and timely to unjust criticism of judges or the courts when
the failure to do so will cause irreparable harm to the fair administration of justice.
Other methods should be examined to continually better the legal profession in Utah and the public's perception of the judiciary. By taking an active role in the issue of judicial
independence, we, as members of the Utah Bar, can aid in the administration of justice and prevent irreparable harm.
VI. Conclusion
As members of the legal profession and the Utah State Bar, we must continually act to retain and return dignity and civility to our profession. We have a duty to
act responsibly in defense of the judiciary. Efforts to intimidate judges and thereby diminish the independence of our judiciary must not be tolerated. The moral authority of our courts,
nationwide, is steadily declining. In the end, the effectiveness and independence of our judicial institution rests upon what hundreds of millions think of it, and we play a substantial
role in that perception.
Footnotes
1. See Perceptions of the U.S. Justice System, February 1999; ABA Journal, July 1999 at 86; and The Harris Poll #51, Septembr 6, 2000.
2. See Judge J. Thomas Greene, Views from the Bench: Some Current Causes for Popular Dissatisfaction with the Administration of Justice, 14 Utah Bar J. 35 (May, 2001).
3. Justice Michael J. Wilkins, Views From the Bench: Keepers of the Flame, 13 Utah Bar J. 34 (December, 2000).
4. Greene, supra note 2.
5. See Joseph T. Walsh, Judicial Independence: A Delaware Perspective, 2 Del. L. Rev. 1 (1999).
6. Douglas W. Hillman, Judicial Independence,:Linchpin of our Constitutional Democracy, 76 MI Bar J. 1300, 1303.
|
