Wednesday, March 24, 2010

No Relief For "Substantial And Concerning Judicial Independence Issues"

The South Carolina Supreme Court dismissed an appeal brought by a family court judge who has served "ably and with honor" since 1993 and has been re-elected to office for two successive six-year terms.

 In South Carolina, candidates for judicial office must be certified as fit for office by the Judicial Merit Selection Commission (the "JMSC") before the Legislature may consider their election. The "election and re-election of justices and vested solely in the South Carolina General Assembly."

When the judge applied for re-election (her term of office ends this June), her re-election was opposed by a "disgruntled family court litigant" who complained that the judge had failed to recuse herself from his case. As a result of the complaint, a majority of the JMSC "found [the judge] unqualified, therefore foreclosing the Legislature's consideration of her re-election bid." The judge filed an action that raised several challenges to the decision of the JMSC. Here the court concluded:

While the complaint of [the judge] raises substantial and concerning judicial independence issues, it is our firn judgment that the law provides her no relief.

The court dismissed the complaint:

The elephant in the room is judicial independence.  A central feature of Petitioner's case concerns judicial independence.  Echoing those same concerns, amici curiae briefs in support of Petitioner have been filed by the South Carolina Chapter of the American Academy of Matrimonial Lawyers and the League of Women Voters of South Carolina.  It is argued that the actions of the JMSC in finding Petitioner not qualified undermine the independence of the judiciary.  More to the point, we are reminded that it is a chilling threat to judicial independence for judges to approach decision making knowing that the difficult and sometimes unpopular decisions they must make will be resurrected in the re-election process through a political lens.

All but three states impose some sort of re-election process, from public elections, to retention elections, to reappointment by the executive or the legislature.  "Thus, in 47 states, incumbent judges know that their ability to keep their jobs depends on gaining the approval of others. This is hardly a scheme calculated to ensure that judges will apply the law. Reappointments and reelections are instituted precisely so that the incumbent judges do not stray too far from the preferences of the reappointing authorities. From an independence perspective, it makes no difference whether the re-selection is done by popular election or reappointment; in both cases judges are made answerable--accountable--for their decisions to an institution that is concerned with political results far more than with legal principle." Michael R. Dimino, Sr., Accountability Before the Fact, 22 Notre Dame J.L. Ethics & Pub. Pol'y 451 (2008).

Judicial independence is not for the protection of judges, although it is often thought of in that context today.  The principle of judicial independence is designed to protect our system of justice and the rule of law, and thus maintain public trust and confidence in the courts.  With judicial independence, the winners are everyone.   

We acknowledge the importance of judicial independence and our ethical mandate to uphold the integrity and independence of the judiciary...

We are left with Petitioner's stand-alone judicial independence claim.  Notwithstanding the undeniable significance of judicial independence, a judge's ethical duty to uphold judicial independence is not a grant of judicial power.  We may not under some thinly veiled guise of law assert judicial power to an action taken by another branch that lies within its exclusive constitutional authority.  The South Carolina Constitution expressly vests in the JMSC the sole determination of a judicial candidate's qualifications, and the General Assembly is constitutionally charged with the election and re-election of judges found qualified by the JMSC.  Absent an unconstitutional exercise of those powers, the Court may not intervene in these political determinations.  To judicially intervene in the purely political determination of the JMSC would itself violate separation of powers.

(Mike Frisch)

Judicial Ethics and the Courts | Permalink

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