First they pass a law basically banning the entirety of abortions in the states. Now they are "checking" the power of the courts. http://www.latimes.com/news/printedition/la-na-judges15oct15,1,192282.story?ctrack=1&cset=true Call of the West: Rein In the Judges Conservative ballot measures in many states would check judicial power. South Dakotans seek a right to sue jurists, Montanans to recall. By Stephanie Simon, Times Staff Writer October 15, 2006 DENVER — Judges across several Western states could soon face new limits on their authority and threats to their independence, as conservatives campaign for ballot measures that aim to rein in what they describe as "runaway courts." Frustration among the right has been building for years, especially since the high court in Massachusetts legalized same-sex marriage in 2003. Politicians and pastors have accused judges of ignoring the public will and legislating from the bench. On Nov. 7, voters will be asked to do something about it. South Dakota's ballot contains the most radical provision: It would empower citizens to sue judges over their rulings. Other proposals would make Colorado the first state to impose term limits on top judges and give Montana residents the right to recall judges over any "dissatisfaction." In Oregon, an amendment would require Supreme and Appeals court judges to be elected by geographic district, so they reflect the values of conservative rural communities as well as the liberal legal establishment in Portland. In three other states, ballot measures would also limit judicial authority, though that is not their primary intent. Proposition 90 in California aims to restrict government's right to condemn private property; it also takes elements of such cases out of judges' hands and entrusts them to juries instead. Nevada has a similar initiative. And a proposal in North Dakota would severely curtail the discretion judges have in settling custody disputes. Supporters cast their efforts as populist and democratic, a way to make judges answer more directly to the citizens they serve. "This is a very measured and mild response to the perception that our courts are out of control," said John Andrews, a former legislator promoting the amendment to impose term limits in Colorado. Opponents, however, warn that the initiatives would begin to dismantle the system of checks and balances set up under the U.S. Constitution. "Judges are there to protect the minority from the tyranny of the majority. They are not there to do the popular will," said Doreen Dodson, a St. Louis attorney who chairs the American Bar Assn.'s committee on judicial independence. "They are accountable to the law and the Constitution." States have always struggled to balance judicial independence and accountability, said Rorie Spill Solberg, a political scientist at Oregon State University. Lately, she said, that scale has tipped ever more toward accountability — and toward a notion that judges should respect, even represent, the will of the majority. All but eight states ban partisan elections for judges in an effort to keep politics — and corruption — off the bench. But Solberg and others worry that the latest wave of changes would make judges more vulnerable to pressure from interest groups and even individuals. "What I see, pretty much across the country, are judges under siege," said former Colorado Supreme Court Justice Rebecca Love Kourlis. South Dakota's Amendment E would have the most sweeping effect; it has drawn opposition from conservatives and liberals — including, in a rare show of unanimity, every member of the state Legislature. Under the amendment judges in the state could lose their jobs or assets if citizens disliked how they sentenced a criminal, resolved a business dispute or settled a divorce. "We want to give power back to the people," said Jake Hanes, a spokesman for the measure. A special grand jury would evaluate citizen complaints against judges — and judges would not be presumed innocent. Amendment E explicitly instructs jurors to "liberally" tilt in favor of any citizen with a grievance, and "not to be swayed by artful presentation by the judge." This deep suspicion of judges is reflected not only on the fall ballot, but also in the rallying cries of the right, especially Christian conservatives. A summit for "values voters" last spring included a session called "The Judiciary: Overruling God." Mock ballots, circulated online, urge Christians to vote for the judge they'd most like to impeach. The American Bar Assn. is so concerned about the trend that it recently produced a DVD called "Countering the Critics," to be screened at churches, Rotary Clubs and Chambers of Commerce nationwide. To encourage lawyers to speak up in defense of the judiciary, the ABA has drafted sample speeches, op-ed articles and letters to the editor comparing judges to referees, sworn to uphold the rules, however unpopular. That analogy does not sit well with Andrews, the former state senator backing term limits in Colorado. In his view, judges too often let their political views color their decisions. Or they arrogantly "ignore or overrule decisions of the people," he said. Andrews' campaign has spent more than $300,000 reminding voters in Colorado of rulings that he considers outrageous, such as when judges struck down a school voucher program, canceled a ballot initiative to limit services for illegal immigrants, and voided the death penalty for a convicted murderer because jurors used the Bible to guide their deliberations.
I agree this seems like a bad idea and could come back and bite social conservatives on the @ss. Considering that even in SD the demographics are slowly changing its not inconcievable that white social conservatives could find themselves minorities in those states and looking for an independent judiciary to protect them in the face of a populace that doesn't support their values. Still I don't see a Constitutional crisis regarding these ammendments as states have a fair amount of leeway regarding to what extent they follow the US Constitutional separation of powers model and how accountable judges and elected officers are. What could prove to be a huge Constitutional problem though is where these populists measures end up stripping or influencing rulings made by judges that are firmly inline with the US Constitution.
there was an intersting NY'er article on this a few months back - this law seems to have stirred a LOT of controversy in SD where they initially thought it would be an easy pass. The rape/incest exception raises a large philosophical debate among anti abortionists because it invalidates part of the message that all life is sacred whch is at the core of a lot of anti-abortionism and essentially divides it against itself. The sole purpose of the ballot measure btw is to get R v. Wade overturned. The suing judges thing is an absolute outrage, IMO, and hopefully will be found unconstitutional in some way, be it state or federal.
I'm okay with this, not because I agree with it, but because I think states are fine to vote and make their own laws. If the states want to be conservative, thats fine, the people who like that will stay there, and the ones who don't can either put up, try to change the law or leave. But in the end of the day, if South Dakotans want to make crazy-ass laws for the people in their state, its fine by me.
Do you think there should be any limits on this? What if a state chose to ban black people? Or if they voted to remove their state legislature and let the governor create all laws? Or make it so all judical rulings could be voted on? It seems like when you start messing with the checks and balances system, bad things happen.
They are going after the wrong group if they really want to clean up the court system. If the US would adopt the UK's policy of making the loser in lawsuits pay for the court costs and the winner's fees (or at least offer that option in the ruling), the court system would clean itself up overnight. Even so, with decisions like these: It is understandable that citizens would want to do this. I think that a referendum impeachment process might be in line.
Yes, that's why there are checks and balances, but I think you have to let them make mistakes, have it then ruled unconstitutional so people learn, then rinse and repeat.
I think I might agree here. I like to have the mistake made, so there is an example, so that the ugliness of something sees the light of day and people can really see it for what it is. But if you change the fundamental which in which checks and balances are made, and the way change itself is affected... be careful.
That would definately help BIG BUSINESS The little guy could not afford to sue .. . even if he right cause the chances are too great that he would bankrupt his family for generations Rocket River
Besides the South Dakotan one, the proposals don't seem too off the wall. An ability to recall a judge, for example, seems reasonable. As for South Dakota, I wouldn't say they are messed up, except maybe it is a little too easy to get a proposal on the ballot. The entire legislature unanimously opposes it and both parties have condemned it. It sounds like a local quack managed to get something on the ballot, that's all. We've all got quacks that embarass our respective states.
I thought people in general wanted to cut down on frivolous law suits. I guess not. Ok let's clog up the courts, get nothing done and have more and more frivolous lawsuits.
If someone sued a judge (#1), another judge (#2) would have to preside over the trial. If he ruled agsinst the judge, judge #1 should sue judge #2 and have a trial presided over by judge #3. This would make for great entertainment, and clearly very fair trials.
I don't understand your point. If you are talking about the Constitutional separation of powers and the fact that the US Legislature has impeachment power, that isn't this situation. These are individual state courts. The US Constitution doesn't provide for state courts, so they can set them up however they'd like. If you are talking about any of these rulings please tell me how any of them are in any way unconstitutional. I'll punt on the overturned death penalty case: if you stretch the establishment clause as far as its been stretched - from Congress shall make no law to City Halls and manger scenes - you can apply it to jury thought processes, too. But if you can make a case for school vouchers or denying social services to illegal immigrants being unconstitutional, I want to hear it.
