Because of my experience in the 89th District Court during 2008-2010 and the behavior and
actions I witnessed by the man who presided as judge of that court, I have become a passionate advocate for judicial
reform in Texas.
More than a couple of non-Texas lawyers have told me,
"Texas has the reputation for having one of the worst judiciaries in the
country". Granted, that's a subjective measure, but I believe it to
be true.
I believe the reason for the decline in the
judiciary, all across the country, is partisan politics and the degeneration of
the legal profession itself. It's unfortunate that judicial candidates
have to turn into politicians, but that's exactly what they are, when they run
for office. When trial lawyers end up being some of the largest
contributors to a judicial candidate running for positions in the very courts
they practice in, you have a system that is created based on patronage, where ultimately
the trial lawyers have control and accountability. The end result is the
regular voters, who know nothing of judicial candidates and what goes on in
courtrooms across the land and have the intended role of accountability, have
no way to hold judges accountable in elections.
If electing judges is to have any advantage over any
other method of judicial selection, it has to be that a knowledgeable
electorate, willing to break from party lines, is going to turn out judges that
misbehave and abuse their office. The key is a "knowledgeable
electorate" and Texas has one major roadblock to that: a State Commission
on Judicial Conduct that operates in almost complete secrecy, allowing no
access to its records and proceedings. If you think as a citizen of this state
you are entitled to know what complaints have been filed against a sitting
judge, you are sadly mistaken. The current law, as written, does not
allow citizens to have this information.
So, my "bucket list" of reforms for the
Texas judiciary starts out with reforming the State Commission on Judicial
Conduct:
1.
Re-write Texas law surrounding the operation of the State Commission on Judicial Conduct to make the Commission transparent to the
public in its investigations, proceedings and disciplinary
actions.
2.
Add or revise laws to accomplish the following*:
a. Peremptory
disqualification. Texas is one
of a handful of states that does not have this feature. Peremptory disqualification allows litigants
to challenge and have a judge removed from the case before a judicial
proceeding begins. Each party has one
challenge they can use. When that happens, a new judge is assigned to
the case, through whatever selection system the courts currently use.
b. Enhanced
disclosure. At the outset of the litigation,
judges will be required to disclose campaign contributions from contributors
that might that might plausibly bear on their impartiality. Ideally, this would
occur before the right of peremptory disqualification is exercised.
c. Independent adjudication of
disqualification motions. The
fact that judges in many jurisdictions
decide on their own disqualification challenges, with little to no prospect of
immediate review, is one of the most heavily criticized features of United
States law in this area – and for good reason. Allowing judges to decide on
their own disqualification motions is in tension not only with the guarantee of
a neutral case arbiter, but also with states’ express desire for objectivity in
disqualification decisions.
d. Transparent and
reasoned decision-making. All judges who rule
on a disqualification motion should
be required to explain their decision in writing or on the record, even if only
briefly. Such a requirement would facilitate appellate review and ensure
greater accountability for these decisions.
e. De novo review on
interlocutory appeal. Making appellate review more
searching would be less important if
the other reforms on this list were adopted, but it would still provide a
valuable safeguard against partiality. The United States Court of Appeals for
the Seventh Circuit, the only federal appeals court to review recusal
determinations de novo, offers one example of a court that has embraced
enhanced review.
f. Mechanisms
for replacing disqualified judges. If recusal is to provide a due process
pro-tection, rather than an invitation for gamesmanship, courts need to put in
place efficient methods for replacing a disqualified judge. This is
particularly true at the appellate level.
g. Expanded
commentary in the canons. Expanding the canon commentary on
recusal, while a “soft” and highly
limited solution, would nonetheless offer relatively costless guidance for
judges seeking to adhere to the highest ethical standards, even when not
strictly required.
h. Judicial education. Seminars for judges that enable them to
confront the standard critiques of
disqualification law might provide another soft solution for invigorating its
practice. Judges could be instructed on the underuse and underenforcement of
disqualification motions, the social psychological research into bias, the
importance of avoiding the appearance of partiality, and their own potential
role in helping to reform recusal doctrines and court rules.
i. Recusal advisory bodies. Just as many states, bar associations, and
other groups have created non-binding
advisory bodies to serve as a resource for candidates on campaign-conduct
questions, a similar model might be followed with respect to recusal. Advisory
bodies could identify best practices and encourage judges to set high standards
for them-selves. Judges could be encouraged to seek guidance from the advisory
body when faced with difficult issues of recusal. A judge accepting such advice
could expect a public defense if a disgruntled party criticized a decision not
to recuse.
3. Every proceeding that does not involve
a jury, where a judge makes a decision that the parties are bound to,
should be subject to an appeals process. In certain civil cases,
where the litigants can choose not to have a jury, there are some situations
(temporary support hearings in a divorce, for example) where a judge's
decision cannot be appealed. Such situations invite abuse and create
openings for attempts to influence the judge.
* Taken from the Brennan Center for Justice, Fair
Courts: Setting Recusal Standards, by
James Sample, David Pozen and Michael Young.
Russ Darbyshire
Frisco, Texas
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