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 contribu tions 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 law and should not 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.,

What if one entity was able to… … enforce the law …and interpret the law …make the law

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

Different Kinds of Courts Fair and Impartial Application of the Law Trial CourtAppellate 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 Retention Using 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 Florida Merit Selection and Retention

A matter of merit What is Merit Selection? A process for selecting judges based on their qualifications or merit. A panel (JNC) screens candidates and selects three to six names to recommend to the Governor based on the merits of applicants. The Governor selects one of the applicants for appointment. What is Merit Retention? Process for voters to decide if a judge should remain in office after they have been appointed through the Judicial Nominating Commission. Retention election held after first full year in office and then every six years. Each judges has previously been evaluated through the JNC process.

Merit Selection and Retention The merit selection and retention process was designed to reduce outside influences on the judiciary. Political pressures Personal opinions Popular opinions Corruption Other influences

Thorough Process After applying and going through an investigatory process, the applicants are interviewed by a Judicial Nominating Commission The panel members recommend three to six applicants based on their qualifications to the Governor The Governor ultimately selects the person to appoint to the bench

Voters decide Judges are on the ballot for merit retention every six years Once appointed, how do appellate judges remain in office?

Voting for judges Research demonstrates that the public votes for judges based on very little information. (Carnegie Report) ….if they vote for judges at all. In research conducted by The Florida Bar, 90% of Floridians polled said they did not know what merit retention was and sometimes skipped it on the ballot for that reason. ?

Circuit and County Court Judges Sample Ballot Appellate Judges Merit Retention Sample Ballot Here, appellate judges are not running against an opponent, they are working toward keeping their positions. Each Justice should receive a vote of “yes” or “no”. Here, trial judges are running against each other for a position. Voting for one judge eliminates the other candidates.

Once selected, how are judges held accountable? Oath of Office – sworn to support, protect and defend the US Constitution and Florida Constitution The Appellate Process – judicial decisions can be appealed to a higher court for review (appellate review) Judges must follow the Constitution (US and State), statutes/sentencing guidelines, case law (precedent), rules (court and procedural) Retention Elections

How are judges held accountable? Code of Judicial Conduct – standards of ethical conduct for judges. ml ml 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

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: