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Can Judicial Abuse be Controlled?

by William McGaughey


This article is written under the assumption that judges in Minnesota and elsewhere can be, and often are, abusive. In particular, they substitute their own opinion for the law. Their decisions show a lack of humane consideration for the people involved. They may also be personally arrogant or politically biased. Their decisions may violate common sense.

Now I believe that there are many good, honest, and conscientious judges in Minnesota and elsewhere. But we are talking about the other kind. In a democratic society, what can be done to deal with this problem?

First, it will be argued that most state judges, once appointed to the bench by the Governor, are subject to review by the voters at regular intervals. They are therefore subject to democratic control. However, the fact is that many or most judges in Minnesota run unopposed. And, even if there were a contest, the voters would have little information on which to make a choice. Judges should be judged on their judicial record; but that record is not readily available to the public. Moreover, it is so technical in nature that the average voter would not know whether the judge was acting properly or not. In elections of legislators or government executives, we at least have party designations that give voters a sense of the candidate’s political philosophy. But judges are supposed to be above that. We are forced to judge them as persons, not knowing their record.

The main way that voters have access to judicial records is through special-interest groups that want judges to rule in a certain way. For example, the Minnesota group, WATCH, consists mainly of women who want courts to rule in favor of women. There is no equivalent group favoring men. Therefore, politically ambitious judges will tend to do what groups like WATCH want - favor women - to increase their chances of reelection or promotion within the system. This is not an ideal situation if we want judges to be fair.

I have been told by several lawyers that judges think they are a law unto themselves. They do what they please regardless of written law or the facts of a case. There are also evident political biases within the court system. This is a case where absolute, unchallenged power has corrupted a branch of government. Not all judges are irresponsible but the abuses of some still need to be addressed.

So what can be done? I am assuming that it can be initiated through the state legislature where laws are passed.

Stylistic changes

First, let me propose some stylistic changes which, while cosmetic, would send a message to the courts. These changes are designed to address judicial arrogance.

The legislature should pass a law (and the Governor sign it) that would outlaw wearing robes in court rooms. Judges should wear business suits like everyone else.

The legislature should pass a law prohibiting judges to be addressed with honorific titles such as “your Honor”. They should simply be addressed as Judge so-and-so or Mr. or Ms. so-and-so, again like everyone else. If “Mr. President” was good enough for George Washington, then “Mr. Judge” or the equivalent ought to be good enough for any judge acting under the authority of the U.S. Government or any of its states. We do not have honorific titles for government officials in a democratic society.

Another law would prohibit court procedures requiring persons to rise when judges enter the court room. Judges are supposed to be public servants and masters do not rise when their servants enter the room.

Now I suppose that some people will consider these mean-spirited suggestions intended to disrespect judges. No, they are intended to put judges on the same level as everyone else except for their ability to decide judicial cases. I think the pomp and circumstance of the present rules and procedures has gone to some judge’s heads. It is this which I mean to oppose. Judges ought not to be considered persons of superior rank in a democratic society.

I understand that even the British, from whom our legal system has been derived, have in some cases adopted a system of magistrates who are legal problem solvers rather than judges. They sit at a table with the parties wearing ordinary business suits. If aristocratic Britain can do it, so can we Americans.

Checks on judicial power

A judicial oath of office: We should also attempt to curb judicial abuse by establishing an oath of office for judges. Unlike other government officials, there is no oath of office for the judiciary. Article V, section 6, or the Minnesota Constitution states that members of the executive branch are required to take this following oath upon assuming their office: “Each officer created by this article before entering upon his duties shall take an oath or affirmation to support the constitution of the United States and of this state and to discharge faithfully the duties of his office to the best of his judgment and ability.” Minnesota judges should be required to take the same oath with the following additional clause: “and to make decisions on the basis of written law in the applicable areas of judgment.”

Enforcement of judicial oaths: A law should be passed creating a Judicial Review Board with five members. The Minnesota House of Representatives would appoint two members of this board; the Minnesota Senate, two members; and the Governor of Minnesota, one member. Decisions would be based on majority vote. Anyone could bring a complaint about a judge to this board, especially on the grounds that the judge had violated his or her oath of office in departing from written law in reaching decisions. The board would decide which cases to take. For accepted cases, it would invite the accused and accuser to make ten-minute presentations followed by ten minutes of questioning. Court rules and procedures need not be followed.

Then the board would issue one of three verdicts: 1. Dismiss the complaint. 2. Issue a reprimand with no further action. 3. Recommend to a committee of the state legislature that the judge be dismissed from office. 4. If the legislative committee declined to dismiss the judge, the Judicial Review Board would then have the power on its own authority to remove the judge from office after another hearing. However, the official removed from office could stand for election to a judicial position in the future. Board rulings, proceedings and documents would be published on the internet so that voters could see the nature of the complaints against removed judges.

More radical intervention in the courts

Without specifying how this might be done, the other two branches of government should rein in the abuse of judicial discretion and, hopefully, the policy-making tendencies of courts. Ideally, judges would interpret the facts of each case in light to existing law. There can be little justification for bending the law because of the way previous courts have decided similar cases. In other words, ideally, judicial precedent would go out the window.

Also, the appellate courts should require that if a lower-court judge uses “discretion” to depart from written law, an explicit reason needs to be given for the departure and the appellate court would be required to examine and decide whether the reason warrants departing from law. The appellate court should not automatically acquiesce to claims of judicial discretion.

With respect to public policy, legislatures, not the courts, are the proper vehicle for making changes. But the executive has the ultimate check on judicial power in being able to deny execution of court decisions considered abusive. At some point, a President or the governor of a state will use that power.

A practical note

How can we expect the Minnesota legislature or the Governor to embrace such a proposal limiting the power of the judiciary? That seems difficult to imagine. However, there is one approach that should be considered. In 2014, the nation’s premier third party, the Independence Party of Minnesota, lost its designation as a major party because its top candidate in election to a statewide office narrowly failed to gain the necessary 5 percent of the vote. Will the Independence Party be content to remain a minor party by offering platitudes and meaningless slogans as it has in the past; or will it take a chance on backing a controversial measure such as that of curbing abusive judicial power in Minnesota? If the latter, it has a chance of regaining major-party status by standing for something that matters to voters.

If the Minnesota Independence Party does regain major-party status by embracing such proposals, that would put the proposals on the political map. The ”radical intervention”, while interesting, would be too controversial to be a serious proposal now. However, I think the idea of requiring judges to wear street clothes and be addressed in a manner similar to other citizens might well appeal to Minnesota voters, especially those who have not been treated so well in the courts. Down the line, the requirement that judges take oaths swearing to follow the law might also have popular appeal. Even the idea of a Judicial Review Board could appeal to voters who care about democratic processes and checks on abusive government power.

In other words, a future election for a statewide office in Minnesota could provide an effective marketplace of ideas if a political candidate representing Minnesota’s Independence Party (or any other party, for that matter) presented a real program for judicial reform. As an Independence Party candidate, I myself gained 7 percent of the general-election vote in the 2008 election for U.S. Congress in the heavily DFL 5th district. The 5 percent threshold in a statewide race should not be hard to surpass if a motivated third-party candidate ran a vigorous, forthright campaign with the right issues.


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