A Truly Independent Judiciary?

"All the rights secured to the citizens under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous judiciary."  --Andrew Jackson

Former President Andrew Jackson's comments about an "independent and virtuous judiciary" were not flowery prose about an unassailable judiciary.  Instead, they were made in a letter to a nephew in 1822, criticizing an attempt to repeal part of the Judiciary Act of 1789, which established federal supremacy over state law.  Jackson sometimes blew with the wind regarding whether he agreed with the federal judiciary or not, but the point remains valid today.  Constitutional rights, including due process of law or right to a jury trial, are mere words on a page unless a truly independent judiciary follows their sworn duty to enforce and uphold them.  This is true both on the federal and state levels, including here in Arkansas.

Perhaps it is the prevalence of legal dramas in movies and on TV.  Maybe it is one too many John Grisham novels.  But in the past few years, I have been forced to respond to fears from clients that "the judge has been paid off," or that a case is "too politically charged for justice to be served."  I often laughed this fear off and spoke in a reassuring manner to clients that such things don't actually happen in real life.  Judges aren't bribed.  Politics don't enter into judicial decisions.  You have nothing to worry about.  I know this isn't what you do for a living, Mr. or Mrs. Client, so let me assure you I have never seen or heard of that happening.

But now, I am not so sure.  With the developing story in Faulkner County about the Estate of Martha Bull nursing home case that has now mushroomed into a full blown John Grisham novel, maybe I was the naive one.  In that case, former Judge Mike Maggio has already pleaded guilty to accepting a bribe to reduce a $5.2 million plaintiff's verdict to $1 million from nursing home mogul Michael Morton, via an intermediary, Gilbert Baker.  Maggio has since been removed from the bench and is looking at jail time.  His legal career is over.  What will ultimately become of Morton and Baker is unknown.  This case shocks me to the core that such a thing could ever possibly happen.  But it did.  One of the parties involved admitted it did.  Clients read the newspaper.  They read blogs.  They know this happened.  How can they be assured it won't happen to them?  I have no answers.

The Arkansas Supreme Court is in turmoil right now over the gay marriage case.  Circuit Judge Chris Piazza struck down the gay marriage ban as unconstitutional, and the case was briefed on an "expedited" basis and argued before Thanksgiving last year.  However, what happened right around the same time?  An election.  A landslide election.  And elections often have consequences.  A judge recused after being contacted about the case by a state senator, causing the need for the appointment of a special judge to hear the case.  In the interim, the Supreme Court has had turnover and the Arkansas Attorney General has petitioned the court for the new batch of justices who won their elections hear the case all over again.  The common thinking is that the justices who were elected would be more receptive to the state's case to uphold the ban than the ones who heard it last November.  Four members of the Court have gone so far to create a "new case" to decide which judges will actually decide Judge Piazza's underlying decision or the "old case."  All of this is against the backdrop that the United States Supreme Court will likely issue a ruling at some point this summer, possibly rendering any state decision moot.  Two justices, Justice Hannah and Justice Danielson, felt so strongly that the majority on the court was attempting to put off reaching a decision in the underlying case so the United States Supreme Court could rule on the issue that they recused and stated they would not be a party to such machinations.  Such action would then allow the court to avoid a difficult and potentially politically problematic ruling.  Yesterday, the Governor Asa Hutchinson appointed three special justices with widely known political beliefs that seem to be sympathetic to the faction on the court who either want to delay a ruling or to uphold the gay marriage ban.  Critics of the above-referenced action feel strongly that "the fix is in."  The Governor, Attorney General, multiple new members of the Supreme Court, and all of the newly appointed justices have commonly known political ties.  What is the public supposed to think?

Maybe it took being slapped in the face with things like this for me to finally get what clients of mine had stated to me over the years.  I felt that they often were paranoid or watched too much TV.  But maybe things like this have always happened in Arkansas, and I was just too blind to see it.  I hope that is not the case.  But with each example like those listed here, it becomes harder and harder for me to laugh off and explain away clients' concerns about whether justice is available to them.  If you ask the plaintiff in the Bull case or the litigants in the gay marriage challenge, I would venture to say that they do not feel like the courthouse doors are open to them.  I would also feel comfortable saying they feel like they are playing into a stacked deck.  They may be right.  It is my sincere desire that both of these matters are fully investigated and all truth comes to light.  

There is at least talk in different circles about moving towards appointment of judges instead of the election process that we now use.  Would the instances that I describe above fill anyone with confidence that their rights of due process and to a jury trial would be protected?  Or could the process be subverted by politically powerful or monied interests to reach conclusions and results they desire?  I truly do not know.  But my eyes are much more open than they ever were.  Yours should be too.