Want Justice? Junk Judges!

by Dr. Richard W. Morris, J.D., Ph.D.

Editor's Note:

Scragged has been concerned about injustices in our justice system for a long time.  Recently, an experienced expert submitted a series of ideas for reform.

While we do not necessarily agree with all the specifics of these ideas, there is no doubt that changes to our system are urgently needed.  Our hope is that his observations and musings may help all of us to think through the problems more clearly, understand the underlying issues more fully, and be better informed come elections.

Recently a lawsuit between a landfill operator and an Arizona city,¹ concerning yard waste contaminating the trash, resulted in ten years of litigation and likely over $7 million in attorneys’ fees and costs — with the city ultimately “winning” $280,000.

Not long ago, a man who had been drinking ferried away a broken dryer from an apartment house building in broad daylight, believing he had permission. He is now serving ten years in prison for “burglary.”

Courts today mean high costs, long delays, and outcomes nobody thinks make sense. Lawyers cannot give their clients anything close to accurate predictions about the expenses or results of litigation, whether for the plaintiff or defendant. It is the sport of kings and people know the judicial system is broken. But nobody has proposed real court system reforms that address the real problems.

Early on, America placed judges outside of the executive and legislative branches. The idea was they would be independent of political and financial pressures. It has not worked. The fact judges do not follow the law is a continuing problem. Indeed, the judiciary has morphed into unchecked power.

Lord Acton’s timeless edict describes today’s judicial system: Power tends to corrupt and absolute power corrupts absolutely.² Those in power universally seek to increase the scope of their authority while reminding the little people how powerless they are against the system. The problem isn’t the occasional “bad” judge, but rather a system causing even “good” judges to make bad decisions.

There is a better way.

The current system spawned the problems of litigants feeling victimized by the courts, wrongful criminal convictions, professional allegiances that favor outcomes, cognitive dissonance trumping truth,³ arrogant judges not treating counsel, litigants or witnesses with courtesy, the appointment of honest but incompetent judges, congested calendars with associated delays, judges⁴ suing the state to keep their comfy pensions, a strained budget — and, of course, outright judicial corruption. The legal system fails not only the litigants but society at large.

The system is too cumbersome and expensive for the average person, especially when there is little expectation of fairness.

Like it or not, judges are political, whether appointed or elected. Far too many judges went to law school, got hired by some government agency (or large law firm whose clientele involved governments), and moved to the bench. To get appointed, they had to curry favor with the right people. If elected, they had to mount a publicity campaign in the judicial district to gain name recognition. The way to become a judge has nothing to do with competent and fair judging.

Four concrete reforms can improve the system a lot.

First, similar to the legislative and executive branches, we need term limits. Reform must first ensure that judging is not a permanent or career job. That eliminates costly pensions and perks while making the job more about public service and judges in touch with the community.

Second, create procedures so that each side selects one judicial officer (the judge), and those two judges select a presiding judge. In multi-party cases and other unusual situations, we can adjust this process, but the result is a three-judge panel.

Third, establish the basic qualification to serve as judge: any licensed lawyer in practice for, say, ten years, so the individuals have enough real-world experience.

Fourth, the judges would be paid by the state for criminal cases, and by the parties in civil cases. Private mediation and arbitration cases already use this method. The judges set their fees at the time of employment, and the fees might well be negotiable.

Because the judges would be selected by the parties, even in criminal cases, the lawyers would learn which judges were knowledgeable in the appropriate field of law, diligent, fair, polite and reasonably priced for the case. Even citizens could learn who the best judges were; think Yelp or Better Business Bureau ratings and eBay reviews.

These reforms would not require any changes in the criminal or civil laws or procedures. They would retain the influence of precedents on decisions, thus tending to assure predictability and equal treatment under the Rule of Law. In sum, the significant advantages are:

1. A system that is cheaper to operate;
2. Better court availability because there would be essentially one court for each case, not many cases crammed into one court, thereby allowing the judges to more deeply consider the law and the facts in the individual case;
3. More civility among participants, with judges treating participants with greater respect because the participants would be paying the judges, and the judges could well find themselves as counsel or a party in the future with these same participants who are the judges; and
4. Judges would know the real world because they work in it and are not cloistered in a protected environment.

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Endnotes:

1. Reported in the Arizona Republic, February 12, 2020, page ZA07, “Surprise - Northwest Valley Republic."

2. Lord Acton. BrainyQuote.com, Xplore Inc, 2012.

http://www.brainyquote.com/quotes/quotes/l/lordacton109401.html?gclid=CNrwt9fOsrACFegbQgod1VynTA, accessed June 3, 2012.

3. Tavris, Carol, and Aronson, Elliot. Mistakes were made (but not by me)—Why We Justify Foolish Beliefs, Bad Decisions, and Hurtful Acts. New York: Harcourt (Harvest Book), 2007. ISBN 978-0-15-603390-9. See Chapter 5.

4. Retired judges Ken Fields, Jefferson Lankford, Philip Hall, and Jon Thompson, represented by retired judge Colin Campbell, as reported in the Arizona Republic, March 8, 2012, front page “Valley & State” section.