At least give credit to a special
committee made up of legislators, judges, and lay people most connected to the
judicial function of state and local government that gave every indication it
would miss a legally-imposed Feb. 15 deadline on producing final reports on a
full slate of judicial bodies, investigating questions about appropriate
caseloads and resources for the three parish, five appellate circuit courts,
and 48 district and 49 city court systems in the state. After three years, it
produced something by this deadline on 8 court systems – the easiest with those
being the parish and circuits courts – and left the other 92.4 percent off by
boldly declaring more study was needed, and now its members can go congratulate
themselves for being on time.
But incredibly off target, as New
Orleans’ Bureau
of Government Research has outlined. Past efforts by the group,
embarrassingly for the special panel using that committee’s own methodology,
demonstrated vast inequities in judicial resources across the state that
indicated perhaps a quarter of all courts were superfluous, thereby rendering them
as little more needed than as vehicles to transfer taxpayer wealth to a small
group of elected officials and bureaucrats. It urged the commission, which
appeared to dither with few meetings and no sense of urgency in scheduling
activities to meet the statutory deadline to produce reports with meaningful
conclusions about significant reform measures or reasons why that wasn’t
needed, to be on time because this would be the last regular session of the
Legislature before elections for roughly four-fifths of judicial slots this
fall. The Constitution prohibits shortening the lengths of terms for judges, so
any solution that includes eliminating judgeships this means a wait until 2020
for any action, with the remainder prior to 2016, 2018, and 2022.
What was
produced was little more than a whitewash. It gives some statistics on the
various systems and the feelings of judges and judicial personnel, but does no
real analysis of the appropriateness of the size of the systems as a whole. And
to really stick it in the eyes of taxpayers, among the very few conclusions
reached was that among the few courts of which there was any attempt to analyze
resource appropriateness, for appellate courts there was a recommendation to
create more appellate judgeships.
This feeble exercise in
self-justification should not surprise, for three reasons. One, being as 33
members of the House are attorneys and five others who have worked in allied
judicial fields, and that 12 senators are attorneys with a couple of others
having worked in allied fields, means that over 36 percent of legislators have
some professional and career connection with the judicial system. Most still
are involved in it in some way, which means they interact with judges and their
courts on a regular basis. And the last thing they want to be known for around
the courthouse is in supporting legislation that might put some of the
courthouse crowd out of work, for this might have something to do with how
their matters in front of courts get disposed.
Some, however, would want as many
judgeships around as possible because they have career ambitions in those
directions. Like tigers
that turn to dining on humans, their legislative service allows them to
acquire a taste for living off of taxpayers with a chance for doing even more
of what they want with even fewer constraints than with being legislators – and
often getting six-figure salaries for doing it with a longer job guarantee, as sitting
judges rarely lose reelection. Therefore, any reduction in judgeships turns
self-defeating when it comes time for them to exit, forcibly by term limits or
otherwise, as that only reduces the number of parachutes available.
Finally, given that roughly half of
(and obviously all rural) state judicial districts have one or two judges per
parish, for those judges that choose to wield it along with sheriffs and
district attorneys they can exert disproportionate political power in their
districts by virtue of being one of those very few parish-wide elected
officials. Thus, they may have influence over campaign fortunes, and as
legislators themselves get elected from these districts, they may not want to
rile into political opposition to them those judges who embrace the powerbroker
role by putting them out of a job with reform.
Naturally, this report will be
used by a number of legislators with feet of clay to do nothing in the upcoming
session. Which means that interests wishing to create a judiciary appropriately
sized for its actual workload now must embrace a longer term strategy to effect
reform. And increased boldness might serve this cause well.
One tactic to increase success probability
would be to change the conception of judgeships as political plums by changing
the selection method. The partisan election scheme could be changed to what
is known as the “Missouri Plan,” where a judge initially is appointed and then subsequently
runs in relatively frequent retention elections in order to keep the job, or if
voters reject him to start the process anew. As an alternative, instead of
retention election, an easier recall process can be formulated.
Especially if some kind of merit
qualifications were included in the appointment process, this would make the
presence of a judgeship much less likely to become an opportunity for
legislators to position themselves to move into the job, given the variables in
timing and vagaries of appointment, making them less hesitant to introduce
reform. It also would dilute judges’ power over local politics in that they
would have less security over their jobs, especially in the appointive term,
which might embolden legislators to make changes.
Changing the selection system
obviously looms as a long-term project, but given the same is true of
establishing the right number of judgeships, synergy between the two can get
these two most important reforms of the Louisiana judicial system into place,
with a goal of 2020 for implementing the changeover for both. Vested interests
won this round, even as the people racked up a small victory for even getting
the size issue on the agenda, but that need not be the outcome in the future.
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