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Saving the court

Money, takeover imperil authority by ROBERT L. BROWN SPECIAL TO THE DEMOCRAT-GAZETTE | September 18, 2017 at 2:18 a.m.

Public confidence in our state's highest court has diminished in recent years, and actions are afoot to diminish it further. The first attack concerns money and the selection of justices to the Supreme Court.

I have always supported the popular election of our justices while recognizing that dramatic reforms to the process are needed, particularly in the realm of hidden money controlling elections. What is clearly paramount in this reform is knowing who is actually making those contributions.

In the past three elections for justices to the court, the successful candidates were all the beneficiaries of six-figure efforts by third-party groups that ran advertisements independent of the candidates' campaigns. The names of the contributors to these third-party entities, such as the Judicial Crisis Network, the Judicial Fairness Institute, and the Law Enforcement Association, were not known at the time of the elections either to the candidates, we are told, or to the voting public. That should not be.

Democracy is defined as government by the people. What could be more damaging to a democracy based on popular elections than secret money buying the elections? As Arkansans, this should appall and deeply offend us. The people's right to know who is behind these costly political ads is transcending and overcomes any notion that these clandestine contributors have any superior right to privacy or protected speech.

Justice Antonin Scalia, who championed unlimited corporate contributions to nonprofit contributors to political campaigns, strongly advocated transparency from individual givers. He wrote: "Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed."

One would think that the people giving major funds to champion a candidate for the Supreme Court or a specific cause would leap at the chance to stand up and be counted rather than shrinking from being identified. But these people choose to hide their identities. As John Milton wrote in defense of free speech against censorship, "I cannot praise a fugitive and cloistered virtue that never sallies forth to meet its adversary." The same can be said about these masked contributors who fear the sunlight. Democracy and the integrity of the Supreme Court are brutalized when the identities of people having a resounding impact on our elections are unknown. This must be corrected.

The second issue that threatens to undermine judicial authority is the proposed usurpation of the Supreme Court's rulemaking power. This is the power by which it ordains the pleading, practice, and procedure for all Arkansas courts. This threat is part of the proposal known as Senate Joint Resolution 8 that will be submitted to a vote of the people in November 2018.

The cornerstone of our state and federal constitutions is three co-equal branches of our government--the executive, legislative, and judicial branches. The idea by our founders was, and is, that this division of power would thwart a consolidation reminiscent of a monarchy. Checks and balances would develop among the branches so that one could not reign supreme. Balance was deemed to be absolutely essential and a protection against an abuse of power by any one branch.

The problematic language of SJR8 is that the General Assembly, by a three-fifths vote of each house, may enact laws amending or repealing Supreme Court rules of pleading, practice, or procedure and may adopt its own rules to supersede Supreme Court rules. Only the right of trial by jury and substantive rights are protected. Putting aside the point that direction of how Arkansas courts should operate goes far beyond the ken of legislative authority, this proposal exceeds what a vast majority of the states have authorized by statute or constitutional amendment.

When the General Assembly seeks to control and have the final say on all rules adopted by the Supreme Court, it amounts to a severe encroachment on this delicate balance of power. The role of the General Assembly is to establish public policy and not to intrude into areas of judicial pleading, practice, or procedure.

So why does the General Assembly seek to control Supreme Court rules? Obviously, by adopting its own procedural rules to supplant those of the Supreme Court, it can dictate when suits could be filed, the proper parties, when judgments could be entered, and when appeals could be taken. These are just examples of a host of other rules that could be adopted and changed.

Some argue that the proposed legislative incursion included in SJR8 simply mirrors the power Congress has over U.S. Supreme Court rulemaking. Not so. Congress only has the power to reject, modify, or defer proposed Supreme Court rules. It does not have the power to adopt superseding rules on its own initiative.

The takeover of Supreme Court rulemaking authority cannot be tolerated because it grabs from the court its power to design legal practice and procedures. Accordingly, SJR8 should not be adopted with this troublesome feature.

Nor should we countenance electing our Supreme Court justices by hidden money. Our General Assembly or governor should halt such clandestine political advertisements. Other states have entertained disclosure of actual contributors by legislative act or agency rule as a prerequisite to allowing these ads to be aired. Arkansas should join ranks and be in the forefront of these efforts. It is too important for us to sit by and do nothing.

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Former Justice Robert L. Brown is retired from the Arkansas Supreme Court.

Editorial on 09/18/2017

Print Headline: Saving the court

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