Green Delaware Alert 638: Governor Jack Markell needs to reform Delaware’s judicial selection process

Governor Jack Markell needs to reform Delaware’s judicial selection process

One of the greatest challenges facing Governor Markell gets little public attention: Restoring an independent judiciary is critical to providing the checks and balances that have sometimes been lacking in this State. The courts are vital as a check on injustice–something they can’t easily do if the judges themselves have close ties to the sources of the problems, and/or are beholden for their jobs to close associates of the Governor and other elected officials.

This is a problem that requires not more money to fix, but simply and literally, better judgment in picking our judges and magistrates.  The Governor appoints these–with guidance from the Judicial Nominating Commission (JNC) and the Governor’s Magistrate Screening Committee–both established by Executive Order and with a membership mostly determined by the governor.  The JNC provides a short list of potential nominees to the Governor.  A description of how it works is here: http://www.judicialselection.us/judicial_selection/methods/judicial_nominating_commissions.cfm?state=DE .

Causes of problems in Delaware’s courts

The poor state of the judicial branch of our government is tied to the conflicts that lie in the judicial selection process.  When members of the JNC or the Magistrate Screening Committee continue to appear before the same judges they have recommended, there is an obvious conflict.

Another key player is the Delaware State Bar Association, in effect the “lawyers’ union,” which people, especially legislators, seem to have trouble recognizing as the special interest it really is.  As far as we can tell, the Bar Association vets the short list of judicial candidates produced by the JNC before it goes to the Governor.  The Bar presumes to determine who is qualified to be a judge.  So deferential is our legislature to the Bar Association that bills sometimes circulate with “Bar Association,” rather than a legislator, listed as the sponsor.  When there is public criticism of a judge, or the judiciary in general, the response if any usually comes from the Bar.  Under these circumstances, is it surprising that cases are allowed to drag on and on to the profit of lawyers?

The General Assembly has a role in that the Senate confirms judicial appointments, but citizens are not even allowed to testify at confirmation hearings.  If the Governor and the Bar seem to be satisfied with a nominee, that is good enough.

Some people will be surprised by criticism of Delaware’s judiciary.  Every year the United States Chamber of Commerce proclaims Delaware’s courts the best in the US.  Delaware reporters, pols and lawyers trumpet this as if it were so.  But, of course, the US Chamber of Commerce represents big business and not the interests of justice.  To the Chamber, the best courts are those most favorable to corporations and least favorable to human beings.  The Chamber has a long standing “tort reform” campaign, seeking to make it harder to sue corporations for defective products, environmental contamination, medical malpractice, and so on.

The price we are paying:

Delaware markets itself as a safe harbor for corporations and other artificial business entities.  It profits by creating and servicing them–in effect, selling charters–while accepting no responsibility for their conduct.  “Business-friendly” courts are a key part of the pitch.  Ralph Nader and others have pointed out that Delaware’s failure to regulate has led to national consequences–such as the excessive executive compensation that has helped bankrupt corporations.  Today’s economic crisis can lead to legislation to have corporate charters issued by the federal government.

If corporate cases were just a matter of big businesses squabbling among themselves in the Chancery Court, while conveniently generating huge fees for Delaware lawyers, maybe it wouldn’t matter.  But all too often what’s at stake is really a matter of corporations vs. the safety and health of people, and management vs. employees or investors.

Do you think courts dedicated to servicing corporate managers are going to rule very often against developers and polluters, and in favor of a clean environment, or people advocating free speech in malls?

I once listened to then-Chief Justice Norman Veasey give a state-of-the-judiciary speech in Legislative Hall, touting the role of Delaware’s courts in “economic development.”  Later on, Veasey got Delaware national attention for a scheme by which corporations would be able to feed money directly into the courts.  To implement it, he appointed a planning committee loaded with lawyers from corporations that often get sued, such as DuPont and MBNA.  Fortunately the idea was criticized until it was withdrawn.

The economic benefits of this state of affairs to Delaware as a whole may not have been objectively evaluated.  I suspect that while benefiting some, it may be damaging to Delaware as a whole, ­economically, politically and socially.  In his 2008 book  ‘Hot, Flat, and Crowded,” Thomas Friedman noted (page 93) “Whenever governments can raise most of their revenues by simply drilling a hole in the ground rather than tapping their people’s energy, creativity, and entrepreneurship, freedom tends to be curtailed, education underfunded, and human development retarded.”

Friedman, of course is talking about oil dollars, but I long suspected Delaware is paying a similar if less extreme price for its short-sighted dependence on a fundamentally non-productive “industry.”

Even though few ordinary citizens’ cases end up in the Supreme Court, this court supervises all the others, as well as lawyer discipline.  The Supreme Court sets the tone for the entire judicial branch.

A few examples of problems in Delaware’s courts

A shameful episode of “business-friendly” judging is the handling of a “SLAPP” suit against Susan and David Arday.  SLAPP means “Strategic Lawsuit Against Public Participation.” SLAPP suits have only one purpose:  ­to bully and intimidate and exhaust the resources of citizen activists.  The Ardays opposed the development of a farm against the well-known wishes of a longtime owner, her dying grandmother.  The developers were represented, by, among others, the wife of New Castle County Council President Paul Clark.  Delaware, like many places, has an “anti-SLAPP” law, but it didn’t do them much good because the courts didn’t pay much attention to it.  The Ardays had to spend many thousands of dollars in legal fees.  The Chancery Court allowed their personal computers to be searched on behalf of the developers.  It went on and on…..

The only county government in Delaware really trying to represent residents and protect communities is Kent County.  Development interests have sued repeatedly.  The Supreme Court has overruled lower court decisions–such as the Ashburn case–that were clearly in the public interest.

But this isn’t the whole story because many of Delaware’s courts, such as the “Family” Court and the Justice of the Peace Courts, don’t deal primarily with business litigation.  The Chamber doesn’t care much about them.  That does not relieve them of problems.

The Family Court is notorious for unconstitutional closed proceedings, problems with access to transcripts, and the delivery of perceived injustice.  Periodically, near-rebellion against the Family Court rears up in Delaware, but the court always seems to outlast its opponents.  Opinions vary as to the root cause of the problem, but secrecy clearly feeds it.  Rumors persist that when Common Cause of Delaware fought for an open court, the judges set out to destroy it.  Common cause of Delaware is defunct, to the detriment of our state.

At the heart of this problem is a closed loop.  Family law specialists are few.  Lawyers recommend the appointment of their friends to the bench, and their friends protect the system ­and the earnings of their friends–with all the passion of those who believe they are always right and outsiders are always wrong.  Some do it with compassion.  Others are so biased or cynical or protective of their power that they are a menace to anyone who steps into their court.

The website of the Delaware Court Reform Initiative ( http://www.de-cri.org/mission.php) says:  “The driving force behind Delaware Court Reform Initiative is the minimization of the negative impact Family Court has on the lives of families that must utilize the system for divorce, custody, child support and more.”

The Justice of the Peace (Magistrate) Courts are another sort of problem.  These courts, dealing with traffic tickets and such, are the first, and probably the only, courts most Delawareans’s encounter.  Unlike many other states, Delaware’s first level courts aren’t staffed by professional judges.  The Magistrates, or Justices of the Peace, are considered to be at a lower level and typically aren’t lawyers.  These courts, in some cases at least, seem to have become not courts of justice but little more than a sentencing service.  In the case of county maintenance code violations the General Assembly put political pressure on the Courts to sentence more severely.  County officials claimed the courts were going too easy on violators.  This was instigated by New Castle County Councilman Robert Weiner, a lawyer who himself was fired by the Public Defender’s Office for improper use of a judicial data base.  It was pursued by former Representative Robert Valihura, Chair of the House Judiciary Committee, and a task force of other legislators, who never visited the courts or sent observers to see what was actually happening.  Had they done so, they would have seen the elderly, the poor, and the disabled receiving harsh sentences with no realistic right of appeal.

However one interprets the Courts’ behavior, in the end it all comes down to the judges who are appointed.  These men and women have enormous power, and inevitably their biases influence their decisions. Lawyers may move to the bench from major corporate firms with little change in attitude.  “Progressive” interests in Delaware don’t seem to have, or seek, any real voice in judicial selection, so it is left to a small group of business-centered insiders.

Problems with the present judicial nomination process

This brings us to the key role of the Judicial Nominating Commission, presently chaired by Mike Parkowski.  Parkowski and his firm often represent DuPont, other corporate polluters, the Delaware Solid Waste Authority, State agencies, and big developers.  He’s often been described as one of Governor Ruth Ann Minner’s chief handlers and fund-raisers. (In an only-in-Delaware situation, Parkowski also chairs the Delaware board of The Nature Conservancy, Delaware’s most flagrantly corporate-serving “environment” organization. This is a sham role taken on to deflect criticism of the role he plays in protecting organizations which damage the environment.)

Can we expect many rulings favorable to the environment when Parkowski can influence whether the judges keep their jobs??  Clearly, it is not right that a lawyer practicing in Delaware’s courts and appearing before State agencies or appealing their rulings, should play a key role in picking the judges.

I understand that another member of Parkowski’s firm chairs the Magistrate Screening Committee, but so far information on this body has been withheld from us.

How to fix the judicial nomination process

Delaware’s judges need, of course, to be diligent, courteous, able to understand complicated arguments, write clear decisions, and so forth.  Many of them have these qualities.  But their backgrounds and values are equally or more important.  They need to come from a diversity of interests and socio-economic classes.  They need a disposition to put human welfare first.  The special interests calling for “conservative” (a misuse of the term) judges understand this very clearly and the rest of us need to get clear on it also.  So, the process for nominating and appointing judges needs to reflect the same diversity of interests and values.

The JNC is created by Executive Order of the Governor.  So it is entirely within the power of Governor Markell to reform and move Delaware towards a truly independent judiciary not controlled by or serving special interests.  Can Delaware be business friendly without being people-hostile?

A different sort of nominating commission

The Nominating Commission should probably be larger than its present membership of nine.  Perhaps fifteen.

Lawyers serving on it should be in retired or inactive status to avoid conflicts of interest.

Members should include people with a history of advocating for civil liberties, low income people, environmental protection, voting rights, and so on.  In other words, NOT just corporate-lawyer types.

Members participating in a particular appointment to a court should have no ties to any firm that still practices in that court.

The membership should change every four to six years so that no member votes on both the appointment and reappointment of any judge.  Terms should be staggered.

Appointments to the commission should come not only from the Governor but from both houses of the legislature and from citizens groups.  A commission should be both multi-partisan and as independent as possible.

If the Governor has his own nominee, that person should be vetted by the entire commission of at least 15 members.

The Commission should solicit suggestions from the public.

The role of the Bar Association should be clear, limited, and open.  If the Bar proclaims a nominee “unqualified,” and official notice is taken of this, the reasons should be stated publicly.

High-quality appointees must be considered just as important in our lower courts, handling human problems, as in our “business” courts.

Conclusions

Is Delaware going to move away from the hostile and punitive attitude it seems to have developed towards its own citizens?  Away from what I have often written of as the “plantation” mentality?   Away from control by special interests?  Away from scandal and corruption and abuse of power?  Are we going to start putting human citizens first?  Are we going to move towards prosperity and justice and democracy?  If we are, improving our judiciary is very close to being “Job 1.”

Action

Let our new governor know you are expecting something different:
Jack.markell@state.de.us, 577-3210 (Wilmington), 744-4101(Dover)

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