The Least Dangerous But Most Vulnerable Branch: Judicial Independence and the Rights of Citizens Report of the 2007 Forum for State Appellate Court Judges _________________________________________________________ ~ FORUM ENDOWED BY HABUSH, HABUSH & ROTTIER, S.C. ~ ____________________________________________________________________________________________________ ______________________________________________________________________________ When quoting or reprinting any part of this report, credit should be given to the Pound Civil Justice Institute. Permission to reprint a paper should be requested in writing from: Pound Civil Justice Institute 777 Sixth Street, N.W. Washington DC 20001 [email protected] The endower, Habush, Habush & Rottier, S.C., has no control over the placement of information in or the editorial content of the Report of the 2007 Forum for State Appellate Court Judges. ©2010 Pound Civil Justice Institute Table of Contents FOREWORD ............................................................................................................................ 1 INTRODUCTION ..................................................................................................................... 3 PAPERS, ORAL REMARKS, AND DISCUSSION ................................................................ 5 “Judicial Independence in the Aftermath of Republican Party of Minnesota v. White ” Professor Penny White, University of Tennessee College of Law .....................................5 “Rebuilding and Strengthening Support for an Independent Judiciary” Professor Sherrilyn Ifill, University of Maryland School of Law ....................................36 Oral Remarks of Professor White.........................................................................................56 Oral Remarks of Professor Ifill.............................................................................................62 Comments by panelists.........................................................................................................67 Response by Professor White ..............................................................................................75 Response by Professor Ifill ..................................................................................................77 Afternoon roundtable on judicial independence ...................................................................81 THE JUDGES’ COMMENTS .............................................................................................. 102 POINTS OF AGREEMENT .................................................................................................153 APPENDICES ....................................................................................................................... 155 THE LEAST DANGEROUS BUT MOST VULNERABLE BRANCH : JUDICIAL INDEPENDENCE AND THE RIGHTS OF CITIZENS i REPORT OF THE 2007 F ORUM FOR STATE APPELLATE COURT JUDGES ii Foreword he Pound Civil Justice Institute’s fifteenth Forum for State Appellate Court Judges was held in July 2007, in Chicago, Illinois. Like all of our past forums, it was both enjoyable and thought- T provoking. In the forum setting, judges, practicing attorneys, journalists, and legal scholars were able to consider the increasingly important issue of judicial independence and its protection of the rights of citizens. The Pound Civil Justice Institute recognizes that the state courts have the principal role in the administration of justice in the United States, and that they carry by far the heaviest of our judicial workloads. We try to support them in their work by offering our annual Forums as a venue where judges, academics, and practitioners can have a brief, pertinent dialogue in a single day. These discussions sometimes lead to consensus, but even when they do not, the exercise is always fruitful. Our attendees always bring with them different points of view, and we make additional efforts to include panelists with outlooks that differ from those of most of the Institute’s Fellows. That diversity of viewpoints always emerges in our Forum Reports. Our previous fourteen Forums for State Appellate Court Judges were devoted to other cutting-edge topics such as scientific evidence, electronic discovery, rule making in the state courts, separation of powers, mandatory arbitration, federalism, the jury as fact finder, secrecy in litigation, discovery’s effect on the courts, judicial independence, the American Law Institute’s products liability Restatement, the impact of budget crises on judicial functions, and the impact on state courts of the Long Range Plan for the Federal Courts. We are proud of our Forums and are gratified by the increasing registrations we have experienced since their inception as well as by the very positive comments we have received from judges who have attended in the past. The Pound Institute is indebted to many people for the success of the 2007 Forum for State Appellate Court Judges: • to our paper presenters ―Professor Penny White, of the University of Tennessee College of Law, and Professor Sherrilyn Ifill, of the University of Maryland School of Law, who wrote the papers that started our discussions; • to our panelists ―Janet Ward Black, Bert Brandenburg, Honorable Kevin Burke, Honorable Gordon Doerfer, Dudley Oldham, Abdon Pallasch, Mary Beth Ramey, Anita Woudenberg, and Honorable James Wynn, who provided incisive comments on the issues based on a wealth of diverse experience in the law; • to the moderators of our small-group discussions ―Sharon Arkin, Kathryn Clarke, Bill Gaylord, Rich Hailey, Betty Morgan, Ellen Relkin, and Larry Tawwater, for helping us to arrive at the essence of the Forum, which is what experienced state court judges think about the issues we discussed; THE LEAST DANGEROUS BUT MOST VULNERABLE BRANCH : JUDICIAL INDEPENDENCE AND THE RIGHTS OF CITIZENS 1 • to the editors of this report ―Forum Reporter Jim Rooks, Valerie Jablow, and Kieran Hendrick, Ph.D.; • and most especially to the Pound Civil Justice Institute’s efficient and dedicated staff—the Institute’s executive director, Dr. Richard H. Marshall, program manager Marlene Cohen, and Forum registrar LaJuan Campbell ―for their diligence and professionalism during a time of transition for the Institute. It goes without saying that we appreciated the attendance of the distinguished group of judges who took time from their busy schedules so that we might all learn from each other. We hope you enjoy reviewing this report of the Forum, and that you will find it useful to you in your future consideration of matters relating to judicial independence. Gary M. Paul President Pound Civil Justice Institute 2006-07 REPORT OF THE 2007 F ORUM FOR STATE APPELLATE COURT JUDGES 2 Introduction n July 14, 2007 in Chicago, Illinois, 121 judges, representing 36 states, took part in The Pound Civil Justice Institute’s Forum for State Appellate Court Judges. The judges examined O the topic, “The Least Dangerous But Most Vulnerable Branch: Judicial Independence and the Rights of Citizens.” Their deliberations were based on original papers written for the Forum by Professor Penny J. White of the University of Tennessee College of Law (“Judicial Independence in the Aftermath of Republican Party of Minnesota v. White ”) and Professor Sherrilyn Ifill, of the University of Maryland School of Law (“Rebuilding and Strengthening Support for an Independent Judiciary”). The papers were distributed to participants in advance of the meeting, and the authors also made less formal oral presentations of their papers to the judges.”). The papers were distributed to participants in advance of the meeting, and the authors also made less formal oral presentations of their papers to the judges at the morning plenary session. The paper presentations were followed by discussion by a panel of distinguished commentators: Janet Ward Black, a plaintiff attorney from Greensboro, North Carolina; the Honorable Gordon Doerfer, an associate justice of the Massachusetts Appeals Court in Boston, Mass.; and Dudley Oldham, a defense attorney from Houston, Texas. At the afternoon plenary session, the attendees heard a roundtable discussion on judicial independence, whose participants were: Bert Brandenburg, Executive Director of the Justice at Stake Campaign in Washington, D.C.; the Honorable Kevin S. Burke, a district court judge in Minneapolis, Minnesota; Abdon Pallasch, a journalist on the Chicago, Illinois, Sun-Times ; Mary Beth Ramey, a plaintiff attorney from Indianapolis, Indiana; Anita Woudenberg, an attorney from Terre Haute, Indiana; and the Honorable James Wynn, a judge of the North Carolina Court of Appeals in Raleigh, N.C. The roundtable was moderated by Kenneth M. Suggs, vice president of the Pound Civil Justice Institute. After each plenary session, the judges separated into small groups to discuss the issues, with Fellows of the Roscoe Pound Institute serving as group moderators. The paper presenters and commentators visited the groups to share in the discussion and respond to questions. The discussions were recorded on audio tape and transcribed by court reporters. However, under ground rules set in advance of the discussions, comments by the judges were not made for attribution in the published report of the Forum. A selection of the judges' comments appears in this Report. At the concluding plenary session, the Institute’s executive director, Dr. Richard H. Marshall, summarized points of agreement among the judges, and all participants