"Have we not, like Esau, sold our precious birthright, equality and freedom for a mess of pottage, a cheap, easy way to be perpetuated in office?" — Justice Allison Humphreys
I do not know anything about Justice Humphreys except that he was a prophet who was not honored in his own time. When the state Supreme Court ruled in 1974 that the Legislature had the power to change the law to allow justices to be appointed rather than be elected by the people, and that a retention election was constitutional, he wrote the lone dissent.
He noted that the plain language of the constitution required a vote of the people, but went further to warn the court that it was giving up its sovereign right to be a co-equal branch of state government with the Legislature and the governor.
"The Constitution ... declares that no person or persons belonging to one of these departments (judicial, legislative, gubernatorial) shall exercise any of the powers belonging to either of the others, except as permitted by the Constitution ...
"As long as each of these branches of government was answerable alone to the people it could maintain its independence and thus continue inviolate and in perpetuity the grand constitutional scheme. But now (a) deadly serious question arises..."
If, the justice asks, the court has ruled that one of the branches of government can be removed from a vote of the people and substituted with an appointment, what prevents the Legislature from doing it elsewhere? Under the reasoning that the Legislature can pass a law to appoint judges and have a retention election, nothing prevents them from doing the same for other offices. Like district attorney. Though it would be political suicide, the legislators could pass a law appointing themselves to their office and retain that office unless recalled in a retention election.
But the argument that resonates down through the decades is that the judicial branch of government surrendered its co-equal status, ensured by being selected by the voters, and has instead subordinated itself to the Legislature. We have seen the Legislature take over appointing the Judicial Evaluation Committee, which decides if judges are qualified to serve. We are seeing Senate hearings called to examine the way judges are disciplined. There is a constitutional amendment on the ballot in November which enshrines in the constitution that the judges will be appointed. And they will be vetted and must be approved by the Legislature.
How do you like your mess of pottage now, gentlemen and ladies?
The retention election in August is likely to get ugly, with war chests on both sides. It should be clear to the state bar and the judicial officers that the days of quietly being retained and ignored by the voters are over. I don't think the coming retention election battle is an exception. From now on it will be the rule.
If the amendment passes in November, the Supreme Court will have further surrendered its co-equal status. When the court ruled that the Legislature could monkey with their selection and term of office, it was a just a matter of time before its complete subjugation.
The prescient Justice Humphreys again: "A bill can be introduced next session, or the session after that, ad infinitum so that Supreme Court Judges ... can be kept in attendance by the Legislature, hat in hand, whenever it suits the purpose of some disgruntled representative to snap the Court's attention with a bill to change the manner of their election. If this is not subordination, nothing is. If this is not more political than election by the people, nothing is."
The retention election in August should be a wake-up call for the state bar and the judicial system. If you think this election is political, wait until your colleagues are up before the Senate Judiciary Committee trying to get confirmed. You need to reverse position and defeat the constitutional amendment in November and support giving the people the right to vote once again.
The status of the state judiciary as a co-equal branch of government is once again at stake. Don't sell your birthright again.
(My thanks to the judge who sent me a copy of Justice Humphreys' dissent.)