Judicial independence challenged

Three challenges face P. Thomas Thornbrugh as presiding judge of the Tulsa County 14th Judicial District Court — and he isn’t exactly certain how to handle it.
Challenge number one is the financial straits being experienced at by government and citizens alike.
Challenge number two is the general philosophical assault on the judiciary.
Challenge number three is the threat to the independence of the judiciary based on the political thought of the day.
What is at stake are the freedoms for everyone that have been enjoyed in this country for so long, he said.
The founding fathers of this country in the Federalist Papers envisioned that all branches of government would be coequal, he said. They reasoned that combined they would provide a check and balance system that would prevent one branch from becoming too powerful.
Loosely paraphrasing Alexander Hamilton, the first U.S. Secretary of the Treasury who wrote about half of the Federalist Papers, Thornbrugh said the legislative branch is the most powerful because they make the laws and handles the purse. The executive branch is next because it wields the sword.
The judicial branch, the least powerful of the three, can only offer judgment on whether or not the other two branches have followed the U.S. Constitution in making decisions.
‘‘We are that trump card as judges,’’ he said. ‘‘But it is up to the executive branch to enforce those legal rulings.’’
Legislatures have an obligation to fund the courts, Thornbrugh said. Yet, that is the same body of government that easily hampers the legal system.
For example, the Oklahoma Judicial Compensation Commission in 2008 conducted a study that called for raising the judicial salaries.
Rather than approve the funds, the legislature told the courts to come up with the money through fines and court costs.
Fortunately that year the Supreme Court came up with the money to pay those salaries.
But that has come to the end of the string in 2009 and it is unknown what 2010 will bring.
Courts already have had to deal with a 5 percent funding cut and word has come down that another 10 percent cut is possible.
It was necessary to cut part time bailiffs and stop publishing dockets. If another 10 percent is ordered, it will mean people.
People costs make up the bulk of the district court budgets, he said. Under the law, judicial salaries cannot be cut. That prevents legislators who get mad at judges from chopping their salary in an effort to get rid of an individual.
Customer service — jury trials — could suffer if the number is reduced from 29 to 26 trials annually, Thornbrugh said. That type of reduction means it would take longer for civil cases to be heard. It is expensive to call a jury when the per diem costs of paying mileage, parking and a stipend to serve are factored in.
It will take longer to bring people charged with crimes to trial who are not held in jail because those who are incarcerated must have their day in court. Their cases must be resolved so they can either be sent to prison or set free.
Lawmakers also have hindered the courts by requiring that parental rights notice terminations be published three times, Thornbrugh said. That sounds good, but it is an unfunded mandate. The Tulsa District Court quickly ran out of money meeting that requirement and the cost is being paid — under protest — by the Court Clerk.
It is difficult to maintain judicial independence in a difficult economic atmosphere and not feel the impact somewhere in the system.
Another assault on judicial independence is a legislative proposal that no district judge be seated without the approval of the legislature.
That idea is taken directly off the federal level where judges, once approved, serve for life. The action is unnecessary in Oklahoma because judges stand for election every four years.
All Tulsa County district judges will be on the ballot in 2010.
If people don’t like a judge’s decision, they can vote him or her out of office — if they have an opponent — next November.
It would totally politicize the judges of lawmakers had approval or disapproval status, he said. Originally, legislative anger was aimed at the Workers’ Compensation Court, but it spilled over to the entire judiciary.
The most recent flare-up has been over a judicial ruling that did not follow the jury sentence, Thornbrugh said.
Paraphrasing, Thornbrugh said that Tulsa Attorney Clark Brewester perhaps summed it up best when he noted that lawmakers said judges shouldn’t follow the jury recommendation in tort cases if they felt the punishment was too harsh.
That changed on the criminal side when a judge didn’t follow the recommendation by a jury. Then they should get rid — impeach — him immediately.
Elections will take care of that, Thornbrugh said.
Yet, if a judge violates his office, there is a legal process where he can be removed from office.
Judicial independence will be challenged a third time during 2010 during elections, he said.
People want to know how a judge will vote on issues — abortion for example — without realizing these cases generally never come to a state court.
Similarly, they want to know how a judge feels about the death penalty and if any statements are made, that person may have to be disqualified of this type of case came before them.
All that judge can say is they will follow the law, Thornbrugh said.
Oklahoma law also requires judges to be non partisan, another effort to keep politics out of the judiciary, he said. Even though the judiciary is the weakest part of the three branches of government, it still serves as a check and balance to the other two branches.
Thornbrugh admits he isn’t certain at this time how he will administer the court, working with judges so they can be most effective in their jobs and maintain the respect of the people.
But, he said, it is a job that must be done.

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