Difference between revisions of "Judicial Accountability Act: How Legislatures can stop judges from legislating"

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==What will be the effect of a 4-3 ruling that a law is unconstitutional?==
==What will be the effect of a 4-3 ruling that a law is unconstitutional?==
Although a 4-3 ruling would no longer have legal force, it would still have powerful political force. A ruling that a law is unconstitutional would be a public relations challenge for the legislature. The legislature would face pressure to refute the judges' claims point by point, or adjust the law voluntarily. A 4-3 ruling would not be powerless; and of course it would still be binding on the parties to the case. But an argument in defense of the legislature ignoring the challenge would be that after all, the justices themselves barely agree the law is unconstitutional.  
'''(Summary: no legal effect, but much political pressure)''' Although a 4-3 ruling would no longer have legal force, it would still have powerful political force. A ruling that a law is unconstitutional would be a public relations challenge for the legislature. The legislature would face pressure to refute the judges' claims point by point, or adjust the law voluntarily. A 4-3 ruling would not be powerless; and of course it would still be binding on the parties to the case. But an argument in defense of the legislature ignoring the challenge would be that after all, the justices themselves barely agree the law is unconstitutional.
==Would a ruling always trigger a public hearing?==
==Would a ruling always trigger a public hearing?==

Revision as of 19:11, 15 February 2020

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Summary: this bill restrains lawmaking judges in 5 ways:

1. A single district judge can't overturn a law.

2. Only 5 of the 7 justices of the Supreme Court can overturn a law.

3. The Court has to rule in 3 months if the court blocks a new law from taking effect with a Temporary Restraining Order. The Court has 3 months to rule. If the court invalidates an existing law, the invalidation doesn't take effect for one year.

4. The legislature may compel designated justices to attend a public hearing to debate the constitutionality of the law within one year of such a ruling, by passing a resolution.

5. The legislature may overturn the invalidation, leaving the last word with incredibly well informed voters (through ordinary elections of lawmakers and retention of justices). The resolution overturning the invalidation would give reasons responsive to the reasoning of the judicial ruling.

The Bill


1 An Act regarding legislative oversight of supreme court

2 decisions, and including applicability provisions.


Introduction/Legislative Findings

1 Section 1. NEW SECTION. 602.1615 Legislative findings ——

2 challenges to the validity of a statute —— exclusive jurisdiction

3 —— public hearings —— legislative oversight.

4 1. The general assembly finds and declares all of the

5 following:

6 a. The power to impeach subsumes reasonable less severe

7 remedies.

8 b. The intent of this section is to provide for a mechanism

9 in which to resolve disputes regarding the constitutionality of

10 laws between the courts and the legislature, both of which are

11 composed of constitutional scholars.

12 c. Article 5, section 4 of the Constitution of the State

13 of Iowa states that the supreme court is “a court for the

14 correction of errors at law, under such restriction as the

15 general assembly may, by law, prescribe . . .”.

16 d. Article 3, section 20 of the Constitution of the State

17 of Iowa gives the legislature the power to impeach judges for

18 “malfeasance in office”, which is generally defined to include

19 acting without authority and abusing power. The power to

20 impeach subsumes all lesser remedies.

21 e. The Constitution of the State of Iowa does not give the

22 courts of this state the power to invalidate laws enacted by

23 the legislature, to require the legislature to enact different

24 laws, or to publish rulings that have the same effect as new

25 legislation. Article 3, section 1 of the Constitution of

26 the State of Iowa states: “The powers of the government of

27 Iowa shall be divided into three separate departments —— the

28 legislative, the executive, and the judicial: and no person

29 charged with the exercise of powers properly belonging to one

30 of these departments shall exercise any function appertaining

31 to either of the others, except in cases hereinafter expressly

32 directed or permitted”.

33 f. Although the courts of Iowa have usurped those powers

34 without constitutional authority, it has been done for reasons

35 which the general assembly respects. The general assembly

1 welcomes the expertise and guidance of the courts in evaluating

2 the constitutionality of its laws. But when the reasoning of

3 rulings which function as legislation appears to be not only

4 unsound, but unconstitutional, the general assembly has the

5 constitutional duty and authority to determine that judges and

6 justices have abused their power and exceeded their authority,

7 which are grounds for impeachment under the malfeasance in

8 office clause.

9 g. A remedy short of impeachment should advance wisdom,

10 build consensus, and educate voters so that informed voters

11 may hold both judges and legislators accountable. Article 1,

12 section 2 of the Constitution of the State of Iowa states:

13 “All political power is inherent in the people. Government is

14 instituted for the protection, security, and benefit of the

15 people, and they have the right, at all times, to alter or

16 reform the same, whenever the public good may require it”.

The Meat of the Bill: the Enforcement Section

17 2. The supreme court shall have discretionary and exclusive

18 original jurisdiction over any challenge to any law. A

19 district court or the court of appeals shall not invalidate a

20 law on any grounds.

21 3. A decision of the supreme court that invalidates

22 existing law or has the effect of creating new law shall not

23 have any effect unless agreed to by five or more of the seven

24 justices, and otherwise shall not have any effect for one

25 year. The supreme court shall also have the power to suspend

26 implementation of a new law provided the supreme court produces

27 an expedited ruling within three months of the law’s enactment.

28 4. a. Within one year of the date a supreme court decision

29 is published that invalidates existing law or has the effect

30 of creating new law, the general assembly may, by resolution,

31 compel the attendance of specified justices to a public hearing

32 to discuss and debate the justification for the decision with

33 members of the general assembly. A public record of the

34 hearing shall be made.

35 b. During or after the hearing, the general assembly shall

1 determine if grounds to begin impeachment exist as to any

2 of the justices present at the hearing for acting without

3 authority or malfeasance in office.

4 c. Based on the results of a hearing commenced pursuant to

5 this subsection, a justice whose presence was required at the

6 hearing may change the justice’s vote or alter the justice’s

7 individual contribution to the decision.

8 5. A supreme court decision invalidating existing law or

9 having the effect of creating new law will not take effect if

10 two-thirds of both the senate and the house of representatives

11 approve a resolution to overturn the decision within one year

12 of the date the decision was published. The resolution must

13 specify the basis for overturning the decision, including

14 its reasoning, not to be limited by court precedent that is

15 responsive to the supreme court’s initial published decision,

16 and must be documented by expert testimony and constitutional

17 authority.

18 6. The general assembly may issue its own statement to a

19 published supreme court decision that invalidates existing law

20 or has the effect of creating new law if done within one year of

21 the date the decision was published. The statement must regard

22 the constitutionality of the invalidated existing law or the

23 newly created law.

24 Sec. 2. APPLICABILITY. This Act applies to decisions

25 published by the supreme court on or after the effective date

26 of this act.


Questions and Answers

Why are existing laws treated differently than new laws?

The difference is for the benefit of the public, so the laws governing them do not flip back and forth from being in effect. A new law – for example, the Heartbeat law – could be suspended until the suspension is overturned by the legislature. An existing law – for example our former marriage laws requiring spouses to be of the opposite sex – could not be suspended for one year, to give the legislature time to respond. No unusual back and forth.

Could courts suspend a new law between its effective date and the court ruling?

(If the court could not, the law would take effect until the ruling, then it would be suspended, but then the legislature might give it effect again.) The legal action a court takes to invalidate a law is an Injunction. The process here doesn't specify it, but would allow the normal process of allowing the courts to immediately suspend a new law with a TRO, Temporary Restraining Order, until their hearing, at which the temporary order could become permanent. In the case of an existing law, by contrast, allowing the court to immediately suspend the law, with the possibility of it going back into effect after the legislature acts, would subject the public to a law which is in effect, then suspended, then back into effect.

What will be the effect of a 4-3 ruling that a law is unconstitutional?

(Summary: no legal effect, but much political pressure) Although a 4-3 ruling would no longer have legal force, it would still have powerful political force. A ruling that a law is unconstitutional would be a public relations challenge for the legislature. The legislature would face pressure to refute the judges' claims point by point, or adjust the law voluntarily. A 4-3 ruling would not be powerless; and of course it would still be binding on the parties to the case. But an argument in defense of the legislature ignoring the challenge would be that after all, the justices themselves barely agree the law is unconstitutional.

Would a ruling always trigger a public hearing?

That decision is made independently of a decision to vote to override the court. "Within one year, the legislature MAY, by a resolution, compel the attendance of specified Iowa judges ...."

Is one year for the legislature to act too long? Too short?

One year from the court’s ruling is needed to process the ruling’s reasoning, to hold hearings which would require passage of a resolution by both chambers, and then to schedule a vote, which could be while the legislature is not in session. A year is needed.

On the other hand, requiring courts to act in 3 months is reasonable, considering this is not a brand new question before them that they have never heard of before. They have had all the years of public debate on the issue to think about the issue. Plus, courts are accustomed to ruling quickly when cases are required to be “expedited”.

Would prolife laws do any better under this system?

Good news for Democrats: no, at least not by much. Prolife laws would have a brighter future in Iowa courts, but in federal courts there would be no difference. That is, until such time as Congress adopts these reforms.

However, it might give prolife bills as much help as a “no right to abortion” state constitutional amendment would, although a different kind of help. And although there seems little concern that the Amendment might be overturned, this act would further reduce that possibility.

Shouldn’t judges be immune from popular pressure? We don’t want our rights subject to a vote!

Neither legislatures nor courts should have the last word over each other. We have seen what happens when legislatures had the last word, in the South, during the time of slavery. And we have seen what happens when courts had the last word, in 1857 and 1973; regarding slavery and abortion.

The Iowa constitution gives the last word to voters. Is that dangerous? America’s Founders talked about popular whims that could remove important protections over the weekend if the public could vote on individual issues continually. They set up 6 year terms for U.S. Senators and 4 year terms for presidents explicitly to shield our Rule of Law from whims the public might hold for only a month. Nor does this process give voters direct control over the outcome of a disputed law, but only equips them to evaluate the wisdom of their elected representatives and their judges, which is the same as our current system except this leaves voters much better informed.

The 14th Amendment expanded the power of courts to overturn laws which violate “fundamental rights”. It made slave-loving southern state legislatures accountable to courts. Unaddressed was what to do when it is courts which violate fundamental rights. This measure is an attempt to restore balance. It is interesting that the 14th Amendment actually leaves its own enforcement not to courts, but to Congress.

The “independence of the judiciary” from popular whims is well protected by lifetime tenure. This measure does not change that. It only defines a remedy for Iowans when judges rule lawlessly and unconstitutionally.

Is a 2/3 majority requirement necessary? Shouldn't a simple majority of the legislature be enough to override courts?

This may be the hardest detail to muster a quick opinion. There are strong arguments for either choice; perhaps there is even a third option: a 60% vote. As this bill proceeds, perhaps it should be expected that a consensus will form later requiring amendment of this detail. The current draft requires a 2/3 majority.

The Practical Argument:Currently, courts get away with a simple majority requirement (4-3) which faces zero accountability from anybody. This draft requires a 5-2 vote; another option is 6-1. Should the legislature face a similar hurdle? Several lawmakers believe a 2/3 requirement removes any practical hope of ever overturning a judicial invalidation of a law, because the Iowa legislature is incapable of agreeing by 2/3 that the sun is up. A 2/3 requirement would make restraint of lawmaking judges actually harder than passing a constitutional amendment!

But if we let the legislature overturn the court’s invalidation with a second simple majority, it could be objected that would be almost ridiculously easy for the legislature to gather together the same “yea” votes a second time (if an election doesn’t intervene). A 60% requirement could answer that concern.

However, that objection could also be met by pointing out that the ruling of the courts would give typically 60 pages of reasons the law should be overturned, which would put a lot of pressure on those “yea” votes to either eloquently and exhaustively justify their votes or vote “nay”. It would not be easy to secure a majority a second time under that pressure.

The public hearing option would put that 60 page ruling on a level playing field with reasoning from lawmakers. It would make both legislatures and courts accountable not only to each other, but to reason. It might even make lawmakers upset enough to reach a 2/3 agreement.

Voters, informed as has never before been possible about judges on the ballot, or about the legal skills of lawmakers, would have the last word.

The Political Argument: The public is not used to legislatures having ANY power to correct unconstitutional rulings. A 2/3 requirement would be less of a shock to tradition. Were this bill to pass into law with a 2/3 requirement, and lawmakers saw how unnecessary it was, lawmakers could ease the requirement in the future - since this does not require amending the constitution, which already grants more than this power, but requires only a law.

Amendment. Should it be decided that a simple majority of the legislature to overturn a court’s invalidation is sufficient, here is the simple change that could do it - simply strike out "two-thirds of" (or replace it with "six tenths of"):

8 A supreme court decision invalidating existing law or

9 having the effect of creating new law will not take effect if

10 two-thirds of both the senate and the house of representatives

11 approve a resolution to overturn the decision within one year

12 of the date the decision was published.

Is it practically possible to require courts to add a statement from the legislature up to a year after its ruling?

When the Supreme Court first publishes its ruling, that is not the final version that will be later given an official permanent citation in the Northwest Reporter series. (Their contact information) Unpredictable delays are caused by litigants asking for rehearings, and courts taking time to respond. Even after that option is exhausted, court staff continue proofing their decisions, a process that can take months. [Iowa Supreme Court Clerk phone number: 348-4700] Northwest Reporter doesn’t officially publish a case, and give it a permanent citation, until a state supreme court notifies them that it is ready. That is why a new case has only an Iowa citation that does not list a page number or volume number, and doesn’t get a fancy N.W.2d permanent citation until much later.

Requiring the Court to leave the publication open for a year in case the legislature chooses to submit a statement would affect only the time the Court notifies Northwest Reporter, and it may not even affect that time at all.

The farther this bill gets, the more discussions there will be about it with the Iowa Bar Association and the Court itself. If delaying final publication that long is deemed unreasonable, an amendment could easily give the legislature an earlier deadline. It might also require the legislature to notify the court of an intent to exercise that option.

Of course, this entire final sentence of this bill is not critical to legislative correction of judicial overreach. It could be conceded if necessary to save the rest of the bill. But it is an appropriate correction of the current system.

Will an expedited hearing that begins in the Supreme Court diminish the time needed by the litigants to fully present their claims?

A challenge to a new law means (and perhaps this bill could so specify, although I think it is already clearly implied) a challenge to a law that has not yet gone into effect, to keep it from going into effect (beginning with a Temporary Restraining Order (TRO) the day it would go into effect).

In such a case the state itself will normally be the defendant, and the petitioner will be a well funded group that tried to kill the law in the legislature but failed. In that situation the petitioner will already be prepared legally, their arguments well honed through interaction with lawmakers. It is hard to imagine that any less prepared petitioner would be ready with a TRO to stop a law before it goes into effect.

Iowa court rules already require appellants to outline their issues in their initial notice of appeal, which is more pressure on individual defendants to prepare that far ahead, in proportion to their means, than challengers to a new law will face, who will be fully primed for a court battle before the law passes the first chamber.

Were the petitioner an individual seeking relief only for himself and not for anyone else affected by the law, courts have many tools for giving relief to individuals short of invalidating whole laws. Extenuating circumstances, interaction with other laws affecting the individual, necessity in order to avoid serious injury (Iowa 704) for example. The applicability of laws to individuals is the jurisdiction of the judicial branch, with which the legislative branch has no intent to interfere, any more than the judicial branch should interfere with the jurisdiction of the legislative branch to establish laws of general application.

After a law has already gone into effect, then there is no requirement to expedite. In fact, the decision to challenge a law could be made by the parties to the case, or by a judge, at any point during a years-long case: in pre-trial briefs, a district judge’s ruling, or during the appeal before the Court of Appeals or the Supreme Court. With this bill the applicability of the law to the individual defendant could still be suspended, but the law itself, as applied to everyone else, would not be suspended until after the Supreme Court so rules and then only if the legislature does not block the suspension. The legislature’s year to respond would not begin with any ruling made before the Supreme Court’s supermajority ruling.

Are there any U.S. Supreme Court precedents relevant to these half dozen powers?

These proposed powers are all completely unprecedented in law, although some of them have been discussed. Probably the one never before discussed is the idea of a public hearing.

Surely the prohibition of a district judge overturning a law, limiting that power to the state Supreme Court, and requiring a supermajority of the court to overturn, is well within the power given the legislature to limit the jurisdiction of courts.

Public Hearings

How about public hearings? Is there any legal or constitutional principle that shields judges from having to explain their rulings any better than they do in their written opinions? Is there something nefarious about requiring judges to answer questions?

Federal judges answer questions about their past rulings in confirmation hearings for appointments to higher courts. If U.S. Senators can require them to answer questions about their rulings years later, why can't state legislatures require their state judges to answer questions at the time? Judges justify not answering questions about future potential cases, that they may remain free to rule in view of facts and arguments they might not see until then, but there is no reason to shield judges from explaining their past cases.

Especially since the Public Hearings envisioned in this bill are not only to clarify whether a law ruled unconstitutional actually is unconstitutional. The second purpose of these Public Hearings is to investigate whether there are grounds for impeachment. Because if the legislature determines that the ruling of unconstitutionality is utterly lacking in merit, then judges who so ruled were legislating; they were acting without authority, exercising a power of a different branch of government than their own, which is malfeasance of office, an impeachable offense.

Obviously, in any impeachment trial, the judges would be required to answer questions. These public hearings a power subsumed under the power of impeachment; they are a reasonable, less severe remedy.

Certainly the very idea of communication between lawmakers and judges on a "level playing field" is unheard of. Unprecedented. Current communication, which tradition will be slow to reconsider, is somewhat like a parent trying to reason with a child who is as inarticulate as he is stubborn.

It is a special challenge for a lawyer representing the legislature to reason with a judge who gives only the scantest clues to what is on his mind before he rules, after which it is too late to respond to his errors. Does any Constitutional or legal principle require such a breakdown of communication? Does this ritual serve any good purpose?

Once President Washington asked SCOTUS for its advisory interpretation of a treaty. See a short history here. That is a different but only slightly different issue. The answers given by our Founders why that would be wrong, for judges to give advisory opinions to lawmakers so lawmakers don't have to spend years crafting laws which judges at the last minute decide to overturn, don't take into account activist judges who leave the future of legislation, and indeed the very future of human rights, very much in doubt.

The subject of the public hearing is whether the law really was unconstitutional. Because if it wasn't, then the judges plainly acted outside their authority, which is grounds for impeachment. But beyond being grounds for impeachment, an order given that is beyond one's authority to give is legally invalid. So surely the legislature has the authority to investigate whether an order was invalid, and upon establishing that it is, to reverse its effects.

Sheltering judges from interaction doesn't make them free of bias. In every other human interaction, accountability is the best way to cleanse a hard heart of bias.

The Two-Thirds Majority

The only thing remotely relevant to this 2/3 vs. simple majority requirement in American constitutional law that I can think of is that to ratify a constitutional amendment, Congress has to pass it by 2/3 before states pass it by 3/4. But this doesn't change the constitution; it only defines how the legislature is choosing to exercise authority already given by the Iowa Constitution.

If anything, there is a constitutional principle favoring the power of legislatures over courts, with respect to Fundamental Rights. The 14th Amendment is the part of the Constitution which courts have taken to give them jurisdiction over states who trample fundamental rights. But who did the 14th Amendment authorize to enforce its provisions? Not courts! Rather, Congress, according to Section 5 of the Amendment.

Yet here are examples of not just state laws, but even state constitutional amendments, which were overturned by courts for violating the "equal protection" clause of the 14th Amendment:

Cummings v. Missouri, 71 U.S. 277 (1867) a Missouri oath to hold office designed to keep out former confederate soldiers was ruled an unconstitutional Bill of Attainder.

Hollingsworth v. Perry, 570 U.S. 693 (2013) a California same sex marriage ban.

Romer v. Evans, 517 U.S. 620 (1996) a Colorado gay rights ban.

Awad v. Ziriax, 10th Circuit, January 10, 2012 an Oklahoma ban of the use of Sharia Law in court.

Giles v. Harris, 1903, and Giles v. Teasley, 1904, courts winked at disenfranchising Blacks, but explicitly accepted jurisdiction over state constitutions violating the 14th and 15th Amendments.

The authority to enforce the requirements of the 14th Amendment, given to Congress and not courts, gives Congress also the authority to define and apply fundamental rights, and for anyone seriously in doubt, to clarify who is a human being and therefore deserves to have his fundamental rights protected.

These are philosophical as well as legal questions which merit national discussion, but while courts are sheltered from having to talk to anybody the conversation has been one sided. America needs to open this up into what Proverbs 15:22 calls a "multitude of counsellors". It does not undermine respect for the judiciary to imagine judges are able to explain their reasoning.

If Legislatures overturn court rulings, won't they exercise the authority of the judicial branch?

No. On that future day when a legislature overturns judicial rulings, the legislature's action would not apply to the parties to the case, so the "separation of powers" aspect of the ruling is untouched. There are several reasons a court may exempt a litigant from the effects of a law, without invalidating the law for everyone else. The simple difference between courts and legislatures is that legislatures pass laws which apply to everybody, while courts apply those laws in specific cases, only to the parties to the case, guided by the special facts and circumstances of the case. The power given by this bill to legislatures to overturn rulings applies only to the part of the ruling where the court stepped outside its constitutional authority to nullify a law passed for the benefit of millions of others.

The purpose of the public hearing is only for the legislature to investigate whether their law was constitutional after all, and if so, to take back their constitutional authority to pass laws by their subsequent vote.

Lawmakers take oaths to defend the Constitution too. Courts cannot rob lawmakers of their power to obey the Constitution without violating the constitution themselves.

Perhaps that is the key principle declared implicitly by this bill: judges aren't the only branch of government authorized to understand and defend the Constitution. The other branches are too. That balance needs to be restored. The conversation needed needs to be among equals.