Judicial Accountability Act: How Legislatures can stop judges from legislating

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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