Columns
The Harder Right
Gentle Reader do not despair. We have reached the final week of our discussion of the Internet course for Rural Court Judges. You will no doubt recall our previous sessions on the scintillating topics of Rural Court Case and Court Management. Well, the best is yet to come. I only wish we could hear from the student judges from Alaska to Maryland who attended the seven week National Judicial College course that I helped teach. Surely they were filled with the same excitement I felt as an Indiana University freshman law student during Contracts classes, perhaps much as you have been while reading Gavel Gamut the past few weeks. But, all good things must come to an end so let us summarize what we have studied.
We started with the proposition that the most essential criterion for being a Rural Court judge, or any judge, is good character. Intelligence and industry are fine attributes but ring hollow if a judge cannot choose the harder right over the easier wrong. As Socrates told his Athenian judges who tried to have it both ways, “Your job is to do justice, not make a present of it.”
You may remember the prescient observation made by Alexis de Tocqueville (1805-1859) when he wrote of his impressions of America in Democracy in America: “In America practically every political question eventually becomes a judicial one.” Of course, for those questions to be answered properly the judiciary must be fair and impartial and the public must have confidence they are; politics must not enter into a judge’s decisions.
That astute one-time Hoosier Abraham Lincoln who knew a little bit about politics and a lot about judging saw the legal profession’s role as to first be peacekeepers. To keep the peace judges must enjoy the public’s confidence in the absolute impartiality of judicial decisions. Character is the cloak that must robe a judge.
And when a judge is faced with those difficult cases where he or she is tempted to slip off the blindfold and tip the scales of justice, the only refuge a judge has is his or her character. That is what judges heard during our Internet course and what Bobby Kennedy meant when he said, “Some see things as they are and ask, why? I dream what things could be and ask, why not?”
Of course, society often rewards those of weak character and severely punishes those who choose the harder right. But that pressure is what judges must withstand. So where we start and end our course on Rural Court judges is the same proposition: judges must keep the blindfold on and their thumbs off the scale.
Why A Blindfolded Justice?
You may know that for about twenty years I have been serving on the faculty of the National Judicial College where judges teach other judges to be judges. The NJC has a fairly high-tech approach due to needing to reach judges from all across America and in many foreign countries. About six years ago the College asked me and five other faculty judges to conduct a seven-week Internet class. Each faculty member is assigned areas of concentration. Mine are Court and Case Management and Judicial Ethics. If you have followed Gavel Gamut recently you may recall the other faculty and I just completed this year’s course.
Now, this week you and I could address the vicissitudes of Hoosier football or the most salacious sexual harassment scandal. Perhaps we could delve into the mysteries of competing religious philosophies or even this week’s almost certain to occur mass shooting. But I know my audience, small though it may be, and I am confident you would prefer to reflect upon the issues I hammered into the student judges via the Internet. Let’s get right to it.
May we start with the simple question, “Why do we even have Courts?” This topic might feel a little broad and somewhat amorphous. So, why don’t we narrow our focus and discuss just one court, say the Posey Circuit Court; What is its purpose?
Posey County government has numerous elements but each part can be reasonably placed in three general categories: (1) Executive, such as the Board of County Commissioners, (2) Legislative, the County Council; and (3) the Judiciary, which consists of two courts, Superior and Circuit.
The Commissioners are hired by Posey County voters to plan and execute short, medium and long-term functions, such as roads, jails and courthouses. The County Council is charged with managing the funding of all county services. I do not mean to ignore the important duties of such officers as the Prosecuting Attorney, the Sheriff, the County Clerk, the Treasurer, Assessor, Auditor and many other public servants. However we are painting with a very broad brush here; general, three-branch democracy is our subject.
Officials who engage in executive or legislative functions are not only allowed to, they are encouraged to advocate for certain policies and positions. Should Posey County have zoning and, if so, what kind? Can Posey County afford to hire more workers, and, if so, how much should they be paid? In county government there are thousands of important and often competing interests and interest groups to be advocated for and against. These are proper functions of those two branches of Posey County government. Therefore, it is altogether fitting that politics are involved. Policies are advanced and the voters decide whose policies they prefer, Democracy at work.
But, what happens when competing interests reach a conflict or an impasse? Where do citizens look to get a problem resolved? Where is there a fair arbiter? And, most importantly, where can citizens go with confidence the arbiter is not biased for or against either side? Of course, it is the Court, HOPEFULLY. However, if the Judge is perceived to be beholding to particular groups, a political party for example, people may fear any decisions the Judge makes is based less on fact than favor.
Perhaps next week you can be regaled with an even more in depth exposition of what I taught the judges about judges who may be perceived as partisan instead of blind to the identities and attachments of the people who have to appear in front of the Judge in Court.
Judge Not
Matthew may have had a bad experience in either the Roman courts or the Jewish courts in Jerusalem. He does not refer to any such case but his emphasis on “measure for measure” suggests to me he had run into a bad judge. See Matthew, Chapter 7, verses 1-5.
He apparently thought his judge was tainted:
“Thou hypocrite, first cast out the beam in your own eye then (perhaps) you can see to cast out the mote in the eye of the one (Matthew?) you are judging.”
Of course, I do not know if Matthew had a run-in with a corrupt or ignorant or lazy judge; the Bible is silent on that point. However, after having numerous experiences with judges myself, I sense an undertow of bad judging in Matthew’s lament.
Gentle Reader, you might surmise that for years I have been contemplating what makes for a good judge and especially what makes a bad one. I have been judging, observing others judging and teaching the mysteries of judging for some time. My general conclusion is that Matthew hit the head of the nail. One should first demand a person be of good character then build a judge on that foundation.
Sure, it is helpful if your judges are of, at least, average intelligence and do not consider “work” a four letter word. However, as with any job requiring specialized knowledge there is no substitute for experience. We all learn best by doing and if we have not done it ourselves the next best teacher is someone who has done it. Naturally, we should not countenance experience being first gained on litigants in court any more than we should allow new surgeons to learn on patients.
America’s systems, there are several, of selecting our judges could all benefit from emulating countries where judges are chosen from a pool of persons who have concentrated on the profession of judging during law school then have served a lengthy apprenticeship under experienced judges. Unfortunately, in America our law schools have no option of a major in “Judging” and there are no requirements in most states to be a judge other than a law degree.
If we turned new doctors loose on patients after four years of classroom only education, Hippocrates (460 B.C. – 370 B.C.) would arise from his grave in anguish. But we do not hesitate to entrust decisions from child custody to the death penalty to people who may have never seen a court case other than on television.
The solution is not complicated. I suggest we copy the medical model and require a strong foundation of specialized law school training followed by several years of mentoring by experienced judges. Of course, none of this matters if the future judge has poor judgment, a defective character or is like the hypocrite in Matthew.
Talk Is Cheap (& Better)
Gentle Reader, you may recall last week’s column that set out the general philosophy of the Posey Circuit Court: “Talking is better than fighting”. Or, more generally, resolving conflicts instead of exacerbating them is what courts should do and the earlier the better.
Over twenty years ago my staff and I were searching for ways to ease the pain of Posey County families involved in divorce cases. At that time, my court reporter Synda Waters had the main responsibility for domestic relations matters in the Posey Circuit Court. With Synda’s help and the input of the rest of the court staff we initiated the procedure we still use today to attempt to assuage the fear, anger and frustration of couples who managed to once fall in love but for myriad reasons must now apply to the Court to untangle themselves.
The most salient feature we noted in many of these cases was people refused to talk to one another. Pride, disgust, jealousy, etc., etc., etc., prevented once loving couples from communicating with each other and, therefore, from any real chance of solving their problems.
Other sticking points were often lack of money and almost every case took too long. We decided we needed a faster, cheaper, less traumatic system of getting divorcing couples to where they could get on with their new lives even though they might still be tethered to their old ones, say for example, because of children or ongoing businesses.
We knew that statistically practically every court case resulted in some form of settlement. So we sought a procedure that would help couples settle their cases by themselves inexpensively and as close as possible to when the case was filed. Talking to one another at the beginning of the case as opposed to avoiding contact until later during an expensive and lengthy trial appeared to us to offer a better opportunity to set aside pride and discuss problems. The court-ordered Pre-pre-trial method was born.
Couples who had ceased communicating during their marriage were encouraged and facilitated by the Court to meet and attempt to resolve their conflicts. What we found was that once couples discussed their problems, often with the help of a court-appointed mediator, they could usually settle their case on their own. This simple, inexpensive procedure usually results in cases being resolved, children being better cared for, money being saved and families being able to maintain civil relationships even after the divorce.
A similar procedure is employed in most cases in the Posey Circuit Court although, of course, not every case is settled early and sometimes problems never get solved. However, I suggest Posey County is a more pleasant place for all of us to live when people with what they may have once thought were intractable problems sit down and work them out on their own.
As I have occasionally explained to warring couples who find it difficult to talk to one another and instead decide to come into Court spoiling for a fight, they can either have some stranger, me for example, decide their futures or they can do it themselves quicker, cheaper and better.
All God’s Judges Got Robes
Each fall for the past several years I have helped teach an Internet course on continuing education to judges. The National Judicial College located in Reno, Nevada organizes the six-week curriculum and selects members of the NJC faculty to teach judges from across America and even some foreign countries. Each weekly segment is led by one faculty member who is assisted by five others. My assigned area is Court Management. The course is supervised by two full-time staff members of the college who operate the complexities of the technology required by the participation of judges by computer and telephone from numerous far-flung locations. Joseph Sawyer and Danielle Harris of the NJC are in charge of the course and tasked with the “cat-herding” job of running both those judges who take the classes and we judges who teach it.
When I think about continuing education for judges I get an image of mothers from New York to Hawaii sending off their little judges dressed in black robes and equipped with new gavels embossed with the admonition: “Don’t Hit Anyone”. Before I was an attorney and had to deal with judges and before I became a judge and had to deal with other judges I never gave a thought as to how judges learn to be judges. Until reality struck me, I just assumed judges knew what they were doing the moment they began to decide the fates of those who were brought to court by law and life. Oh, if that were so!
However, since that is definitely not so, we need places to teach judges how to judge the same as we need to teach electricians not to touch a hot 220 line. The National Judicial College where judges who have already made numerous errors can teach other judges how to avoid them is one such place. The NJC states its mission as “Pursuing education | innovation | advancing justice with the support of individuals and organizations dedicated to preserving and improving the rule of law”.
In the teaching of Court Management I suggest a judge first think about what purposes she/he wants their court to accomplish; what is the desired mission? If a pioneer were going from St. Louis to Colorado he might paint a slogan (mission statement) on his wagon, “Pike’s Peak or Bust!”. He really does not plan to live on Pike’s Peak but the mantra can help him stay focused when a wagon wheel comes off in Kansas.
About thirty years ago members of my staff gave a great deal of thought to our purposes as a court. We were not unhappy with the court’s direction back then but we wondered if there were better ways to manage the Posey Circuit Court. So my long-time Court Reporter, Katrina Mann, my Chief Probation Officer, Rodney Fetcher, another long-time Court Reporter, Kristie Hoffman, another long-time Probation Officer, Mark Funkhouser, my then Court Administrator, Sam Blankenship, and I brainstormed for weeks about what our goals should be and how we could accomplish them.
Short-term, mid-range and long-term elements of planning, strategy, operation, record keeping and innovation were considered. We sought and received important input from the attorneys and other office holders. What we concluded we wanted the Posey Circuit Court to do was to help make Posey County, Indiana a better place to live by helping to resolve instead of exacerbating problems between and among our citizens who needed the court’s services.
We slowly and incrementally instituted a system of resolving conflicts in which the most important actors are the people who are in conflict; say a divorcing couple with children. Our Mission Statement guides us but it is only a guide, not an immutable law. For now I will set forth the Mission Statement then in future columns discuss the “Devil in the Details” of how we actually strive to attain our goals.
Mission Statement of the Posey Circuit Court
The mission of the Posey Circuit Court is to help create a community in which individuals, families, and entities are encouraged and facilitated to resolve legal problems among themselves and to provide a forum in which legal issues that are not privately disposed of are fairly and efficiently decided according to applicable law in an atmosphere of mutual respect and positive innovation.
Over the years there has been a great deal of tweaking of our approach as new staff members have supported the main goals of conflict resolution and helping Posey County citizens repair their relationships. You are already aware this is a work in progress. Perhaps next week we can begin to flesh out the bones of our theory.
A School For Judges
No matter what kind of job we have we had to learn how to do it. My first job, at age ten, was mowing our neighbor’s yard. I learned it from my older brother who taught me by putting me behind a mechanical push mower in the heat of an Oklahoma summer. At first the yard looked about as rough as I was treated. However, by sweat and repetition I was eventually able to make our neighbor’s yard look passable and collect my share of the one dollar we made.
On the job training is a time-honored method of teaching one to do a job. It is probably not the best system for learning such jobs as judging. You would not want to seek justice from a judge whose only prior training to be a judge was mowing yards.
Besides OJT, we have school classrooms where we study everything from Shop to Algebra. Such general education might be of some use if a judge’s first case happened to involve a lawsuit over a poorly crafted footstool but otherwise not so much.
Then we might send our future judges to Law Schools where general principles of law and critical analyses are droned into their heads. But such amorphous concepts will not mean much to you if your first day in court is also the judge’s.
So, Jim, I hear you asking, how do we avoid having judges whose only preparation for sending their fellow human beings to jail or taking their children away is mowing yards, sleeping through Algebra or listening to law professors? Here is how.
We actually require our judges to continuously attend classes in judging and, fortunately, these classes are usually taught by experienced judges who have already made the mistakes they try to help new judges avoid. One of those judge schools is the National Judicial College in Reno, Nevada. I first attended NJC in 1986 and first served as a member of the NJC faculty more than twenty years ago.
Indiana and almost every other state have their own systems of judicial training and education. The NJC has judges from every state and many foreign countries who attend.
Over the years I have taught and helped teach judges from the U.S.A., Palestine, Ukraine, Russia and several other countries. Currently, along with fellow faculty judges from Mississippi, Colorado, Indiana, Tennessee and Maryland I have been engaged in teaching an Internet course to judges from several states. This allows the faculty judges and the student judges to remain in their courts while still being involved in continuing adult education.
In my opinion, the education new judges, and even experienced judges, receive from such a system of judges teaching judges is better than simply electing or appointing a new judge and hoping for the best.