March 15, 2012 Letters

March 15, 2012 Letters

first_imgNorman L. Corbin Orlando _____________________ I was dismayed by the article in the February 15 News with regard to judicial retention. The article does not bother to relay the perspective of the side that sought removal of the three Iowa justices, except to impugn their motives, and merely provides a platform for former Justice Baker’s unceasing jeremiad against the people of his own state.It was a completely one-sided article that makes a mockery of impartiality and journalistic standards. A few facts are in order. There are approximately two million registered voters in Iowa. In each of the three retention elections at issue, nearly 900,000 voters cast their ballots, and each of those justices only garnered support of 46 percent of voters. Judicial retention elections were approved by Iowa voters in 1962 as a constitutional reform that replaced selecting judges by popular vote. It was a compromise reform intended to marry (pun intended) improved judicial appointments with continuing public oversight.More tailored public oversight does not mean there is no public oversight. Apparently, the constitutionally expressed will of Iowans to retain some public oversight of judicial appointees is unworthy of deference and offends Justice Baker. If he and other opponents of judicial retention don’t like the process, which intentionally retained public oversight, then amend the Iowa Constitution.He will find it a more cumbersome process than convincing a few colleagues to vote to overthrow established cultural and statutory precedent on a whim.James W. Lovely Lakeland ____________________ I found the article “Special interests target retention elections” very troubling. The story provides minimal information on the underlying issue that led to Justice Baker’s removal.All of Justice Baker’s assertions are accepted uncritically, including his representations about the beliefs, intentions, and motives of his opposition. But even more troubling are the quotes attributed to Justice Baker. If Justice Baker actually said: “The people who targeted us do not believe in the rule of law or even that the constitution is the supreme law of the land,” then I think the Iowa voters probably got it right when they voted not to retain him.The people opposed to Justice Baker didn’t arrive at the courthouse steps with pitchforks and torches. They exercised their right to vote. If Justice Baker really fears “politicization of the process,” then maybe he shouldn’t be making disparaging statements about the motives and intentions of people who disagree with him.I suspect that there may be another side to this story. There are organizations, some of them national organizations, that support the ruling in Varnum, and they raise money from all over the country and use that money in local and state elections to promote their causes. Is it possible that some of those organizations spent money to support Justice Baker’s retention? Maybe the voters of Iowa heard from both sides and maybe the people who opposed Justice Baker had a rational and compelling basis for their opposition. Unfortunately, the article didn’t ask any critical questions of Justice Baker and presented only a caricature of the people who opposed retention.The Bar should avoid involvement in retention elections. We don’t need to be “educated.” We don’t need statements from the Bar or the judiciary encouraging or discouraging retention elections. And we don’t need a PR campaign. Members of the Bar and judiciary have no corner on wisdom.Jerome Hurtak North Miami____________________Former Iowa Supreme Court Justice David L. Baker’s portrait of his and two other Iowa Supreme Court justices’ ouster in 2010 is nothing more than that of an extremely sore loser now reaping speaking fees and/or costs from state bars across this country in an attempt to cry wolf. The only thing remotely truthful in former Justice Baker’s remarks before the Florida Supreme Court Historical Society’s annual dinner in Tallahassee in January was the voting citizenry of Iowa threw him and his fellow jurists off the bench.In this great country, which as a veteran I defended, we have three distinct branches of government with checks and balances to restrain nonconstitutional and nondemocratic power grabs, but by far the greatest of those checks and balances is the voting booth. Characterizing these justices’ defeat as “a perfect storm, a freak occurrence not likely to happen again,” as a preface to statements that such campaigns to remove judges “will resonate across the country as special interests target judges for decisions they just don’t like” and “the opponents of the judiciary feel empowered now” is nothing more than cannon fodder for ending the oversight of misinformed and ignorant voters, and I, for one, am against my Bar and our state’s Supreme Court getting any more involved in this fracas than to continue stripping away the obstacles that prevent informed voter choices just as in the legislative and executive branches of our government.Former Justice Baker and his two ousted colleages are no longer on the bench because voters decided they weren’t doing their jobs responsibly.To take these justices’ ouster as an attack on the judiciary is just plain wrong; it was and will continue to be by a more informed voter an act of holding each and every judicial office-holder accountable and responsible for what they do and who they are. Well-financed campaigns alone do not guarantee job security, and those among us who preach otherwise sorely underestimate the voting citizenry of this great nation.J.D. Hadsall St. Charles, Iowa Of Cuba and Foreclosures In the February 15 News, it was reported that “special interests target retention elections.” This was lamented by Justice David L. Baker, recently ousted from the Iowa Supreme Court, because “special interests target judges for decisions they just don’t like.” He stated further: “They were there to send a warning shot over the bow of every judge in the country that if you vote contrary to us, we are coming after you.”Forgive me if I am not as dismayed as Justice Baker. “Politics” very frequently has played a role in selection of judges. Even at the federal level, the president usually appoints people from his own party or believed to be of a similar mindset to himself. Is that a coincidence? Also, the Senate certainly considers policies or politics in its “advise and consent” role. Remember Judge Bork?Could the uproar be over the particular “policy” based on which “special interests” targeted the justices in the Iowa instance? According to the article, “troubles began” when the court issued a decision “striking the language from Iowa Code §595.2 limiting civil marriage to a man and a woman.” Baker says, “These people do not want the rule of law; they want majority rule — as they view it — on everything.” Perhaps I misunderstood the import of, “We, the People,” which begins our Constitution of the United States.It strains credulity to argue that judges are “above the fray” when it comes to “public policy” because they rely on the “Constitution.” As it happens, justices and judges have “interpreted” the Constitution in various and sundry ways over the course of our some 235 years as a nation. Courts have even reversed themselves from time-to-time when “new blood” has arrived. To argue that predilections and mindsets have nothing to do with these various interpretations is naïve.Is it the public opposition to “gay marriage” in particular which is unsupportable as a constitutional matter, thereby in that instance relegating those who oppose same to the status of “ruffians” who want no part of “the rule of law,” as Justice Baker seems to indicate? I suggest not.First, as it turns out, some judges in some states which have considered that issue have found such laws as that in Iowa to be constitutional. Are they mere ruffians too?Second, I don’t believe I noticed any “right to marriage” in the Constitution. That is something which traditionally has been provided either by states or churches. With respect to states, the constitutional question, absent some fundamental constitutional right (which isn’t there), the question is a rational basis for the distinction. Could it be that some states believe that children may be best nurtured by having a mother and a father, rather than two fathers or two mothers, and have restricted marriages to the former as a consequence? Are we supposed to elevate Justice Baker’s view on that subject over that of, “We, the People”?Thomas F. Harkins, Jr. Fort Worth, Texas ______________________Your article on former Justice Baker roused me to read the Varnum case. As I know nothing of Iowa politics, I accept arguendo the premise that the decision was the motivation behind the failure of the former justice to achieve merit retention.In that decision the court wrote “Our responsibility, however, is to protect constitutional rights of individuals from legislative enactments that have denied those rights, even when the rights have not yet been broadly accepted, were at one time unimagined, or challenge a deeply ingrained practice or law viewed to be impervious to the passage of time.” 763 NW. 2d at 876 (emphasis supplied). As this appears a foundation of the opinion, I wonder what it can possibly mean. It implies that the justices considered it their obligation to declare rights which did not exist before the pronouncement. If a right had not been at one time imagined — the court has the obligation to declare its existence and enforce it.For the former justice to protest his loss of a retention election seems wholly inappropriate. As the court also wrote: “While the constitution is the supreme law and cannot be altered by the enactment of an ordinary statute, the power of the constitution flows from the people, and the people of Iowa retain the ultimate power to shape it over time.” Id. The constitution is alterable, not by elected representatives, but by seven appointed judiciary. How may the people express their authority if not to relieve themselves of judges who read into their constitution ideas that are admittedly never conceived of and not broadly accepted? A justice, at the least, should accept the consequences of his decisions, even if that mean his rejection by the people.The issue raised is not separation of powers, nor the supposed insulation of the judiciary from the concerns of mere mortals. The issue is whether judges are, pursuant to their oaths, to accept the constitution or draft onto it such meaning as seems good to them. The former justice takes the position that his court could create an entitlement (effectively taking the constitution from the people) and that he should be immune from recall at a scheduled election.For the former justice to dismiss the electorate’s rejection as mere “decisions they just don’t like” is condescension. His only job was to apply the constitution. Most jobs have repercussions in the event of failure. The simple solution to the former justice’s problem? Apply the constitution rather than create it. If the people wish to create a change, it is within their power to do so.While I admit some trepidation for the independence of the judiciary, perhaps the solution is the same. Reliable application of the existing law, rather than the creation of new law and pretending that it existed before. Alternatively, perhaps a fixed term of office, without prospect of retention, would suffice to keep the judiciary insulated from mere political concern.A question for the editor arises that is a bit afield from the main — does the concern about money pouring in to elections such as this apply equally in the context of the special recall elections in Wisconsin? I have seen no article in defense of the governor. Though the parallel is apparent, I suspect the position asserted would be inapposite.I do not presume to the former justice what the law of Iowa is or should be. Neither have I stated a position as to the substance of the case. My call is for realism — let the courts not pretend to find words in our foundational documents that are not there, nor impose ideas that were not considered. As the court said, the constitution belongs to the people.Terrence L. Lavy Ft. Myers_____________________It was with some interest and some dismay that I read the article about former Iowa Supreme Court Justice David L. Baker. As an Iowa and Florida lawyer, I would suggest that both sides of this issue be represented rather than the “cry me a river” episode of Justice Baker.While there was a concerted effort to vote Justice Baker out of his position, my response is, “So what?” It took quite a few voters to unseat Justice Baker and not by a 5-4 decision.Whether one agrees with the concept of having a justice stand for re-election to the position they hold or not is still the law, not unlike a vote of a nine-member panel to reverse the will of the people of Iowa.Justices are not untouchable. So do some investigative work before assuming that whatever a justice may say is the full dispositive truth because, like any contested issue, there just may be another side to the story. March 15, 2012 Letters LettersMerit Retention March 15, 2012 Letters William Hodes Lady LakeDamage Caps I read the letter from Richard J. Wiley in the February 1 News, after having just read on page 1 of that same issue about the hundreds of thousands of backlogged foreclosures. Poor Mr. Wiley. A 70-year-old man who thought he had a right to private property, simply because he worked hard all his life to build a portfolio of investments to assist him to live his remaining years enjoying the fruits of his labor. Don’t worry, Rick, help is on the way.All you needed to do to make you feel better was to turn to the upper right hand corner of page 17 of the February 1 issue. Apparently, three sections of the ABA are sending delegations to Cuba to “learn about the legal justice system in Cuba.” I am certain they will come back with some really keen ideas about how to ameliorate the foreclosure problem here in the USA.Compare the following quotes: “If history could teach us anything, it would be that private property is inextricably linked with civilization.” ~ Ludwig von Mises ; and, “As man is said to have a right to his property, he may equally be said to have a property in his rights” ~ James Madison, with, “I find capitalism repugnant. It is filthy, it is gross, it is alienating. . . because it causes war, hypocrisy, and competition.” ~ Fidel Castro. When the ABA delegations come back from their excursions, let’s ask for a report. No, not about the child prostitutes, or the countless prisoners of conscience, or even about how much of your money (not mine, I left that organization long ago) they spent on their fact-finding mission. Let’s ask about how they deal with foreclosures in the land “ donde crece la palma. ” I bet there’s no backlog.Mr. Wiley, the people who are causing the backlog here mean well, I’m sure. If a few 70-year-olds get in the way, that’s the price to pay for being “good” and “fair.” Egg shells, omelets, and all that. And when your investments are gone to hell, there’s always Social Security and Medicare. Always. You hear?Raul A. Cuervo Falls Church, VA__________________I read with some interest the article in the February 15 News about HB 213.The housing bubble was a result of failed government policy, but the backlog of foreclosures results from a lack of emphasis by the bench and Bar on stringent adherence to the Rules of Court and Rules of Professional Conduct.If judges cannot or will not enforce discipline in their courts using the Rules of Court and their inherent contempt power, and if the Bar will not punish attorneys for putting on false evidence, then adding another layer of legislation on top of this steaming pile will do nothing. Giving judges the power to weigh evidence at summary judgment offends due process and constitutional protections of the right to a trial.Instead, the Supreme Court should direct judges who find robo-filed documents to assess sanctions against offending plaintiffs and to refer offending counsel for discipline by the Bar.John Charles Heekin Port CharlotteCourt Funding During the 2010 legislative session, the chief justice of the Supreme Court was forced to roam the halls of the Florida Legislature and beg for a loan — not once, but twice.The first time, he received a $54 million loan to prevent Florida courts from shutting their doors. However, this wasn’t enough. The chief justice had to go back to the Legislature a second time and ask for an additional $45.6 million loan to cover the projected shortfall in the state’s courts revenue trust fund.Due to the revenue shortfalls and decline in the number of foreclosure filings, the Florida court system has an outstanding loan obligation of $99.6 million.This is our court system. The chief justice should not have to beg another co-equal branch of government to keep Florida’s judicial system open for business.The judicial branch is the division of government that works directly with our constituents on a day-to-day basis to ensure that state laws are executed in a fair and just manner for our constituents. Yet, the judicial branch only obtains 0.6 percent of the state’s operating budget.This fall, I joined forces with Palm Beach County Chief Judge Peter Blanc, Florida Bar President Scott Hawkins, and Sen. Ellyn Bogdanoff to meet with local judges and lawyers of the 15th Circuit to discuss the importance of court funding. I led the discussions in five separate conferences to address the South Palm Beach County Bar, the Palm Beach County Bar, the North Palm Beach County Bar, the Hispanic Bar Association, and the Commercial Litigators and Economic Council.The state has provided a new recommendation for court funding. The new funding recommendation would shift the court’s budget from the current unstable foreclosure filing fee funding source to a recurring general revenue funding source. I agree with this new recommendation, and I have high hopes that this new funding mechanism will stabilize the court’s budget. We cannot have a happy group of constituents without a healthy, well-funded court system.Sen. Maria Sachs Delray BeachMajor General Stanley In a continuing discussion of the diminishing number of jury trials, in the February 1 News, reader Charles Tiffany likened himself to the Modern Major General of HMS Pinafore.   Shame, sir, shame. The Major General is an endearing character from The Pirates of Penzance, and one accomplishment he lists in his famous patter song about his encyclopedic knowledge is that he can “Whistle All the Airs from that Infernal Nonsense Pinafore!” On February 9, Florida’s Supreme Court heard oral argument in McCall v. United States of America on the hotly debated issue of limitations (caps) on the amount of money (damages) that can be awarded in Florida medical malpractice cases. The case arose from a woman who had just given birth to her child at a military hospital. Brought in federal court, the judge awarded damages, finding that the death resulted from medical malpractice. But because Florida’s Legislature passed a law in 2003 capping damages in medical malpractice cases as part of a “tort reform” agenda, the judge reduced the award by $1 million.The McCall family argued that the Legislature disregarded the Florida Constitution by capping noneconomic damages in medical malpractice cases. The case made it to Florida’s Supreme Court. During the hearing, the Supreme Court justices seemed not to understand some of the arguments, including that the cap violates the equal protection clause of the Florida Constitution.The current medical malpractice damages cap is an aggregate cap and must be shared by all survivors. This discriminates against family members of large families. In fact, Florida’s Supreme Court already found this type of cap unconstitutional in another medical malpractice case in 2000. The court determined it would be an equal protection violation.Additionally, the current cap irrationally segregates wrongful death survivors from less-harmed victims of medical malpractice, meaning that the less-harmed victims get full compensation, while those who have lost a mother, spouse, or child will receive less than full recovery. The cap also irrationally treats medical malpractice death victims differently from all other wrongful death victims. A mother who dies in a car accident gets better protection than one who dies due to medical neglect.Another argument is that the cap infringes on the constitutional right to access to courts. Limiting noneconomic damages in catastrophic cases limits the amount of potential recovery. Therefore, it limits the money available to pay a contingency fee lawyer, who is the only type of lawyer most medical malpractice plaintiffs can afford. Most medical malpractice cases, incredibly expensive and risky to begin with, become less and less appealing to most lawyers. This is the tort reformers’ plan.Furthermore, caps are no solution for frivolous lawsuits. Frivolous cases are worthless and a waste of time. Catastrophic injury cases are the target of damage caps.The Legislature had no right to decide, in 2003, what Ms. McCall’s death is worth years before it happened. A federal judge is eminently more qualified to assess the damages. So is a jury. Our constitution should protect the judicial system from the overbearing, politically charged Legislature.Damage caps are not the reason for stability in the medical malpractice premium markets. Insurance companies propagate the myths of runaway juries, frivolous lawsuits, and greedy trial lawyers as the causes of rate increases. Then, they benefit from legislation that does nothing but enhance insurance profits. When will we learn?Stuart N. Ratzan Miamilast_img

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