[Shelved] Expanding Recusal of Justices

[Cretox]

Split off from this bill because it doesn't exactly cover the same area anymore.

At the moment, the only way to recuse a justice who refuses to recuse themselves despite a potential conflict of interest is for the other justices to vote to recuse them (or to sue the justice in question). This is a lacking safeguard, since all it takes is for one other justice to vote not to recuse for the vote to fail. Just as the RA has a say in the appointment of prosecutors, the RA should have a say in whether it trusts a given justice to rule in a fair and unbiased manner if such a question is raised by a petitioner in a matter before the court. This bill would allow the RA to recuse a justice by majority vote should the court's own recusal vote fail. It doesn't require such votes to be held, and while there may be concern that the RA would get bogged down in frivolous recusal votes, any citizen may currently move to recall any government official for any reason and we don't get frivolous (or really any) recall votes anyway. The speaker could also simply end debate on such motions if they do start to happen.

Comments welcome.

Clause 10 of Section 3.2 "Appointment of Hearing Officers" of the Legal Code will be amended as follows:

10. The Court must hold a vote on whether to recuse a Justice or Hearing Officer when publicly requested by the prosecution, defense, or petitioner in any matter before the Court. Should the vote fail, the Regional Assembly may recuse the Justice or Hearing Officer by majority vote.

Spoiler: Markup

10. The Court must hold a vote on whether to recuse a Justice or Hearing Officer when publicly requested by the prosecution, defense, or petitioner in any matter before the Court. Should the vote fail, the Regional Assembly may recuse the Justice or Hearing Officer by majority vote.

 

[Fregerson]

I like the idea. A problem I have is this: What is stopping the prosecution/defense/petitioner/Justice/Hearing Officer from exercising their voting rights in the recusal vote? On the other hand, if they are forced by law to not vote, will this affect the necessary quorum requirements?

 

[Cretox]

What is stopping the prosecution/defense/petitioner/Justice/Hearing Officer from exercising their voting rights in the recusal vote?

I mean, an appointee can already vote aye in their own confirmation vote and a candidate can vote for themselves in an election they're running in. Is this all that different?

 

[Zyvetskistaahn]

I don't see any issue around whether or not the parties or the Justices vote. I would assume that the Justices would usually abstain, but, ultimately, if the vote is narrow enough that it will be decided by the votes of the parties or the Justices, then I am not sure it is one where the Assembly should be overturning the Court's decision on the issue. My sense is this should really only be in cases of genuine misuse of power by the Court, in which case I would hope that the vote will be decisive enough.

Also, while I have not put too much thought into this point, I think there may be a constitutional issue with requiring the parties or the Justices not to vote (or to abstain), in that it could run afoul of article 10 of the Bill of Rights and questions about equal treatment and protection of the right to vote.

 

[Cretox]

I don't see any issue around whether or not the parties or the Justices vote. I would assume that the Justices would usually abstain, but, ultimately, if the vote is narrow enough that it will be decided by the votes of the parties or the Justices, then I am not sure it is one where the Assembly should be overturning the Court's decision on the issue. My sense is this should really only be in cases of genuine misuse of power by the Court, in which case I would hope that the vote will be decisive enough.

Agreed.

Also, while I have not put too much thought into this point, I think there may be a constitutional issue with requiring the parties or the Justices not to vote (or to abstain), in that it could run afoul of article 10 of the Bill of Rights and questions about equal treatment and protection of the right to vote.

I know I'm getting off topic, but if the court restricting the right to vote under certain conditions is sound, shouldn't the legal code restricting it under certain conditions be sound too? I'm not planning to add such a provision, just to be clear.

 

[Zyvetskistaahn]

I know I'm getting off topic, but if the court restricting the right to vote under certain conditions is sound, shouldn't the legal code restricting it under certain conditions be sound too? I'm not planning to add such a provision, just to be clear.

I agree that it could perhaps be restricted, but it doesn’t necessarily follow that just because one type of restriction (as punishment for a crime) on a right is justified that other restrictions on the same right are justified. The justification here would be due to interest in the outcome but that is a relatively weak justification by comparison, particularly given how widely it could be applied to other votes (elections and confirmations as you note) and the lack of equivalent provision for those other votes. Perhaps the interest would be stronger in the case of the Justices themselves, but even so I think it is questionable.

 

[Pallaith]

So you don't think it's easier to just subject a justice who fails to recuse in a serious conflict of interest to a recall vote, or vote them out next time?

 

[Cretox]

So you don't think it's easier to just subject a justice who fails to recuse in a serious conflict of interest to a recall vote, or vote them out next time?

I think that a recall is a nuclear option that only gets trotted out in response to particularly egregious dereliction of duty. I also think that waiting for the next election does nothing to ensure that a specific given case is handled in an impartial manner. A justice may fail to recuse themselves in a way that doesn't necessarily warrant a recall, but which the RA finds unconvincing nonetheless. There should be some way for the RA to ensure justice is properly served in these situations without having to wait for the next election or build a convincing case for a recall (which can require multiple examples of a justice failing to recuse themselves- which likewise does nothing to protect the integrity of specific cases). A recusal is, after all, effectively a limited recall for a specific matter before the court. If the RA needs to step in and recuse a justice multiple times, then that alone would probably be enough concrete evidence to successfully recall that justice.

 

[Comfed]

Are you sure that this wouldn't just turn into another nuclear option?

 

[Cretox]

Are you sure that this wouldn't just turn into another nuclear option?

I don't think it would any more than recusals currently are, considering the lower threshold and specific circumstances in which it would (or can) be used.

 

[Great Bights Mum]

First, I haven't seen any problems with justices not recusing themselves when appropriate. How many times has the court had to have a recusal vote? If the answer is once or twice, then this is a solution in search of a problem.

Second, with this bill, I wonder if it could be used as an avoidance tactic. Wouldn't it be possible for a defendant to tie up the court by having the RA debate the merits of the recusal request, then vote on it? If that prevails, they could do it again. Then we'd need a THO. Let's debate that and have another vote too. I think it could delay the trial unnecessarily. By then, the prosecutor may have wandered off, elections may have rolled around again, or, most importantly, the situation which precipitated charges being brought in the first place will have cooled down.

Finally, the RA has elected fine, upstanding citizens to serve on the court. I trust our decision-making on this. I trust the justices have the integrity to avoid conflicts of interest.

 

[Zyvetskistaahn]

First, I haven't seen any problems with justices not recusing themselves when appropriate. How many times has the court had to have a recusal vote? If the answer is once or twice, then this is a solution in search of a problem.

I am not actually sure if the Court has ever had a recusal vote. Justices have generally been good at identifying conflicts and recusing voluntary. The one time I can think of when that didn’t happen was a time when Funk didn’t in an election related review but there wasn’t a vote by the other Justices because they had already recused, so a request for review had to be brought over it.

 

[Great Bights Mum]

My, you have a long memory! And when was Funk justice? Possibly well before we had the depth of talent we currently enjoy. This is my point, the justices really do have TNPs best interests at heart, and they take their oaths seriously, and strive to uphold the fairness of the court.