Wednesday, December 19, 2012

Merging courts a bad idea

In the aftermath of Reconstruction, the people of Texas decided they wanted to keep the government as weak as possible so as to avoid anyone consolidating power like the Reconstruction governors had. It's why we have partisan elections for judges and why we have two high courts. The Supreme Court hears civil and juvenile appeals while the Court of Criminal Affirms Appeals only hears criminal appeals.

Oklahoma is the only other state with a bifurcated high court system - though other states have looked at the idea of dividing their high courts to deal with massive backlogs.

State Representative Richard Pena Raymond (D-Laredo) has filed a bill that would do away with the Court of Criminal Appeals and consolidate appellate authority in the Supreme Court. More than one practitioner has said it couldn't be any worse than the current arrangement. Taxpayers would probably be on board since it would reduce the size of state government.

But would it be a good idea for Texans accused of criminal activity?

In Texas most district and county courts are courts of general jurisdiction and handle both civil and criminal cases (Harris County has dedicated criminal and civil courts). The first level of appellate courts are also courts of general jurisdiction and handle both civil and criminal appeals.

But when those cases are appealed they are split between civil and criminal. The justices on the Supreme Court are all civil attorneys who either practiced with a white shoe firm or were golfing buddies with a friend of Governor Goodhair. The judges (because there is no justice in the Court of Criminal Appeals) on the CCA are mostly former prosecutors and lower-level judges who have a good deal of familiarity with criminal law (and even know that there are ten amendments in the Bill of Rights, though at least one of them is honored more in the breach than in the observance).

Most of the criticism of the CCA is directed at its presiding judge, Sharon Killer Keller who sent one man to his death apparently just because she could.

This is not the first time someone has proposed merging the two courts. The matter has appeared on the ballot as a constitutional amendment and has been put forward as a bill many times in the past. But the idea has never passed muster with the voters or with the state legislature.

Republicans wanted to merge the courts when the Democrats were in power. Democrats want to merge the courts now that the Republicans have taken over the state.

The simple fact of the matter is that there is too big a caseload for any one court to handle. Sure, there's only one high court in the United States and it hears only a few cases a year. The vast majority of cases are refused.

The only way to make a unified high court work in Texas would be to restrict the number of cases that come before it. That means even more cases will die on the vine of the Courts of Appeal. It means that more Texans will see their day in court go up in flames because, as former Supreme Court Justice James P. Wallace once said "There's only 24 hours in a day..."

I've written here before that our method of picking judges is not the best way to do it. No one outside the courthouse knows anything about the candidates other than their party affiliation. Every election cycle good judges are swept out of office simply because they chose the wrong year to have that D or R after their names.

But what's the alternative? I don't want the government appointing judges who will then stand for periodic retention elections. That's not democratic. I don't want nonpartisan elections because that will only mean more campaign money coming in from folks who have an interest in what goes on in a given courtroom. And I don't want a unified court just because 48 other states have one. Consolidating the courts would concentrate too much power into too few hands and would make it harder to have a case heard at the highest level.

I'm sure there's a better way to do this, but I'll be damned if I can figure it out.

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