THE ALABAMA CONSTITUTION is strange. It is too long, like most state constitutions, but what is unusual is that since 1901 it has accumulated 742 amendments. That's right--742. They include "Amendment 739: Promotion of Economic and Industrial Development in Tallapoosa County" and "Amendment 740: Polling Places in Tuscaloosa County". The state has a problem. Folding all the amendments into the main body has been considered as a solution, but there must be something fundamentally wrong.
I came across this because Judge Moore has been suspended (with pay) pending resolution of ethics charges against him related to his defiance of a federal judge's order to take down the 10 Commandments from his courtroom (see the August 22 posting below). How can a supreme court justice be removed from deciding cases without impeachment? Well, the Alabama Constitution has a way, in Article 6, sections 17 to 19, as amended a few hundred amendments ago. There is a nine-member "Judicial Inquiry Commission" which can bring complaints to a nine-member "Court of the Judiciary". While a complaint is pending, the judge cannot sit on cases. So five members of the Commission take a judge out of action temporarily at their whim, with no appeal. They could keep bringing new complaints, and keep him out permanently.
Who appoints the Commission? The Constitution says this changes in 2005, so I'll just give the current scheme. The Supreme Court picks one judge, the Circuit Judges' Association picks two judges, the Governor picks three non-lawyers subject to Senate approval, the Lieutenant Governor picks one judge, and the state bar association picks two lawyers. (The Court of the Judiciary is picked in the same way, and the Constitution does not prohibit having the membership be exactly the same as the Commission's). So no one on the Commission is elected by the voters, but two are selected by a private organization, and the other seven are appointed by elected officials.
The Court of the Judiciary can remove a judge from office, but its decision can be
appealed to the Alabama Supreme Court on grounds of either law or fact. The law about
what is grounds for removal is unclear to me:
The court shall have authority, after notice and public hearing (1) to remove from
office, suspend without pay, or censure a judge, or apply such other sanction as may be
prescribed by law, for violation of a Canon of Judicial Ethics, misconduct in office,
failure to perform his or her duties, or (2) to suspend with or without pay, or to
retire a judge who is physically or mentally unable to perform his or her duties.
Does this mean the Alabama legislature specifies the grounds for removal? Or does
"prescribed by law" mean "prescribed by the Alabama Supreme Court"? At any rate, the
ultimate effect is that if 5 members of the Alabama Supreme Court agree, a judge can be
removed for any reason without further appeal.
Contrast this with Alabama's impeachment procedure. First,
No proceeding for impeachment under Article VII, Section 173, may proceed or be
initiated against a judge while the same charge or subject matter is under consideration
by the Judicial Inquiry Commission or the Court of the Judiciary. A finding of lack of
probable cause or a termination of proceeding without a finding of wrongdoing by either
the Judicial Inquiry Commission or the Court of the Judiciary shall constitute a
complete defense to the proceedings of impeachment under Article VII, Section 173, and
shall bar all further proceedings of impeachment as to the same charge or subject.
Thus, either the Commission or the Court can block impeachment simply by bottling up
the matter and refusing to act on it, or by ruling in favor of the judge. But wait-- the
next sentence says that even if the Court finds the Judge guilty (and, say, censures
him), the judge can't be impeached:
No justice or judge who has been tried before the Court of the Judiciary shall be
subject to impeachment on the same charge or subject matter. matter.
There follows a less surprising obstacle to impeachment-- the need for a 2/3 majority in
the legislature-- but more stringent than in the U.S. Constitution, since a 2/3 majority
is needed in both the House and the Senate, not just the Senate:
No article of impeachment shall be passed upon less than two- thirds majority of the
House of Representatives and no conviction of impeachment shall be had upon less than
two-thirds majority of the Senate under this section.
But, finally,
Dissatisfaction with the ruling of a judge or justice shall not be a ground upon which
impeachment under this section may proceed.
This institutionalizes the view of the law as what judges say it is that I criticize in
my August 22 posting. It says that if an Alabama judge declares himself King of Alabama,
or exempts judges from the laws against embezzlement, that is not grounds for
impeachment.
Making impeachment difficult is not the main problem in Alabama. That is because judges are elected, for six-year terms, which limits the harm a runaway judge can do (though six years is still a long time to have him as King of Alabama). But I am shocked by how easy it is to expel a judge from his courtroom. If the Governor (3 members) and the Alabama Bar Association (2 members) don't like a judge, they can dump him. Or, if the majority of his fellow judges (3 members) plus the Alabama Bar Association (2 members) don't like a judge, they can dump him-- and even get him officially removed from office, since then they'll have the Alabama Supreme Court's concurrence.
[ http://php.indiana.edu/~erasmuse/w/03.08.23a.htm ]
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