Fair Courts E-lert: Iowa Legislators Withdraw Controversial Pay-Cut Measure

May 15, 2013
FEDERAL JUDICIARY

D.C. Circuit Vacancies Thwart Administration’s Initiatives
Garrett Epps writes for The Atlantic, “Senate Republicans have succeeded in preventing President Obama from filling any of the four seats now open on [the Court of Appeals for the D.C. Circuit]. As a result, conservative judges on the court have been able to block a number of the administration’s initiatives. At this point, the D.C. Circuit ought to be called the Filibuster of Appeals.” The piece continues, “We’ve read of the violence done to the National Labor Relations Board by the D.C. Circuit’s December decision in Noel Canning v. NLRB. Having read that opinion repeatedly, I believe it does violence to the Constitution as well. The D.C. Circuit last year voided a Food and Drug Administration regulation requiring graphic warning labels on cigarette labels as a violation of tobacco companies’ ‘free speech’ rights — to me, another grave misstep. And I feel the same way about the Circuit’s decision this week in National Association of Manufacturers v. NLRB. In this case, three Republican nominees held that the First Amendment’s right against ‘compelled speech’ protects employers against an NLRB regulation requiring them to post a government poster notifying workers of their rights. The decision is another step on the long, doleful transformation of the First Amendment from an individual right of conscience into a shield against business regulation.” The piece concludes, “So far, unfortunately, Obama and the Senate majority leadership have brought Nerf swords to the battle. Given what’s at stake, Obama should produce nominees for the other three seats — now, not later — and Reid and the Democrats should announce that another Republican filibuster will prompt the so-called ‘nuclear option’ — a mid-session rules change to do away with filibusters on presidential nominations. It is tempting to say that their timidity means they don't deserve to win. Unfortunately, the real losers — in NAM v. NLRB as in Noel Canning — are America’s workers, who deserve better.”
Source: Garrett Epps, How Vacancies on the D.C. Circuit Court Are Swaying Policy in America, The Atlantic, May 10, 2013.

JUDICIAL INDEPENDENCE

Iowa Legislators Withdraw Controversial Pay-Cut Measure
Sponsors in the Iowa House of Representatives have withdrawn a controversial amendment to a state budget bill, which targeted Iowa Supreme Court justices who had participated in the Court’s unanimous 2009 decision finding a constitutional right to marriage for same-sex couples.  Under the proposed amendment, the salaries of the four justices still on the Court who had participated in that decision would have been cut from about $163,000 to $25,000. The Des Moines Register writes, “Amendment sponsor Dwayne Alons, R-Hull described it as a check against judicial overreach. ‘We are standing on the sideline allowing the rule of law to be basically ignored, and we’re allowing an oligarchy type of situation to rule and reign in this state,’ he said. Rep. Tom Shaw, R-Laurens, expanded on that point, accusing fellow lawmakers of failing to uphold the government’s systems of checks and balances by declining to punish the court for its decision.”  The sponsors subsequently withdrew the amendment and no vote was taken.  Representative Chip Baltimore (R), chairman of the Judiciary Committee, was planning on speaking against the amendment during the debate.  He later stated that he believed the amendment would have received “only ‘a handful’ of votes.” Boone is quoted as saying, “‘It is extraordinarily poor public policy to attempt to tie different compensation levels to different individuals in the judicial branch based upon a decision that they’ve made… That position is certainly not representative of all Republicans here in the House or even most Republicans here in the House.’”
Sources: Peter Hardin, Sponsors Withdraw Retaliatory Pay-Cut Measure for 4 Iowa Judges, Gavel Grab, May 3, 2013; Jason Noble, Proposal To Cut Salaries For Judges Who Decided Iowa Same-Sex Marriage Case Goes Nowhere In House, Des Moines Register, May 2, 2013.

D.C. Circuit Hears Judicial Independence Case
The D.C. Circuit heard arguments about “whether an administrative law judge for the U.S. Department of Housing and Urban Affairs can sue the agency for what he believed were violations of his judicial independence.” The blog continues, “J. Jeremiah Mahoney, acting chief administrative law judge for the department, accused agency officials of interfering with his independence by selectively assigning cases and communicating with litigants. U.S. District Judge James Boasberg dismissed the case in November 2011, finding Mahoney lacked standing to sue. Today, Mahoney's lawyer, Kirkland & Ellis litigation partner Michael Williams, argued Mahoney did fall within the ‘zone of interest’ to have standing to challenge the agency’s actions. Williams said Mahoney didn't have to be a beneficiary in the same vein as a litigant to have an interest in fair proceedings.” During argument, the panel “pressed Williams to explain why Mahoney’s claims weren’t complaints about his ‘working conditions,’ requiring him to pursue claims under the Civil Service Reform Act.”
Source: Zoe Tillman, D.C. Circuit Grapples with Judicial Independence Case, Blog of Legal Times, May 10, 2013.

JUDICIAL ETHICS

New York Panel Says Special License Plates Allowable
The Associated Press reports that the New York Commission on Judicial Conduct has concluded that “[s]pecial license plates for judges don’t violate ethics rules, although police are reluctant to ticket drivers of those vehicles.”The question arose a few months ago when judges were being accused of using such license plates to get preferential treatments in traffic infractions. The article continues, “The commission says records showed 424 city and state judges and 1,832 present and former town and village justices have special identifying license plates on private vehicles. That could represent more than half the 3,500 jurists statewide, though retired local justices can keep their plates… The license plate alone, which can help with courthouse parking, is not intrinsically unethical and doesn't necessarily create an appearance of impropriety, though judges who invoke their judicial status when pulled over by police are misbehaving, the report said. It was endorsed by nine of 10 members, including two judges who have such license plates and two who don't.” The Commission’s press release and report are available here
Sources: NY Commission Says Judicial License Plates Are OK, Associated Press via Wall Street Journal, May 8, 2013; Rick Karlin, Conduct Commission: Should Judges Have Special Plates?, Albany Times-Union, May 8, 2013.