Opinion Extra

Howard: Constitutional crisis brewing

The Judicial Merit Selection Commission's tentative decision to find a family court judge unqualified because of actions that the Court of Appeals had affirmed and in fact said she had to perform creates a constitutional crisis for our state.

The story of Family Court Judge Frances P. "Charlie" Segars-Andrews is a bit tricky to follow, but it's important to understand.

In 2006, Judge Segars-Andrews was assigned to preside in Clarendon County, where she heard a bitter divorce case. Two weeks later, she informed all counsel of her decision on each issue. The husband's lawyer then asked Judge Segars-Andrews to recuse herself because the judge's husband practiced law with Lon Shull, who had helped the wife's attorney in an unrelated 2003 divorce case involving the litigant's parents. His help was to file an affidavit supporting the reasonableness of his attorney fees.

Judge Segars-Andrews ruled she had no reason to recuse herself, because that matter had nothing to do with the case before her, and she had not even known about the situation until after she rendered her decision. However, reminded by her husband that Lon Shull also had teamed up with the wife's lawyer in an unrelated civil case the year before, earning a substantial contingency fee, she said she would recuse herself. But the wife's attorney opposed recusal, and Judge Segars-Andrews agreed to accept briefs from the parties before reaching a final decision.

The wife's attorney filed a brief and an affidavit from Nathan Crystal, a highly respected law school ethics professor. Professor Crystal pointed out that Ethics Canon 3B(1) specifically requires a judge to sit and hear a controversy if there is not a basis for disqualification.

Ultimately, Judge Segars-Andrews ruled that the Judicial Canons of Ethics required her to rule in the case. The husband appealed to the Court of Appeals, which held that Judge Segars-Andrews was correct in that decision and in her rulings on the issues in the divorce case. The court stated, "Having found no evidence that could question the impartiality of Judge Segars-Andrews, or any other reason requiring her recusal, we find Canon 3B(1) to be controlling, which imposes a 'duty to sit.'" In other words, the Court of Appeals ruled that Judge Segars-Andrews would have violated the Code of Judicial Conduct if she had recused herself.

The disgruntled litigant then filed a grievance with the Commission on Judicial Conduct, which also found the complaint to be without merit.

Now the body created by the Legislature to screen judicial candidate has rejected both of those findings and essentially ruled that Judge Segars-Andrews did in fact violate judicial ethics, and in such a spectacular way that she no longer was fit to be a judge.

Judicial independence is essential to our society. Judges must have the authority to weigh the effect of motions such as this on all of the litigants and the judicial system itself. Because litigants often perceive that they can gain advantage by changing judges, our courts have tried to ensure that motions to recuse not be used as a mechanism for judge shopping, which undermines the integrity of the judicial process. Additionally, a judge who recuses herself in order to avoid controversy or the discomfort of public ridicule when there is no basis for disqualification places an extra burden on her fellow judges and prejudices the non-moving party.

Article V, Section 4 of our constitution specifies that the Supreme Court has the responsibility for establishing the rules governing the administration of the courts. Our constitution also states in Article I, Section 8 that each of the three branches of government is separate, and no branch can intrude on the responsibilities of another branch. Judges cannot legislate, and the Legislature cannot usurp the function of the judicial branch.

A judge is required to follow the Code of Judicial Conduct. When those rules mandate that the judge hear a case, that judge is subject to discipline from our Supreme Court for non-compliance, including removal from office. Clearly, that judge cannot be pronounced unqualified by the Judicial Merit Selection Commission for having followed those very same rules. That is an intolerable Catch 22, and violates the separation of powers.

Lawyers who leave private practice to become a judge quickly realize that they have given up their most lucrative earning years for public service. Finding qualified candidates will become impossible if the stability of judicial re-appointment is undermined by an unfair political process.

The Judicial Merit Selection Commission should change its vote. That's the only way to avoid violating the separation of powers mandated by our state constitution.

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