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The Millbrook Independent

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Dec 19th
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The selection removal of judges
Written by News Desk   
Thursday, 21 August 2014 15:34

bobmartinBy Bob Martin, Publisher

Most Article III "federal" judges serve for life during good behavior and hold their seats until they resign, die, or are removed from office. Although the current legal thinking, according to those familiar with the issue, is that judges cannot be removed from office except by impeachment by the House of Representatives followed by conviction by the Senate. Several legal scholars, including former Supreme Court Justice, William Rehnquist, have argued that the good behavior provision may, in theory, permit removal by way of a writ of scire facias filed before a federal court, without resort to impeachment. Under this form of action a defendant could plead his case which would be similar to a quo warranto proceeding which is used to test a person's right to hold office. According to the history books, in 1684, the royal charter of the Massachusetts Bay Colony was rescinded by a writ of scire facias for the Colony's interference with the royal right in founding Harvard College.

Since the impeachment process requires a trial by the Senate, and since the constitutional provision concerning federal judges' tenure cannot be changed without the ratifications of three-fourths of the states, federal judges have perhaps the best job security available in the United States. Additionally, the Constitution forbids Congress from reducing a federal judge's salary. Recent experience also shows that Congress is usually not willing to take the time to impeach and try federal judges until after a criminal conviction, or until a judge is in prison and still drawing a salary, that otherwise can't be taken away.

Conversely, in Alabama we elect all of our judges with the exception of those at the municipal level. All appellate, circuit and district judges serve for six year terms and, until the early 1970's, there was virtually no way to discipline any judge for misbehavior except through the cumbersome and seldom used method of impeachment.

Then in 1970, Howell Heflin, a successful Tuscumbia lawyer and former president of the Alabama State Bar, was elected the state's chief justice on the platform that he would initiate a broad movement among lawyers and state citizens of all occupations to adopt a modernization plan for the state's antiquated judicial system. It would take both legislation and a Constitutional Amendment which would have to be approved by the voters. A significant part of that plan was to create a system in the state to discipline or remove errant members of the state judiciary.

At that time I was editor of The Florence Times/Tri-Cities Daily. The only difference I should point out was The Florence Times was delivered north of the Tennessee River and the Tri-Cities Daily was for the cities of Muscle Shoals, Sheffield and Tuscumbia and the south side of the river. After taking office in 1971, Chief Justice Heflin hired me as a state court administrator, which placed me on the front row with many people, including his administrative assistant Mike House, Professor Charles D. Cole of Cumberland Law School, and many state judges and court clerks in the successful effort to lobby the enactment of judicial reform in our state through the legislature.

Heflin's efforts, coupled with those of State Sen. C. C. "Bo" Torbert of Opelika, who succeeded Heflin as State Chief Justice, and the efforts of his local lawmakers, the late Sen. Stewart O'Bannon of Florence, Sen. Joe Fine of Russellville, and Reps. Ronnie Flippo and Bob Hill, Jr. of Florence, resulted in passage of much needed legislation. Many other lawmakers, however, were also crucial to the success of the legislation's passage.

The plan in the constitutional reform to create a system to discipline and remove judges was naturally one of the most controversial parts of the legislation. However it passed by a significant margin and was approved by the voters. The legislation in subsequent years to implement all the provisions of the new Judicial Article to the Constitution was also adopted.

The final adoption of Chief Justice Heflin's judicial reform efforts was a significant step forward for our state in judicial circles throughout the Nation. The American Judicature Society, a national organization dedicated to the effective administration of the nation's courts deemed it "a most significant step in the administration of justice in Alabama and a model for the Nation."

Judge Heflin went on to serve in the United States Senate from 1979 to 1997. He died in 2005 at age 83. His wife, Elizabeth Ann Carmichael Heflin passed away this past march in Tuscumbia at age 88. She was a wonderful lady and her husband was a giant in the world of law.

Bob Martin is editor and publisher of The Montgomery Independent. He is the publisher of the Millbrook Independent. E-mail him at: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

 
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