David Hill

Back when doctors were still putting leeches on people and doing haircuts, lawyers were drafting the Declaration of Independence. During the signing of the Declaration, Benjamin Franklin famously stated, “we must all hang together, or most assuredly we shall all hang separately.” When declaring their independence from England, the signers of the Declaration of Independence knew precisely what they were doing: They were committing treason.

But what was England doing so wrong that the signers were willing to risk their lives, fortunes and their sacred honor to gain independence? 

Despite their deep frustrations, many American colonists were still loyal to England and were determined to use every possible method to solve their problems without openly rebelling. To resolve their concerns, the colonists tried to pass laws, petition the government, and bring their cases in court. However, all of these attempts to seek relief were met with repeated rejection, threats and punishment.

It is no wonder then that when the Declaration of Independence was signed, many of the listed grievances were directly related to England’s control over the judiciary and the rule of law. Interestingly, of the 27 listed grievances — the most significant violations the founders could list — 10 related directly to England’s corruption of the judiciary and the rule of law. The people were mad that the king refused to allow them to make laws, select unbiased judges, hold jury trials or even have trials in America. 

Because of these real-life experiences, when the U.S. Constitution and Bill of Rights were adopted, Article 3 outlined an independent judiciary and many of the amendments specifically affirmed our individual rights under the law. With this history in mind, one could easily claim that the Declaration of Independence, Constitution, and Bill of Rights are, in large part, the embodiment of American judicial reform. 

In our day, several are again calling for judicial reform. These calls come from a few different groups for various reasons. Some are not without legitimate points, but most are based on a misunderstanding of the role and function of the judiciary, or a confusion between the federal judiciary and the state judiciary. 

The first group calling for reform includes those who are frustrated with the limited public involvement in the selection of judges. They suggest having judges elected directly by the people. For those who believe it would be a good idea to hold elections for judges, look at the disfunction in states where judges are elected like Wisconsin and Texas. Often these elections result in out-of-state lobbyist groups spending substantial amounts of money funding judicial races after which the judges are allowed to pocket any unspent funds. These elections attract politically motivated judges and discourage qualified candidates from participating in the process with the elected judges having to answer to those who got them elected. Electing judges is a bad idea.

Wyoming currently uses a merit-based selection process. When a judicial opening is announced, candidates send applications to the Wyoming State Bar’s judicial nominating commission. The commission selects the three most qualified candidates and submits them to the governor, who appoints one. After the new judge has been appointed, they stand for retention in the next general election where they must be retained by a majority of the voters. If the voters do not keep them, the judge is removed. Even if they are kept, judges have to be retained by the voters every eight (Supreme), six (District), or four years (Circuit). 

The second group of individuals pushing for change claims that the legal system is flawed. This includes perceptions that the judicial system is too lenient, strict or biased. Some also raise concerns over judges “legislating from the bench.”

The purpose of the judiciary is to interpret the law, and it is the proper function of the judiciary to determine whether or not laws are consistent with each other and the Constitution, or whether the law has been correctly applied. Certainly, judges can make errors, and some judges may exceed their authority (though I do not believe that is often the case in Wyoming), but the process for addressing these concerns is built into the system of appeals, and in rare cases, impeachment.

The last group includes people who have lost a case and are understandably upset that things did not go their way. Every case that goes to trial will necessarily have one party, or both, who are upset with the result, but being upset with a result does not justify reforming the entire judiciary. When judges get it wrong, an appeal might be an option, as is not voting for the judge’s retention. But often, it is the law, not the judge, that needs to be changed. 

For those who want radical judicial reform, I remind you that radical is the antithesis of conservative, and a radical conservative is an oxymoron. Any proposed reforms must therefore be conservative. The best thing for people who desire to change our judicial system in Wyoming to do is to learn about the history of the judiciary in America and in Wyoming as well as the judicial process first. I believe you will see a vastly different situation between the time of the American Revolution and today. For those who believe that change is necessary, I encourage you to talk to your legislators about what conservative reforms could be proposed while preserving our merit-based judicial system.