Friday, January 16, 2009

Justice Foreclosed?

Thin ice, meet Chris. Chris, thin ice.

When I started this blog, I said I would always speak my mind, regardless of the consequences, so here we go...

I listened with great interest to Chief Justice Randall Shepard's State of the Judiciary, and I was not surprised to hear that foreclosure lawsuits outpace divorce filings now. But I was a bit taken aback to hear the Chief Justice say that he wants the state's courts to team up with Lieutenant Governor Becky Skillman's Foreclosure Prevention Network and that he wants to train judges, mediators, and pro bono lawyers on foreclosure law.

[In the interest of full disclosure, even though he is a Republican appointee, I consider the Chief Justice an extremely fine jurist with a novel goal of giving independent life to the Indiana Constitution, a superb administrator, and an amiable fellow (based on from my limited experience of a Christmas party this year, some bar dinners, and some random Inns of Court over the past five years)].

But am I the only one uncomfortable with our Chief Justice moving so openly in the political sphere, even if his objectives are reduced caseloads or streamlined courts?

When Justice Shepard was named to the Kernan-Shepard Commission, I recognized the Governor wanted someone with impeccable objectivity, which Justice Shepard has. But human nature being what it is, I wonder how easy it would be for him to rule against an idea that his Commission championed should a legal challenge arise.

The same thought hit me about the foreclosure prevention involvement. Were any of us running for political office, we would all tell Hoosiers, "Foreclosures are bad! We must stop them!" But this must not be a uniformly held view. Otherwise, why would there be so many foreclosure filings? I know that the clients for whom I have tried to negotiate deals to avoid foreclosure were almost all unsuccessful, regardless of how generous the proposed payment terms. Banks wanted the lawsuits, and now they are reaping the detriment of their own greed. So perhaps we should say, "Screw 'em. Let's get the Governor, the Lt. Governor, the General Assembly, the Courts, the police, the fire department, and anybody else we can think of prevent foreclosures!!!"

But from a purely philosophically point of view, if you know the Chief Justice wants to partner up with a foreclosure PREVENTION network, how confident would you be in getting a judgment in your case? As the goal of the PREVENTION network is to PREVENT foreclosures, how confident would you be that all the lawyers and mediators the Chief Justice speaks of training will not foil your efforts to actually foreclose?

This is not a thought I keep solely for our Chief Justice. I disapprove every time a Judge or Justice puts their words, or worse...their hands...into the public policy cooking pot. Judges should interpret and enforce laws, not try to lobby for their change or alter their implementation in a way that could benefit one party's interest over another.

Admittedly, we know judges' policy preferences will ultimately inform some of their decisions. But faith in the judicial system comes from the comforting (if arguably naive) belief that each judge starts each case with a blank slate. It's hard to maintain that belief with judges who pursue policy objectives.


1 comment:

Paul K. Ogden said...

I'll just say a huge "ditto" to your comments. Unfortunately, as a lawyer I am not free to say much more.