May 2007
“BENCH AND BAR: PARTNERS FOR FAIR AND IMPARTIAL JUSTICE”
BY REW R. GOODENOW, ESQ.
On March 28th, 2007, State Bar of Nevada President Rew Goodenow got the opportunity to deliver a speech to the graduating class of judges at the National Judicial College, as the Robert Houghwout Jackson Lecturer. What follows is a transcript of that speech:
President Dressel, thank you very much for that great introduction - judges don’t usually applaud for me like that - and thanks for the kind invitation to speak here today. The National Judicial College is fortunate to benefit from your fine leadership. I have been privileged to know President Dressel, both as a leader of our profession through his work here at the National Judicial College, and also as an active member of our church community and downtown Rotary Club here in Reno.
President Dressel, distinguished judges and guests, Nevada recognizes the National Judicial College for its unequaled contribution to the rule of law worldwide. We also value your contributions closer to home, here in Nevada. This college raises the bar for our bench and works with our bar to improve the quality of our justice system. This June, the State Bar of Nevada and the National Judicial College will be jointly presenting a program concerning contemporary judicial issues and challenges, including the issues that I’ll focus on today during our state bar convention. The judicial college also brings distinguished lawyers and judges to our state; when my wife Sue and I were considering moving here from Iowa, the only members of our legal community who seemed to know anything about Reno were our local judges, who had been out here to attend the college.
I bring you all greetings from the State Bar of Nevada, the fastest-growing mandatory bar association in the country, and our almost 8,000 members, lawyers and judges, working together to improve our justice system. Some quick examples of recent bench/bar collaboration in our state include:
(1) Our statewide Access to Justice Section, chaired by District Judge Connie Steinheimer, promoting pro bono activities and supervising our mandatory reporting of the pro bono services provided by Nevada lawyers;
(2) Justice Michael Douglas served on the Access to Justice Section’s governing board while he was a District Judge and after his election to the Supreme Court, until recently becoming chair of the Nevada Supreme Court’s Access to Justice Commission, formed by former Supreme Court Justice Nancy Becker. That commission works with the bar to coordinate legal service providers statewide. There is a rumor that you have to be active in pro bono and legal service work to get elected in Nevada.
(3) A horror story surrounding children lost in the foster care system erupted several months ago in Las Vegas. Chief Justice Maupin of the Nevada Supreme Court and I challenged our family law section’s lawyers to help solve this horrific problem by providing a pro bono advocate for each child in that system that needs help. The section and its members have responded to our challenge.
(4) A final example of our ability to work with the court is our recent effort to modernize our lawyer advertising rules. Like many states, we have been inundated by lawyer advertising that is misleading to the consumers and harmful to the profession. Several years ago, I asked the bar to address this issue. Our Supreme Court responded by establishing a Lawyer Advertising Commission that studied the problem and worked with the bar association to develop solutions for two years. Justices Hardesty and Cherry both served on the Study Committee. Last month, we presented the final proposals to the full Supreme Court, including the creation of a system for mandatory filing of all advertisements with the state bar and a voluntary preclearing process.
The opinions that I express today are my own and do not represent the views of the State Bar of Nevada, being composed of 8,000. I don’t have the time today to give you all 8,000 very different opinions.
One of the lessons that I learned while serving on our board of governors for three terms is that lawyers don’t have to quit the bar or stop being active when they become judges. “Lead riders” are cowboys that ride up with the lead steers at the front of the herd and push the herd in the general direction they need them to move. Judges can serve as lead riders for the bar. There is no rule that says a judge can’t be involved in the bar association.
When judges talk, lawyers will usually show up and listen. The communication works both ways. Judges sometimes say that when you become a judge that’s the last time you’ll hear the truth or eat a bad meal. But the bar can help you with accurate feedback on how you’re doing and with suggestions.
We need each others’ help with one very important issue, right now - judicial independence and respect for our third branch of government. First, I unambiguously support, respect and defend the principle of judicial independence. I’m sure most judges do, too. But, the first time you call the bar should not be when you are facing an unwarranted or misguided attack on judicial authority.
The principle of an unbiased, neutral third branch of government that serves to protect and defend individual rights and liberties is under attack nationwide. The court system cannot fight this battle alone. You can’t order people to respect the rule of law or our legal system. Some Nevada chukar hunters’ wisdom applies here – don’t try to command someone else’s dog. We’re not the voters’ master. They may ignore us, or worse, bite, if we misuse our credibility.
We must work together to educate the public. “Judicial independence,” the phrase, will not resonate with the people who count, the average voter. It means arrogant and unaccountable. Studies and focus groups support this fact. My 16-year-old wants to be independent. I know this may sound awkward to some judges, but what we should be talking about is a “fair and impartial judiciary.” Further, we need to personalize the message. This is not a closing argument. Citizens need to hear how the system affects them, directly. We can do that, we don’t have to speak about this in terms of platitudes and sweeping generalities.
In his book Leadership, Rudolph Guiliani observes that “One of the leader’s responsibilities is to meet the needs of those who he or she leads. The point is not to alter your message depending on the audience, but to present it so that it can be understood by whomever you’re addressing. The goal should be to ensure that your message gets through loud and clear to as many people as possible.”
The intellectual challenge of our time is this mission to teach. Leading our fellow citizens by teaching presents us with a way to give back to our community. In the Old Testament book of Leviticus, the book of the law, most of the chapters begin with the words “And the Lord spoke to Moses, saying. . .” then, Moses was supposed to go teach the chosen people. Moses made up all kinds of excuses: I stutter, I’m slow of speech, don’t know what to say, etc.; and I hear judges say similar things all the time – too busy doing the court’s work, ethical canons prevent it, sorry. Nonsense. Judges, like Moses, have an obligation to teach the people.
In his great and prophetic book, “Democracy in America,” Tocqueville opined that “the main evil of the present democratic institutions of the United States does not arise, as is often asserted in Europe, from their weakness, but from their overpowering strength: and I am not so much alarmed at the excessive liberty which reigns in that country, as at the very inadequate securities which exist against tyranny.” He was talking not about the tyranny of a king – he was talking about tyranny of a majority. The courts, our weakest branch, hold this tyranny in check. Tocqueville in the end pins his hopes, though, not on the courts, but on education, so that citizens will attain independence of character and rational knowledge, both of which will make them understand the invisible chains of tyranny of society over mind and conduct – and Tocqueville never watched Fox News.
What can the bar association do to help you? We can help with legislative issues, like court budgets.
Recently, here in Nevada, our bar association has become active in promoting a constitutional amendment to change the way judges are selected. At present, we have a contested, but non-partisan election system. Even before Republican Party of Minnesota v. White was decided in 2002, judicial elections were starting to get ugly. Now there promises to be a whole new dimension to judicial free speech, in the only state in the country where judges can lawfully directly solicit campaign contributions. We’re working with our judges to help change this system to a merit selection process.
We also provide funding and staff support for pro bono and other efforts to meet unmet legal needs. We promote and fund law-related education programs. Like most bars we also have media contacts, training and professionals.
Here’s what you can do to help us. Provide us with information, like court statistics, examples and anecdotes that we can use to motivate our members, legislators and the public. Next, help us to motivate our members to serve the public better, through renewed efforts and development of fresh approaches to meeting the challenges our justice system faces.
When you are faced with an issue that affects the public perception of the law and lawyers, let us know. A good example of this pro-active approach is what happened in Las Vegas, when a lawyer showed up obviously impaired, drunk or high in Judge Michelle Leavitt’s court. She didn’t let him proceed, but also referred him to our bar counsel’s office. Then, we were able to find pro bono lawyers for all his pending cases, to get him to surrender his license and to get him into a treatment program, through our Lawyers Concerned for Lawyers program. This turned a public nightmare for the legal profession into a positive outcome for clients, probably a life-changing (for the better) experience for the lawyer and a positive public statement about lawyers, judges and our bar.
I have observed that most judges, especially new judges, care profoundly for our justice system. That attitude didn’t just spring Minerva-like fully-formed from each judge’s head at the investiture ceremony. Lawyers and our bar associations nurtured this attitude. I encourage you all, at this stage in your careers, to recommit to pay it forward.