The following summaries, developed by Bar President Gregory D. Robbins and President-Elect Peter E. Hutchins, cover key issues the Legislature is expected to focus on in this session. It is not offered as a manifesto or doctrine, but instead as jumping-off points for discussion of intended and unintended consequences of various proposals and concepts.

Two key issues in the legislative area are not summarized below: the concept of the need for an independent Judicial Conduct Commission, and the creation of a committee to further study potential remedies to the appellate backlog. Both ideas have encountered relatively little opposition and have been extensively discussed elsewhere. Click here for the full text of the Judicial Conduct Commission proposal.)

While the Bar will take official positions on some measures in the coming months, the Bar intends to play more of an informational role in the judicial reform discussion at this early stage of the session and this issue's briefing is offered in that spirit. The Bar's Legislative Task Force, over the past few months, has conducted much research- both within the state and by utilizing national sources-to compile information on the potential impact of specific proposals. This research will be made available to lawmakers and others interested in these issues; material will be posted on the Bar's Web site where it will be available for viewing by anyone.

Proponents contend term limits will:

• create more judicial accountability;
• make it easier to remove judges who lack competence, diligence or a proper temperament;
• enhance public confidence in the continued quality of judiciary.

There are concerns that term limits will:

• create the potential of judges being influenced in their decision-making by political considerations, thus undermining their decisional independence;
• hinder the recruitment of candidates for judicial office;
• create a two-tiered system of judges since existing judges will continue to have life tenure. The presence of both life-tenured and term-limited judges on the bench could lead to "forum shopping."

Moreover, imposing term limits may not succeed in proponents' most immediate goal-having an immediate impact on the workings of the court since term limits cannot be retroactively imposed on current judges.

Questions: What will be the cost of this review process? What entity will conduct these reviews?

Making permanent a merit-based judicial selection process.

Proponents say such a change will:

• eliminate possibility that subsequent governors could eliminate merit selection;
• encourage a wider candidate pool;
• encourage the consistent use of objective merit based criteria;
• enhance public confidence by reducing the chance that the public will see judicial decisions as politically motivated.

There are concerns that such a process:

• could lead to creation of a costly bureaucracy;
• might discourage qualified candidates who choose not to affirmatively seek the position;
• could become politicized based on how appointments to the commission are made.

Questions: Who will appoint commission members? What will its makeup be? Will it be adequately staffed and funded?

Proponents have made various arguments:

• the legal profession should be more independent of the judicial branch;
• other states do not require Bar membership;
• compelled membership infringes on individual rights

Supporters of the unified Bar maintain:

• in a unified Bar, all members of the profession are involved, not just the "joiners."
• the unified Bar does not inherently affect the ability of members to express controversial opinions;
• the collective efforts of the profession to support rule of law and justice system would be diminished if Bar membership were not required;
• a voluntary Bar would have a more difficult time promoting uniformity in the formation and adherence to professional and ethical standards;
• by economic necessity, a voluntary bar association would be primarily focused on member services and member retention, and public service activities would be subordinated.

Proponents of change contend the courts have infringed on the authority of the legislature in substantive areas of law.

However, it is clear that the court should continue to make rules pertaining exclusively to the administration of the courts, just as each branch of government adopts its own internal administrative procedures. Greater clarity of the traditional distinction between spheres of responsibility of the different branches of government is needed. Also, better communication-such as appointing legislative and lay members to the Supreme Court's Rules Advisory Committee-would provide the legislature and the public with earlier notice of potential areas of conflict and the opportunities to provide input. A mutually developed solution to this issue would promote comity between the branches of government.

Removing Supreme Court oversight of the PCC.

The current structure of the PCC has undergone significant changes in recent years to make the conduct process more open to public scrutiny. The Bar favors the current structure generally while acknowledging need for ongoing review of rules and procedures to further improve responsiveness and fairness of the process.

Unlike the JCC, there is no inherent conflict in court administration of lawyer discipline.

The court system has the expertise to regulate lawyer discipline; similarly, other professions are regulated by boards consisting primarily of members of that profession.

Finally, we encourage all members of the Bar to take the time to consider the future of the state's legal system and courts, and to reach out to those they know in their community-friends, neighbors, business colleagues, and legislators-to express their own views. Now is the time to share your knowledge and training in the law, and your thoughts and experiences with the courts. The debate will be enriched by your participation.

Gregory D. Robbins, President

Peter E. Hutchins, President-Elect

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