Is Our Judicial System Broken? (Brian Ratcliff Commentary)

by Brian H. Ratcliff  on Monday, Jun. 9, 2014 12:00 am  

Brian Ratcliff

Most people avoid court if possible. But if you have to go to court, you want a fair and impartial judge to hear your case.

The trial and appellate judges before whom I have practiced are excellent jurists and strive to deliver justice. I am writing a commentary with this title because the public perceives the judicial system to be broken or, at a minimum, in danger of losing its sacred impartiality.

Pulaski County Circuit Judge Chris Piazza recently declared unconstitutional an Arkansas constitutional amendment passed by a majority of the voters banning gay marriage. His decision prompted some citizens to demand his impeachment. The case is now at the Arkansas Supreme Court. Could a decision on a divisive issue by judges set off a firestorm of challenges by political and special interest groups to “remove” the judges responsible?

In 2009, the Iowa Supreme Court struck down the state’s ban on same-sex marriage. That year, two of the state’s Supreme Court justices were up for retention election, and in a campaign in which an outside group spent $1.4 million, the justices were defeated. In 2012, the group targeted another justice up for retention election but was unsuccessful because of efforts by the Iowa State Bar Association and the American Board of Trial Advocates to educate the voters.

Iowa is not alone. In 2011, Florida politicians attempted to stack the state Supreme Court. In 2005, South Dakota voters weighed in on a constitutional amendment titled J.A.I.L. for Judges. The amendment failed but it would have eliminated judicial immunity and allowed special grand and petit juries to remove judges from the bench.

The funneling of money into judicial campaigns by political parties and outside interest groups has increased nationally. For instance, in 2009-10, $9.2 million was spent in the Michigan Supreme Court election, $5.4 million in Pennsylvania and $4.4 million in Ohio. In Arkansas we have yet to see runaway spending like this. The only comparison would be the Supreme Court race in 1990 in which a total of $600,000 was spent by Robert Brown and Judith Rogers. We have just witnessed a $400,000 ad campaign by a nameless group active in the Arkansas Supreme Court race between Judge Robin Wynne and Tim Cullen.

Arkansas must work to preserve its judicial independence or glove up for the constant battle of the branches that will divide our state as we have never seen before.

So what steps can we take?

First, we need to reinstate the teaching of civics in our schools to be sure that everyone understands the basics of the three branches of government and the built-in checks and balances.

Second, we need to consider adopting standards for recusal of judges at the circuit court level as well as the appellate level. This could include on the appellate level a peremptory challenge of one judge. At the circuit court level a panel of judges to hear motions on recusal could be established. Once a judge is removed there must be an established system for replacing that judge.

Third, Arkansas should consider merit selection of its judges. State Rep. Matthew Shepherd of El Dorado proposed such legislation in the 2013 General Assembly. Some states have experienced attacks on the judiciary with merit selection. A truly neutral system would help ensure that fair and impartial judges sit on our state’s highest court.

Finally, the Arkansas Bar Association has recommended a nonprofit be formed to address unfair criticism of the judiciary as well as false attack ads on candidates.

What every citizen wants and deserves is a level playing field in our court system — that is, a fair and impartial judiciary. Now is the time to act before we become one of the states others add to the list of political battlegrounds.

Brian H. Ratcliff is a partner at PPGMR Law in El Dorado, where his practice focuses on civil litigation defense. He will be sworn in as president of the Arkansas Bar Association on Friday. Email him at



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