Impeaching State Judges: Report Reveals More Attempts In 2011

WASHINGTON -- The rise in Tea Party-backed state legislators led in 2011 to the largest number of attempts to impeach state judges in recent history, according to a new analysis.

The analysis, posted Tuesday on the blog of the National Center for State Courts, found that there were 17 attempts to impeach state judges this year, including a move to oust the entire New Hampshire Superior Court. Although some of these efforts focused on judicial ethics, most of the attempts arose out of legislators' disagreement with judges' decisions in particular cases.

"I would directly attribute it to the influx of new legislators elected in 2010," said Bill Raftery, an analyst for the National Center for State Courts.

Raftery noted that many of the new lawmakers were backed by the Tea Party and that they have been targeting legislative efforts against the judicial branch. He described their goal in part as bringing the judicial branch under greater control of the legislative branch.

"It is the idea that the courts are unelected bureaucrats," he said.

He cited in particular an effort to impeach the majority of the Iowa Supreme Court for the ruling that legalized same-sex marriage in the state and a proposal to ask Congress to remove a federal judge in Oklahoma for issuing an injunction against the state's ban on sharia law.

Raftery also expressed concern about proposals that have been floating about for several years to declare new impeachable offenses for state judges. These include a measure in New Hampshire to impeach judges for appointing lawyers for defendants in situations not explicitly covered by state law and a proposal in Arizona to oust judges for citing religious or foreign law in rulings. The New Hampshire bill is pending before a committee, while the Arizona bill died in committee in early 2011.

"My suspicion is you will see this again in 2012," Raftery predicted.

The reasons for trying to remove judges could be very narrow. Raftery said the effort to oust the New Hampshire Superior Court arose from a single case, the divorce and child custody dispute between Jennifer and David Johnson.

In addition to attacking a federal judge in their state, Oklahoma lawmakers filed impeachment charges against three state trial judges. In two of those efforts, they pointed to such decisions as not rejecting a plea bargain in a child abuse case and rejecting a blanket recusal motion.

"What it comes down to is members of the public going to their local representative and senator and giving their side of events," Raftery said. "They take that information and decide based, exclusively on that, to start impeachment. They are functioning as a rump appellate court."

Oklahoma lawmakers also sought to remove Judge Tammy Bass-LeSure following her indictment on 36 felony charges. Pennsylvania lawmakers sought to remove Judge Willis Berry Jr. after he was disciplined by a state judicial panel for using state resources to manage his investment properties. In New Jersey, the state Senate asked the Assembly to start impeachment proceedings against Supreme Court Justice Roberto Rivera-Soto for declining to participate in cases for most of his last year in office because of what he believed was an unconstitutional appointment to the court.

Although none of the 2011 efforts has so far cost a judge his or her job, Raftery said he expects state judicial impeachment filings to continue at the same level in 2012. He noted that many of the 2011 efforts remain pending in the legislatures.