Citizens United Threatens Independence of Judicial System — Tennessee Answer to Problem

MOST POPULAR ARTICLES

COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary CLICK HERE TO GET COMBO TITLE AND SECURITIZATION REPORT

Editor’s Note: The New York Times editorial makes a good point. Many Judges are elcted and even those who are appointed are frequently appointed by elected officials. Having money pour into these campaigns from  banks and servicers, which is what is happening, will conform the worst fears of most citizens who are cocnerned about getting a fair hearing in court. It is difficult to be objective if the majority of your campaign money has come from the financial sector.

  • Remember the judicial system doesn’t actually guarantee justice of a fair result as you would see it. It is there to guarantee a fair hearing. You may think they are the same thing, but if you think about it, they are not the same.
  • This is why presentation and procedure is so important and that from the start you establish credibility — which means objecting to proffers of facts not in evidence and making it clear that you do not concede that the debt still exists, you do not concede that the debt is in default and you do not concede the standing or interest of the party seeking to foreclose or even settle, mediate or modify the loan.
  • That is why it is so essential that you obtain the COMBO Title and Securitization report, and you most probably should have the Loan Level Accounting report that frequently shows that the forecloser on the one hand is declaring a default and on the other hand paying the creditor curing the default. Adding the Forensic Loan Analysis (TILA+) may well pave the ground for damages, recover of attorney fees at an early stage to finance the rest of litigation and attacking the validity (not the existence) of the mortgage lien.
  • The issue is not whether you are right or wrong — a conclusion that is reached at trial. The issue is whether you can get into the CONTESTED factual assertions made by each side and to achieve the result of getting into the discovery stage. discovery. Once, there, most cases settle when the banks and servicers must come up with actual full accounting, actual documents and proof of transactions that referred to on fabricated transfer papers.

I think it is appropriate to ask the Judge in as non-threatening way as possible whether the Judge has any conflicts. Perhaps the question can be phrased that your client is concerned about the amount of money that is flowing into campaigns and the pension money that has been used to purchase what now appear to be worthless mortgage bonds or what may be valid bonds but worth far less depending upon the outcome of the cases that attack either the security instrument or the debt or the note supposedly evidencing the debt.

That way you are introducing the basic issues and at the same time you are asking the Judge to commit himself on record as to whether he has any conflicts or whether there is any relationship or investment which could influence his decisions.

If you are going to do that — and I recommend you do — make sure your client is there or it will seem that you are just using tactics or strategy. Whatever the answer, instruct your client to remain calm and passive.

The very conservative Tennessee Supreme Court has already recognized the problem and issued an order for automatic recusal (self removal by the Judge) where the problem surfaces.

A more interesting proposition is where the prosecutors are elected or appointed in the same way. Prosecutorial discretion (whether to prosecute or not) could undermine the criminal process. Remember that despite the efforts of the  newly constituted investigatory and prosecution units, the politics is running heavily in the direction of the banks despite the public outcry.

Perhaps the answer to all of this is to have retired Judges hear the cases and where appropriate appoint special prosecutors from the private sector.

A Reform for Fair Courts

New York Times Editorial January 28, 2012.

With rising special-interest spending in state judicial elections, there is an urgent need to protect judicial integrity from the flood of campaign cash. Tennessee is leading the way with a new rule prohibiting judges from hearing cases when campaign spending by lawyers or litigants raises a reasonable question of their impartiality.

Adopted earlier this month by the Tennessee Supreme Court, the recusal rule applies to both direct contributions and independent expenditures favoring a judge’s election. It requires judges to step aside when the level of campaign support raises a reasonable concern about his or her ability to be fair. Judges who deny a recusal request will need to provide their reasons in writing, and the final word on recusal will not be left to the challenged judge. The litigants will have a chance to appeal recusal decisions to the court’s other judges.

The United States Supreme Court in a 2009 case recognized the potential threat to public trust in the justice system posed by outsized campaign spending in judicial elections. But few of the 38 states that elect their top judges have tried to combat the problem with more rigorous recusal rules. If special interests knew their campaign spending would be likely to trigger recusal, they might not try as hard to buy up judges.

Tennessee’s good model should help prod court leaders in other jurisdictions to follow suit. Campaign spending problems have plagued judicial races in states like Illinois, Alabama and Pennsylvania. A sensible rule on recusal would significantly increase public confidence in judicial integrity.

%d bloggers like this: