Judging requires applying the law instead of personal morals, philosophy, or policy of the community. Doing so requires a respect for the separation of powers between branches of government. Justice Franchini of the New Mexico Supreme Court reflects on this challenge for judges through a personal anecdote

Franchini, Gene E.

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Conscience, Judging, and Conscientious Judging

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The Journal of Appellate Practice and Process Volume 2 Issue 1 Article 4 2000 Conscience, Judging, and Conscientious Judging Gene E. Franchini Follow this and additional works at: https://lawrepository.ualr.edu/appellatepracticeprocess  Part of the Judges Commons, Jurisprudence Commons, and the Law and Philosophy Commons Recommended Citation Gene E. Franchini, Conscience, Judging, and Conscientious Judging, 2 J. APP. PRAC. & PROCESS 19 (2000). Available at: https://lawrepository.ualr.edu/appellatepracticeprocess/vol2/iss1/4 This document is brought to you for free and open access by Bowen Law Repository: Scholarship & Archives. It has been accepted for inclusion in The Journal of Appellate Practice and Process by an authorized administrator of Bowen Law Repository: Scholarship & Archives. For more information, please contact mmserfass@ualr.edu. CONSCIENCE, JUDGING, AND CONSCIENTIOUSJUDGINGGene E. Franchini*Eighteen years ago, while I was serving as a New Mexicotrial judge, I found myself in an uncomfortable position. TheNew Mexico legislature had recently passed a mandatorysentencing law for certain crimes committed while using a gun.A defendant convicted of aggravated assault with a gun wasbefore me for sentencing. The jury had recommended leniencyand the pre-sentence report I had ordered showed this to be thedefendant's only offense of any kind.His counsel moved for an order declaring the new actunconstitutional on several grounds. After briefs and oralarguments, I held the act unconstitutional on the basis that itviolated the doctrine of the separation of powers. Clearly thelegislature had the duty, power, and responsibility to establishthe penalties for the violation of criminal statutes. However, itwas my judgment that sentencing was and always had been apurely judicial function. Therefore I held that the legislature hadoverstepped its legitimate function to establish penalties andhad, by enacting this mandatory sentencing act,unconstitutionally infringed upon the judicial function to imposesentences. I then sentenced the defendant to the prescribed termand suspended it all, putting him on probation for a year. Thestate appealed my ruling.The New Mexico Court of Appeals, based on the holdingand direction of New Mexico v. Mabry,' upheld theconstitutionality of mandatory sentencing under the NewMexico Constitution.2 In Mabry, the New Mexico Supreme* Justice, New Mexico Supreme Court.1. 630 P.2d 269 (N.M. 1981).2. New Mexico v. Aguilar, No. 5082 (N.M. Ct. App. Aug. 11, 1981). For a publishedexplanation of Aguilar's lengthy procedural history, see New Mexico v. Aguilar, 624 P.2dTHE JOURNAL OF APPELLATE PRACTICE AND PROCESS Vol. 2, No. 1 (Winter 2000)THE JOURNAL OF APPELLATE PRACTICE AND PROCESSCourt held that mandatory sentencing does not violate theseparation of powers under the New Mexico Constitution TheCourt of Appeals ordered me to sentence the defendant to theterm prescribed. The mandate also prevented me from enteringany order of probation. The defendant was returned to my courtfor sentencing, and, finding myself with a conflict between myoath of office on one hand and my conscience on the other, Iresigned.At the time, I stated from the bench:My oath as a district judge is to uphold the Constitutionand laws of this nation and this state. The Constitution ofthis state means what the Supreme Court of this state saysthat it means-for it is their unique duty and responsibilityto interpret the New Mexico Constitution. Any citizen,even a judge, may disagree with such an interpretation, butthere can be no disagreement that, once interpreted by theSupreme Court, such interpretation is the law. My specificoath of office is to uphold and apply the law.My conscience and sense of justice on the other hand willnot allow me to sentence to the New Mexico StatePenitentiary, a 26-year-old man who has no prior record,has been honorably discharged from the U.S. Navy afterthree years active duty and three more years Naval Reserveduty, and at the time of this offense was supporting his41-year-old widowed mother, and who acted on the spur ofthe moment. To do that is to fly in the face of every thoughtI have had about justice and the right thing to do.Therefore, I personally and as this Court refuse to be aparty to this injustice. That injustice has now been encircledand encased in concrete by the recent holdings of ourappellate courts upholding the constitutionality of variousmandatory provisions of the Sentencing Act.Life and liberty are two basic and inalienable rightsguaranteed to us all by our Constitution. That Constitutionand history itself place the function of imposing sentences,and thus depriving a person of that liberty, solely on thetrial courts and its judges. It does not salve my conscienceone bit to learn that after 200 years the legislature has now520, 521 (N.M. 1981), and New Mexico v. Aguilar, 650 P.2d 32, 33 (N.M. Ct. App. 1982).3. See Mabry, 630 P.2d at 273.CONSCIENCE, JUDGING, AND CONSCIENTIOUS JUDGINGconstitutionally taken upon itself-and away from thecourts-this awesome power and responsibility, withoutever seeing a defendant and without hearing or consideringany evidence for or against him. An act, declared to becriminal if committed, is now enough. All otherconsiderations are irrelevant, immaterial, and of noconsequence as a matter of law.So much for the concept of due process. So much for theduty to consider all circumstances surrounding the offenseand all circumstances surrounding the offender beforeimposing a prison sentence. So much, finally, for a judge'sduty, obligation, and responsibility to judge.The law and administration of justice has always been oneof the great loves of my life. I cannot and therefore will notnow prostitute it or myself.The governor appointed a replacement in due course andthe defendant was sentenced to the prescribed term by the newjudge.With my resignation I was not attempting to impose on anyother person-judicial officer or not-my personal beliefs ofwhat justice is, or my ideas as to its administration. Nor did Imean it as a guide to others on how to solve strong personal,philosophical, or moral conflicts while sitting as a trial judge. Itwas my personal solution to a vexing personal problem andnothing more.However, the question remains: What are the duties ofjudges, at any level of the judiciary, when the civil and criminallaw they are interpreting and applying conflicts with theirpersonal, philosophical, or moral beliefs? The answer is clear.They must interpret and apply the law as they know or believe itto be. We are judges of the law and not judges of the morals,philosophy, or policy of the community. We have no authorityor jurisdiction to do otherwise.Certainly a judge can hold an act unconstitutional on itsface or as applied to a set of facts. But, a judge cannot so hold ifthe only basis for that judgment is his or her personal,philosophical, or moral leaning. So too, a judge's strong beliefthat the legislature has made a grave error of public policy is nota valid legal reason for declaring an act unconstitutional. Publicpolicy is a legislative function, not a judicial one, and if courtsTHE JOURNAL OF APPELLATE PRACTICE AND PROCESSinfringe upon this legislative function by judicial fiat, decision,or opinion, it is just as surely a violation of the separation ofpowers.This basic respect for the separation of powers extendsacross a wide range of legal issues that are constantly before thecourts-the right to die, abortion rights, and the death penaltybeing the most obvious. To uphold the law-any law-when theopinion of the majority of the citizens within a jurisdiction maybe against it, is extremely difficult. The situation is often mademore difficult by other factors that may influence a judge,including his or her education, background, experience, race,creed, color, and gender. As if moral and philosophical leaningsare not enough, many state judges have political considerationsadded to the mix. Clearly political considerations like these haveno better place in the decisionmaking process than philosophicalleanings or moral beliefs. They need to be set aside, if notdisregarded entirely. For a judge to react by holding lawsunconstitutional on moral, personal, or political grounds, ratherthan for legal reasons based on the rule of law, is wrongprecisely because it violates the basic premise of that rule.However, because of the myriad ways judges get their jobsand stay there, they can easily lose sight of where their dutiesand obligations lie. Are we representatives of the people or ofthe law? If we are the people's representatives, does that meanwe must rule according to beliefs and opinions of the majority atany given time, or do we rule according to the law as it has beenestablished, enforced, and interpreted by the legislative,executive, and judicial branches? I believe that most would say,and correctly, the latter.But why? Surely judges are part of the government as wellas the society in which they live, and, as such, must show someaccountability to those over whom they exercise judgment. Thatis true enough, but once a judge rules on personal beliefs or acommunity's belief on what the law should be or what theConstitution means, the collapse of the entire system is a realpossibility. Assumption of the functions of one branch of4. In any event, when considering the political implications of judging, one thingseems clear, at least to me: Whenever getting or keeping a job, any job, becomes moreimportant than doing it, the job is not worth having in the first place, even the job of beinga judge.CONSCIENCE, JUDGING, AND CONSCIENTIOUS JUDGINGgovernment by another branch of that same government is arecipe for that collapse. There are no more checks and balances.One of the branches becomes most powerful, and it does nottake long for that branch to assume the entire function ofgovernment, including the justice system. In my opinion, thefact that we have an independent and separate judiciary is theprincipal reason this republic has lasted over 200 years. No otherdemocracy in history before us has accomplished that. Somehave argued that dividing the government into separate brancheswith separate but overlapping functions cannot work, butmiraculously it has and it does.The independence of the judiciary, the power and authorityto make judgments independently of outside forces, is mostprecious. The ability to make those judgments independently ofinside forces is just as precious. Once a judiciary succumbs tothe noise from without or within, the validity, character, andintegrity of the judiciary changes. Those judgments are nolonger based on the rule of law established over a long period oftime by legislative, executive, and judicial decisions, but on whoor what is the loudest at the time.Clearly, judges have the duty and responsibility to makerulings, decisions, or write opinions that reverse, amend,modify, or eliminate as unconstitutional any law that may belawfully challenged in the courts. It is just as clear, though, thatthey must make that decision based on the substantive andprocedural law, and on nothing else. If a judge cannot find aprecedent, or simply cannot in good conscience apply a law, thatjudge can always resign-in fact, that may be the onlyalternative.Is there a difference in this principle depending upon thelevel of court upon which a judge sits? At the trial level,intermediate appellate, or supreme court level, the basicprinciple remains the same: Judges must interpret and apply thelaw pursuant to the applicable substantive and procedural rulesas the judge or justice believes them to be.However, there are some differences in the principle'spractical application. If a trial judge faces a problem ofconscience, he or she must remove himself or herself from theproblem by resignation or recusal. At the appellate level, thejudge or justice can dissent or specially concur in the opinion.THE JOURNAL OF APPELLATE PRACTICE AND PROCESSFor example, in Weber v. Kaiser Aluminum & Chemical Corp.,5Judge Gee of the United States Court of Appeals for the FifthCircuit followed the mandate of the Supreme Court of theUnited States when they reversed a judgment the Fifth Circuithad previously affirmed. He said the following: "Subordinatemagistrates such as I must either obey the orders of higherauthority or yield up their posts to those who will. I obey, sincein my view the action required of me by the Court's mandate isonly to follow a mistaken course and not an evil one."6 Had hedeemed the Supreme Court's course "evil," meaning animmoral order or holding he could not follow in goodconscience, I presume his only course of action would have beenresignation.In addition, because they are more removed physically andpractically from the case and its participants, it is generallyeasier for an appellate judge to affirm or reverse a sentence or ajudgment from a lower court. The trial judge acts directly-ordering, ruling, finding facts, making conclusions of law,entering judgments, sentencing defendants convicted of crime.Appellate courts either affirm, reverse, or modify. They make nofindings of fact, but rule only upon the propriety or legality ofwhat was done before. The old analogy is that the trial judge isthe general of the battlefield; he or she moves the troops, directsthe parties, charges the jury, and conducts the trial. Theappellate judges are those people who remain hidden in thebushes while the battle rages only to show themselves after thesmoke has cleared to systematically "shoot the wounded."Appellate judges never have to look the trial participants in theeye when an opinion is rendered. More importantly, it takesthree votes on my five-member court to have a decision, not justone. There is a real and practical comfort in numbers and in asharing of responsibility for the decision. The decision is muchless personal and much less onerous. If an appellate judge orjustice disagrees, he or she can dissent. If he or she agrees withthe result, but differs on the reasons and analysis of the majority,or for any other reason, then a special concurrence is appropriateand should be filed.75. 611 F.2d 132 (5th Cir. 1980).6. Id. at 133.7. For example, I specially concurred in a recent death penalty case before our court:CONSCIENCE, JUDGING, AND CONSCIENTIOUS JUDGINGThere is no doubt that the business of judging in thisconstitutional system, in which the rule of law prevails, isdifficult at best. It has never been easy to apply the law freefrom any personal, religious, or philosophical beliefs. Somehave argued it cannot be done because it is a contradiction at itsworst or a paradox at its best. However, a judge in our systemmust be able to set aside any and all of these factors in thedecisionmaking process. If the judge cannot do this and, mostimportantly, knows that he or she cannot, resignation may be theonly remaining option.I concur in both the analysis and result reached in this opinion because it islegally correct. It is also solidly based on the precedents of this court as well asother federal and states courts.I write specially to state that I am opposed philosophically and practically tothe death penalty. I personally believe it to be a bad public policy. However,public policy is solely within the legislature's domain and this court is powerlessto change it unless the statutory law underlying the policy is declaredunconstitutional.For the reasons set out in the opinion, the arguments advanced by thedefendant do not convince me or the court that the death penalty statute in NewMexico is unconstitutional. However, those same arguments firmly convince mepersonally how truly flawed such a public policy is.Since it is the duty and responsibility of a judge to interpret and apply the lawto the facts of a case free of any personal or philosophical leanings or beliefs, Ispecially concur.New Mexico v. Clark, 990 P.2d 793, 821 (N.M. 1990) (Franchini, J., concurring). If I hadbelieved the death penalty to be immoral or evil, I probably would have recused myselffrom the case. I would not have been able to dissent because if the reasons for a dissent arepurely moral and philosophical rather than legal in nature, they would not constitute a validbasis for a dissenting opinion that proposes a different rule of law.

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Conscience, Judging, and Conscientious Judging

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