LINCOLN — A state lawmaker says several Nebraska judges have violated their own professional rules by lobbying against pending legislation.
But Nebraska's chief justice says the judicial code allows judges to offer input on bills that directly affect the courts.
The divided opinion is the result of a bill that could change how parenting time is awarded in child custody disputes. Sen. Russ Karpisek of Wilber prioritized the bill, which failed to get out of committee and won't be considered again this year.
Karpisek said about six judges lobbied on the bill, most of them in opposition. He declined to share with The World-Herald the judges' names or the emails they sent.
“I don't want to throw people under the bus, I just want people to stop hiding in the bushes and trying to kill this,” he said. “Let's work together on something everyone can agree with.”
Nebraska Supreme Court Chief Justice Mike Heavican made it clear he wasn't refereeing the current dispute. But he pointed to a provision of the Nebraska Revised Code of Judicial Conduct, which prohibits judges from consulting with members of the Legislature “except in connection with matters concerning the law, the legal system or the administration of justice.”
Under those limited circumstances, “judges can indeed partake in the discussion,” Heavican said.
The judges do partake. The Nebraska District Judges' Association says its membership services include hiring a lobbyist to support or oppose legislation affecting the association.
The bill that brought the issue to the forefront would potentially affect a vast number of cases in Nebraska. The proposal would require District Court judges to aim for equal parenting plans when deciding contested divorces.
Based upon the best data available, judges give sole custody of children to mothers in about 60 percent of cases and to fathers about 10 percent of the time. Joint parenting arrangements make up the rest.
Supporters of the bill say most children do better emotionally and academically when they spend significant time with both parents.
Opponents argue that judges should continue to decide parenting time based on the needs of the child rather than the desires of the parents. They say shared arrangements can subject children to greater trauma or abuse when parents argue nearly every time they come into contact.
In the Judiciary Committee, a recent motion to kill the bill deadlocked on a 4-4 vote. Committee Chairman Sen. Brad Ashford of Omaha said there are no plans to discuss the bill again this year.
Disappointed that the legislation won't get a floor debate, Karpisek recently threatened to filibuster a different bill for judicial raises. He eventually backed off, but not before he stated why he was upset.
A Hastings attorney who supports the so-called “shared parenting” bill recently sent a letter of complaint to Heavican, the chief justice. Chris A. Johnson's letter asserted that judges must keep their gavels out of the Capitol halls.
“This lobbying raises serious constitutional separation of powers and judicial ethics issues,” he wrote in the April 29 letter.
The Supreme Court has ruled in past cases that enacting laws and setting public policy are the sole function of the Legislature. The judicial branch's role is to interpret the law.
With that in mind, Johnson said he thinks the judiciary can properly share input with lawmakers on issues such as court staffing, budgets and related matters.
“But on matters that govern the substantive rights of litigants, I cannot see any instance where a member of the judicial branch may properly lobby the Unicameral,” he wrote. “I believe that crosses a line.”
He pointed to another section of the judicial code, which says judges should not engage in activities that would appear to “undermine the judge's independence, integrity or impartiality.”
If a client seeking joint custody came before a judge who lobbied against the equal parenting bill, Johnson said he would expect the judge to disqualify himself or herself.
Heavican acknowledged that he had received Johnson's letter. He declined to respond to questions about it but said that when he answers the letter, he will direct Johnson to the judicial conduct code.
The chief justice also said individuals who believe a judge has crossed the line can file a complaint with the state's Judicial Qualifications Commission.
Requests for interviews with judges who lead the District Judges' Association were referred to their lobbyist, William Mueller of Lincoln.
He said the association took no position on the shared parenting bill. But he dismissed the idea that individual judges can't provide input to senators.
As a longtime lobbyist, Mueller said he's aware that senators frequently seek out the opinions of judges about pending legislation. Lawmakers and the people they serve benefit when judges are allowed to share lessons learned from professional experience, he added.
“I think when it comes to domestic relations matters, judges are clearly in a position where they have expertise,” Mueller said. “Why would we not seek their input?”
He also disagreed that it's an issue of separation of powers.
“If it were, the governor couldn't give input on legislation because that would be the executive giving input to the legislative,” he said.
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Joe works in the Lincoln bureau, where he helps cover state government, the Legislature, state Supreme Court and southeast Nebraska.