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Archive for August, 2011

Aug 31 2011

Minnesota State Representatives Debate on Judicial Selection Reform

In a blog entry, Shannon Fiecke of the Shakopee Valley News reports on the recent debate between Minnesota State Representatives Mike Beard and Glenn Gruenhagen on judicial selection reform.

“I can’t think of many [topics] more relevant to maintaining a free and just society than how we select and re-elect judges,” Feicke comments. And while she feels that Minnesota’s judges are well-regarded, she observes that the participants in the debate all “agree the system for selecting them is broken.”

Rep. Beard, joined by Ryan Kelly of the Coalition for Impartial Justice, argued for a redesign of Minnesota’s judicial selection process. He proposed that judicial appointments and retention elections replace Minnesota’s present system of contested elections. Beard’s opponent, Rep. Gruenhagen, maintained that only minor fixes to the contested election system are needed.

Fiecke acknowledges that there are “strong arguments being made on both sides of the proposed reform,” and praises the Republican party-hosted event, noting that, “any large reform like this deserves consideration and robust debate because whatever change is made will likely stick for generations to come.” However, the issue of judicial selection reform is truly bipartisan, and Fiecke “hope[s] to see a future forum sponsored by both the local DFL and GOP.”

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It is vitally important to educate voters on different options for judicial selection, so that they might choose for themselves the best system for their state. We are pleased to see legislators engaging the public on the matter of judicial selection reform, and hope that more state leaders will follow Beard and Gruenhagen’s example.


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Aug 30 2011

“We’re Just Judges”

The Rome News-Tribune reports that two members of the Georgia Court of Appeals, Judges Stephen Louis A. Dillard and Judge Keith R. Blackwell, will be running for election in 2012. Both judges were appointed by former Governor Sonny Perdue last November. However, the judges clarify that the political party of their appointing governor does not define them as judges. Dillard says, ““The reality is we’re not Republican judges. We’re not Democratic judges. We’re just judges.” Blackwell agrees that partisan affiliations should not, and do not, affect how a judge decides a case. “I can tell you uniformly on our court I am confident that there is not one of the 12 judges who would look at a case and ask how would the Democrats like this case to come out or how would the Republicans like this case to come out in deciding the case,” says Blackwell.

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Unlike Pennsylvania, which selects all judges through partisan elections, Georgia selects its judges through nonpartisan elections. While taking the party label off the judicial ballot might help, candidates may still be labeled as “Republican” or “Democrat” by the public, because the public is accustomed to an election system based on party politics. Elections are simply not the appropriate vehicle for judicial selection if we want judges chosen based on ability and not on other factors that have no bearing on how a judge will do his/her job, factors like party affiliation, county of residence, and ballot position. As Dillard says, “Ultimately as a judge your job is a very simple one, it’s not always easy, but it’s to interpret the law. That’s your role.”

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Aug 25 2011

Philadelphia Inquirer Interviews PMC’s Lynn Marks on Merit Selection

Following the announcement that the Pennsylvania Supreme Court will allow some of its oral arguments to be televised, Philadelphia Inquirer reporter Amy Worden interviewed Pennsylvanians for Modern Courts Executive Director Lynn Marks about the need for further reform of the Pennsylvania courts generally and the judicial selection system specifically.

Marks highlighted the problems inherent in electing judges, noting, “judicial races have only gotten more expensive, more political, and nastier.” She promoted Merit Selection of appellate judges as an alternative to the present system of popular judicial elections, observing that Pennsylvania is one of only six states that elect all judges in partisan elections. Marks explained that Merit Selection, a hybrid of appointment and election, is “designed to get the most qualified, fair, impartial judges” on the bench and noted that “it gets judges out of the fund-raising business.”  Marks also noted that a 2010 poll revealed that 93% of Pennsylvanians want the opportunity to vote on whether to change the way we select appellate court judges.

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Further information about Merit Selection is available here.


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Aug 23 2011

Justice Does Not Have a Price

Published by under Judicial Elections

Indiana’s reports that a judicial campaign fundraising flier appears to equate financial donations with favorable rulings. The flier advertises an event to support the re-election of Marion Superior Court Judge Becky Pierson-Treacy. Among the “suggested contributions,” are “$150 ‘Sustained’”; “250 ‘Affirmed’”; “500 ‘So Ordered’”; and “$1,000 ‘Favorable Ruling’”.

According to former Judge Gary Miller and others, the flier gives the impression that justice is for sale. As Miller states, such a flier, even if it were a joke, is not appropriate for a judicial campaign. A spokeswoman for the Indiana Supreme Court agrees; “We require our judges to act in a manner that promotes confidence in the judicial branch. They must always act with fairness and impartiality. Even the appearance of impropriety, or the appearance that something is unfair, is against the judicial canons.’” Indiana has reason to be upset by this flier, particularly when the public may have already suspected a connection between campaign fundraising and judicial rulings. The advertised fundraiser has since been canceled.

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Aug 18 2011

An Important Step

The Chaska (MN) Herald today announced a public debate between two state leaders about whether to change the way judges are selected.  State Representatives Mike Beard and State Senator Julianne Ortman, both Republicans, have different views on the subject.  Beard, who favors replacing elections with an appointment and retention election system, argues “Minnesotans take their elections and their judiciary seriously, and they are frustrated with the lack of information available to them so that they can make intelligent and informed decisions.”  Ortman is in favor of maintaining the current electoral process.

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In our minds, the important thing is that people in Minnesota are getting the opportunity to hear about the issue and make their own opinions heard.  It’s an important step in the process of deciding whether a state is using the best system to select judges.  We hope the people of Pennsylvania will have the chance to hear their leaders discuss the issue of judicial selection and ultimately decide for themselves whether there is a better way to choose judges.

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Aug 16 2011

Recusal Issue with a Twist

Here’s a recusal question related to judicial elections, but one with a twist. What happens when a sitting judge or justice pays or has paid a lawyer or law firm for help in an election case and that lawyer or firm appears before the judge? That’s the issue facing Wisconsin Supreme Court Justice David Prosser.

According to the Milwaukee Journal Sentinel, Prosser paid $75,000 to the Troupis law firm for representation in the recent recount election. Jim Troupis, head of the Troupis law firm, is scheduled to argue before the Wisconsin Supreme Court in a major First Amendment case in September. Should Prosser recuse?

Leading ethics experts told the Milwaukee Journal Sentinel that he should. New York University School of Law professor Stephen Gillers explained that “Prosser shouldn’t hear the case because Troupis’ work was so important to keeping Prosser on the bench and because it occurred so recently.”

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But when asked a few months ago, Prosser responded that he thought it would be okay to sit on the case. The director of his campaign, Brian Nemoir, recently told the newspaper that “Prosser planned to stay on the case and could remain impartial.”

Judges don’t live in a vacuum and certainly have many ties to other lawyers before (and after) they join the bench. But should a judge preside over case sof those who were very helpful in getting or keeping him on the bench? Elections raise more than questions about monetary campaign contributions, and this case highlights another reason to find a better way to pick judges.



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Aug 11 2011

ABA adopts new guidelines on judicial recusal

Published by under Merit Selection

The ABA has adopted new guidelines urging states to reform their procedural rules on judicial qualification to reduce the influence of election spending in the courtroom. The ABA’s suggestions include new disclosure requirements for both direct & indirect spending on judicial races and a swift appeals process for recusal motions. “No one should be a judge in his or her own case,” said William Weisenberg, one of those who drafted the resolution. The guidelines are deliberately broad, in order for states to craft their own rules on judicial recusal. Several states, including New York and Oklahoma, have already rewritten their rules governing judicial recusal/disqualification in cases involving campaign contributors.

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Over the past decade, Pennsylvania’s judicial races have been among the most expensive in the country, and Pennsylvania remains one of the few states that still use partisan elections to select all their judges. Given this, a new rule governing when a justice or judge must recuse themselves from a case involving a campaign donor is essential. Failing to act would weaken the public’s confidence in the court system and may even allow donors to influence cases before the court. The ABA’s guidelines are a call to action in the struggle for fair and impartial courts and we hope that Pennsylvania will take heed.


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Aug 08 2011

Tennessee lawyers, business organizations agree: Keep Merit Selection!

Published by under Merit Selection

When it comes to judicial elections, trial lawyers and big business are almost always on opposite sides. In Tennessee, though, the two groups are uniting to oppose a shift away from merit selection for the state’s high court. Tennessee’s constitution mandates that state judges “shall be elected by the qualified voters of this state.” While the state Supreme Court has ruled that retention elections satisfy this requirement, opponents say that the current system is unconstitutional. Therefore, they are attempting to prevent the reauthorization of TN’s judicial nominating commission and to replace the current systems with contested elections for supreme court justices. Business groups such as the Tennessee Chamber of Commerce and Industry, the TN Business Roundtable and Tennesseans for Economic Growth have all rallied to defend the current system, citing the importance of predictability and stability in the judiciary for businesses in the state.


Tennessee lawyer’s groups, such as the Tennessee Bar Association and the TN Association for Justice, have also indicated their support of the current system, saying “We believe the (present) process is the best possible way of selecting justices.” Both sides hope to avoid the heavy costs associated with judicial selection: over 268 million was spent on State Supreme Court judicial campaigns over the past decade, according to a recent study by the Brennan Center for Justice.. Senate SpeakerRon Ramsey, who is pushing a compromise measure that would amend the state constitution to specifically provide for merit selection, wishes to preserve merit selection, rather than “letting money buy the elections.” Tennessee’s merit selection system has worked well
in the past and we at hope that Tennessee will continue to use merit selection for their Supreme Court.
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Aug 05 2011

Vanzetta Penn McPherson Speaks Out in Favor of Merit

Published by under Judges,Opinion

In a recent Montgomery Advertiser editorial, Retired U.S. Magistrate Judge Vanzetta Penn McPherson advocates a transition from judicial elections to Merit Selection of judges. Her critique of judicial elections follows the resignation of Alabama Chief Justice Sue Bell Cobb. McPherson seconds Cobb’s concern that partisan elections of judges “perpetuate the public perception that judges are selected more on campaign contributions than on ability.”

McPherson distinguishes the role of judges from governors and legislators. “The executive and legislative branches are deliberately partisan, and service in those branches is infused with political ideology.” In direct contrast, judges should rule objectively, without concern for party politics or personal ideologies, says McPherson. “It is beyond ironic that public servants summoned to administer justice blindly are expected to see clearly the differences between rich and poor, liberal and conservative, Christian and non-Christian, donkey and elephant.”

McPherson faults judicial elections beyond the involvement of money and politics. Rather, she identifies the crux of the problem to be the lack of emphasis on judicial qualifications. McPherson describes the intellectual challenges of serving on the bench and the need for judges with significant experience, strong academic achievement, effective management skills, and reasonable temperance. According to McPherson, Alabama’s codified qualifications fail to measure up. And before 2009, she says judicial campaigns were “more likely to highlight a candidate’s religious faith, church attendance and political ideology than the candidate’s abilities to fulfill the weighty tasks of analyzing legal issues and resolving disputes under the law.”

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McPherson believes Merit Selection is “in the public’s best interest,” because it prioritizes a judge’s qualifications and temperament. We support her fight to change Alabama’s system of judicial selection and urge Pennsylvania to heed her call.

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Aug 02 2011

Birmingham News urges Alabama to enforce law limiting judicial campaign contributions, consider merit selection

Published by under Merit Selection

Saturday’s edition of the Birmingham News featured an editorial urging Alabama to enforce its sixteen-year-old law regulating judicial campaign contributions. The law requires that judges recuse themselves from cases in which a party or their lawyer donated $2000 or more to the judge’s campaign ($4000 for appellate judges). However, the law has not been enforced due to a standoff between the Alabama Supreme Court and the state Attorney General’s office: the Supreme Court refuses to write the rule required for the law to take effect, saying that the law requires preclearance from the U.S. Justice Department (due to Section V of the Voting Rights Act). However, the Attorney General has refused to seek pre-clearance, demanding that the judges author the rule.

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A three judge-panel in D.C. recently refused to hear a challenge to the law, writing that the law had not harmed the plaintiff in any way. The judges wrote that the law was not likely to be enforced in the near future and that “until one of these two Alabama political institutions changes its policy, it is at the least a game of political chicken, with both players staring (or perhaps winking) at each other.” During the past decade, Alabama has had the most expensive judicial elections in the country, and the law would minimize the effect of campaign cash on the courts. Given the influence of campaign contributions on the Alabama judiciary, the editorial suggested that the state either enforce the law, or move to merit selection for statewide judgeships.


Enforcement of the law would indeed be a welcome step in the right direction and would hopefully curb the costs of Alabama’s judicial elections. However, it may not be a cure-all: the law does not require recusal for third-party spending. As we have seen recently in Wisconsin, even where direct contributions are limited, independent expenditures may still drive up the cost of judicial elections, enabling mud-slinging on both sides. Merit selection has been implimented successfully in several of Alabama’s counties and state-wide merit selection is a solution that Alabama should explore.


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