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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Mar 23 2011

Public Financing Challenge at The Supreme Court

Published by under News,Our Perspective

On Monday, 3/28, the Supreme Court is scheduled to hear oral arguments in McComish v. Bennett, a case that challenges a portion of Arizona’s Citizens Clean Elections Act. The ruling could have serious consequences for states that use public financing to allow elected judges to run for the bench without having to raise campaign funds.

The challenged part of the law allows a publicly financed candidate, facing an opponent spending private funds, to receive an extra infusion of public money if their opponent’s spending goes over a certain amount. This “trigger provision” ensures that publicly financed candidates won’t be at a disadvantage, limited to a certain level of spending, while their privately financed opponents are free to spend as much cash as they can raise.

At issue is whether or not the provisions represent a limitation on the rights of candidates who choose not to accept public financing. According to our partners at the Justice at Stake Campaign:

[a] federal judge declared the Arizona provision unconstitutional, saying it violated the First Amendment because it caused candidates without public funding to limit their campaigning, fundraising and spending of campaign money. The Ninth U.S. Circuit Court of Appeals disagreed, saying the provision imposed “only a minimal burden on FirstAmendment rights,” that there was no evidence of it chilling free speech rights, and that it was needed to fight a perception of corruption.

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Four states – North Carolina, New Mexico, Wisconsin and West Virginia – have turned to public financing plans, to help alleviate the need for campaign fundraising by appellate judge candidates. A ruling against the Citizens Clean Elections Act would likely invalidate similar trigger provisions contained in all four of those plans. Candidates who opt into public financing in future judicial elections will be forced to limit their spending, while candidates who choose to raise their own funds will be free to spend as much as they can amass. How many aspiring appellate judges will choose public financing, knowing that they won’t be able to respond if their opponents outspend them?

While we respect any attempt to mitigate the influence of campaign spending on the outcome of judicial elections, we think that a better solution is to completely eliminate campaign financing as part of the process. Let appellate judges reach the bench based on their experience, skills and qualifications, not on the back of a huge campaign war chest. That’s why we support Merit Selection for appellate judges i

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Jan 28 2011

Politics On the Docket in Illinois

The Supreme Court of Illinois recently ruled that former White House Chief of Staff Rahm Emanuel satisfied the somewhat unclear residency requirements for inclusion on the ballot in the race for Mayor of Chicago. In covering the court’s deliberations on the question, the Chicago Tribune points out the inherent contradiction of an impartial judiciary that’s selected by partisan voting:

The Illinois Supreme Court justices deliberating the fate of Rahm Emanuel‘s bid for Chicago mayor are sworn to uphold the state constitution without regard for special interests, yet that same document requires them to run for election in an inherently political system.

While much of the high court’s work is done in relative anonymity, the pedigrees of the justices are fodder for debate whenever they tackle high-profile cases with political consequences — from deciding a close governor’s race to ruling on the district maps that determine which party will control the Legislature. (emphasis added)

The appellate courts in Pennsylvania are burdened with the same contradiction. Judges and justices are required to raise money, cultivate political capital, and campaign for votes. But after the election is over, they’re expected to put all of that aside and rule impartially, even on matters involving the political supporters and financial backers that made it possible for them to reach the bench in the first place.

As long as our appellate judges are forced into the business of politics, the taint of possible influence will linger over even their fairest decisions. And otherwise qualified legal minds, lacking the political clout to wage a successful campaign, have little hope of reaching the bench. Merit Selection would enable those judges to achieve their positions based on their qualifications, rather than their political skills and fundraising savvy. That’s why we think it’s a better way for Pennsylvania to choose its appellate judges.

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Sep 21 2008

Philadelphia Inquirer: Merit Selection’s A Good Solution

In an editorial Saturday, the Philadelphia Inquirer praised Merit Selection as a good solution to the problems inherent in electing judges:

What citizens already have decided about judicial elections is that they’re confusing at best, with legal qualifications playing a minimal role in who wins. At their worst, judicial elections are tainted by what Supreme Court Chief Justice Ronald D. Castille calls the “corrosive effect of money.” An appointed judiciary with voter oversight is the remedy.

The editorial also pointed out the errors of those who claim Merit Selection would take something away from the voters:

Opponents of the merit-based appointment system argue that it disenfranchises voters. But the hybrid approach proposed for Pennsylvania would give voters their say.

Once appointed, Supreme Court justices – and judges on the Commonwealth and Superior Courts – all would have to pass muster with voters after an initial period on the bench. To continue in office, these judges would have to win a yes/no retention election. . . .

Of course, the switch to an appointed system requires voter approval through a constitutional amendment, once the General Assembly approves a plan over two legislative sessions. “So part of our pitch is: Let people vote,” says Lynn A. Marks of the Pennsylvanians for Modern Courts reform group. Indeed, how can critics of merit selection deny voters their input?

That’s a question we would love to hear answered.

The editorial is worth a full read, because it offers a good recap of the reasons we need to find a new way of selecting appellate court judges.  We hope the people of Pennsylvania will get the opportunity to decide whether to do so.

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Aug 13 2008

Press-Register On Improving Alabama Appellate Courts

Published by under Merit Selection,Opinion

A recent editorial in Mobile’s Press-Register discusses judicial salaries, standards of quality and requirements for getting a seat on Alabama’s appellate bench. To ensure that the quality of the judges on the bench consistently matches their relatively high salaries, the paper suggests abandoning judicial elections and switching to Merit Selection.

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[T}o improve the quality of the appellate courts... switch to a Missouri-style system of judicial appointment and voter retention. Choosing judges in nasty, lavishly financed partisan elections demeans the courts and discourages well-qualified people from pursuing a position on the appellate bench. If the state adopted the merit selection process included in the Missouri Plan, it's unlikely that judicial pay would outpace judicial quality.

Alabama is gearing up for an expensive state supreme court race this Fall, funded primarily by groups and individuals that spend a lot of time in court. We join with the Press-Register in the hope that the state will abandon big-money judicial elections, and make the switch to Merit Selection.

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Aug 08 2008

Tennessee Officials Committed To Renewing Merit Plan

During a recent trip to Memphis, Tennessee Governor Phil Bredesen expressed his continued commitment to renewing the “Tennessee Plan” for Merit Selection of the state’s judges. Governor Bredesen acknowledged that the current plan isn’t perfect, but he believes in it, and he’s working to preserve it.

The preservation of the Tennessee Plan is the vastly more important thing to me than any messing around or fooling around with the mechanics of the selection. I’d like to see it opened up. I’d like to see something like some additional selections… but preservation of the Tennessee Plan is a must-do for the state.

The governor also noted that other state officials, including Lt. Gov. Ron Ramsey and Tennessee House Speaker Jimmy Naifeh, support renewal of the Plan.

Memphis attorney Buck Lewis also expressed his opinion that the Tennessee Plan should be renewed. Lewis is the new president of the Tennessee Bar Association, and is a former judicial candidate that the governor had previously refused to nominate. But on the importance of the Tennessee plan, Lewis and Bredesen see eye to eye. “If you care about diversity and quality on our state’s appellate courts, you ought to care about us retaining the Tennessee Plan,” Lewis said.

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It’s good to know that these officials are committed to preserving Merit Selection of judges in Tennessee. We wish them the best of luck.

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Jul 31 2008

Horror Stories from the Campaign Trail: North Carolina and Kansas

Published by under Judges,Merit Selection,News,Opinion

Sometimes real stories are stranger than fiction and illustrate the problems with electing judges better than any scenario we could imagine. Here are some true horror stories drawn from current judicial elections in other states. We wish we could say this is a one-time feature, but we’re pretty sure we’ll have more horror stories to share as the campaign season continues.

Our first example comes from North Carolina where Bill Belk has decided to get back at the judge who ruled against him many times during his long and costly divorce. How? By running for that judge’s seat! There has been very little news about the race since the Observer article was published in June. But Belk is still on the ballot in an effort, in his own words, “to reform the system.” His claim doesn’t sound convincing to voters, one of whom dismisses Belk as a “rich guy with a law degree but little legal experience” who is clearly running a revenge campaign.

Case number 2 makes us wonder: does running for a judicial election make a person sacrifice the long-term friendships of those who won’t donate to the campaign? It appears so in Kansas, where Reginald Davis, seeking to be a county judge, texted the following message to some attorneys who were friends of his:

If you are truly my friend then you would cut a check to the campaign! If you do not then its time I checked you. Either you are with me or against me!

An ultimatum in quasi-military language? A physical threat? Someone so desperate to win the election that he’ll risk losing friendships? Davis has been ordered to cease and desist soliciting campaign contributions personally. And the text message was found to have violated part of the Kansas Code of Judicial Conduct.

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Judicial elections require lots of money. Belk has it and that’s why he can run for an office for which he is likely unqualified and in which he’s not all that interested, and it’s what Davis needs to be able to run. As these real life stories show, money and judicial selection just shouldn’t mix.

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Jun 23 2008

Don't Confuse the Interim Appointment Process with Merit Selection

Published by under Judges,News

Late last week, Governor Rendell nominated a new slate to fill interim vacancies on Pennsylvania’s appellate courts. From early reports, it seems likely that the new slate — Philadelphia Common Pleas Court Judge Jane Cutler Greenspan for the Supreme Court, Northampton County President Judge Robert A. Freedberg and McKean County President Judge John M. Cleland for Superior Court, and Philadelphia lawyer Johnny J. Butler for Comonwealth Court — will be confirmed in the near future. This follows months of political wrangling and the Senate’s rejection of the Governor’s first slate of nominees.

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PMC/PMCAction Executive Director Lynn Marks warns: “This interim appointment process should not be confused with what is known as a merit selection system just because both require nomination by the Governor and Senate confirmation. . . . They are both very different and the jockeying we have seen for the last few months is another example of why we should change the way we appoint appellate judges.”

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Jun 23 2008

Tennessee Governor: Improve, Don't Scrap, the Tennessee Plan

Merit Selection of judges in Tennessee involves a 3-part system of Merit Selection, judicial performance evaluation, and retention elections. Judges are nominated for gubernatorial appointment by a 17-member Judicial Selection Commission (14 lawyers and 3 non-lawyer citizens). Appellate judges stand for retention election every 8 years.

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The Tennessee Plan has been in place since the early 1970s and is also known as the “Modified Missouri Plan.” It’s “winding down” this year, because the Tennessee legislature failed to reauthorize it, mostly because of allegations of too much secrecy in the meetings of the Judicial Selection Commission.

But the way to address the problems is not to scrap the Tennessee Plan and replace it with elections, says Governor Phil Bredesen — and we agree. Tennessee risks throwing the baby out with the bathwater. As Governor Bredesen suggests, perceived problems of secrecy and alleged “back-room dealing” can be addressed by amending the statute to require additional public meetings of the Commission. As the Governor explains, putting a worse system in place is not the answer:

The issue is that when you have state-wide elections, basically for appellate judges, the only people who care about those are people with very narrow special interests. They’re expensive elections because they’re state-wide, and I just think you’d have this scramble to have, you know, every interest out there whether it be business or trial lawyers or anybody else trying to elect their judges and we’d have a vastly worse system than we have today.

The problem in Tennessee isn’t secret meetings in smoke-filled rooms. That flimsy accusation is mostly a “smokescreen” itself for the special interests who seek to inject even more politics — and potentially millions of dollars — into Tennessee’s judicial selection system.

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Jun 12 2008

Beware Of Misinformation

Despite our best efforts, Merit Selection opponents persist in spreading misinformation about what Merit Selection is, how it works and why supporters wish to implement it for Pennsylvania’s appellate courts.

Opponents latch onto buzzwords like “democracy” while totally ignoring that democracy includes giving the public the chance to weigh in on important issues like how we select appellate judges. Those who think about these issues understand that you can’t cloak yourself as a protector of democratic values while fighting against allowing the people to decide the best way to select appellate judges.

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It’s not democratic to block a public referendum on a critical issue of governance and deprive the people of the opportunity to vote on the question. It’s not democratic to scare the public into thinking the issue at hand is something different than a choice about whether to change the process for picking judges.

Reasonable people can and do disagree about how Pennsylvania should choose appellate judges. We’re ready and willing to engage in discussion and debate about this, for education is the only way to make an informed decision on this critical issue.

We urge you to be part of these discussions and to beware of misinformation, especially when it comes cloaked in pretty language about democracy.

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