judgesonmerit.org

Incoming president of the N.C. Bar Association, Martin Brinkley, shared with Citizen-Times that halting legislation intended to return NC to a partisan judicial election system is a priority for the NC Bar. In his interview, Brinkley said, “Being a judge shouldn’t have anything to do with politics…It ought to do with deciding cases on the law and the fact. We do not favor going back to the old system.”

The NC Bar’s position is in response to Senate Bill 47, which is expected to be introduced to the House during special session in mid-July. The bill has also raised concerns among voting rights advocates for its provisions limiting the period of early voting and repealing same-day voter registration.  Another controversial provision of the bill outlines procedures for ballot positions ensuring that top spots go to Democrat and Republican backed candidates.

The debate surrounding SB47 highlights many of PMC’s concerns regarding judicial election. The NC Bar rejects the attempt to increase politicization of the judiciary; State Senator Tom Apodaca supports partisan races noting that “every party spends a ton of money” identifying candidates as Democrat or Republican; others decry ballot position gaming and increased obstacles to voting. While we agree that party identification, financial concerns, ballot position, and voter registration obstacles should not play any part in determining our judges, we also believe that merit selection is the better way to avoid these potential pitfalls inherent in judicial elections and achieve a fair, qualified and impartial judiciary.

Across the country, states continue to grapple with how best to ensure an independent and impartial judiciary. Two examples demonstrate why Merit Selection offers a better way to select judges.

Last week, the North Carolina House of Representatives voted 67-51 to restore partisan labels to judicial races.  As the Charlotte Observer reports,  ”The main justification for the change is that party labels help voters make decisions.”  But this rationale is contrary to the goal of selecting an impartial judiciary.

While it may be true that voters who lack the time, interest or opportunity to research judicial candidates may need “help,” offering a cheat sheet based on party politics offers little in the way of helping to select the most qualified judges.  Rather than expanding public education, encouraging a reductionist “vote democrat/republican” does the opposite. The North Carolina legislators fail to realize that choosing judges is not just about making a decision but how to best make that decision. When citizens vote for judges based on parties, they may find it  easier to vote but that does not make for a strong judiciary. Nor is Republican Representative Paul Stam’s statement that at least primaries “did a fairly decent job of weeding out the bad ones” particularly reassuring. We  shouldn’t just “weed out the bad ones,” we should use a system that is designed to choose the good ones.

In New Mexico, anger over alleged corruption involving governor appointed  judges has ignited the passion of some who want the state to return to partisan elections. The author believes that party affiliations affect how judges decide cases and argues that voters therefore are justified in basing their judicial selections on party politics. However, he misses the point: judges should not base their decisions on private political affiliations but on application of the law  and careful evaluation of the facts. Elections perpetuate rather than solve the problem of judges being swayed to decide a case based on political or  partisan views.

Merit Selection reduces  the influence of party politics by allowing anyone  to apply to be evaluated by the nominating commission.  No longer would partisan primaries determine the two candidates who compete for a judicial seat. While no judicial selection system is perfect, the real question is the system’s end goal. Rather than simply putting judges on the bench,  Merit Selection is designed to get the most qualified, fair,and impartial judiciary.

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.

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 in Pennsylvania.

A new public opinion poll in North Carolina show just how corrosive judicial elections are to public confidence in a fair and impartial judiciary. The poll, which was conducted by the North Carolina Center for Voter Education, and our friends at the Justice at Stake Campaign, ” finds that 94 percent of North Carolina voters believe campaign contributions have some sway on a judge’s decision, including 43 percent who say campaign donations can greatly affect a ruling.”

“Trust in the courts is eroded when judges have to dial for dollars from parties who appear before them,” said Bert Brandenburg, executive director of Justice at Stake, and we couldn’t agree more. Poll after poll after poll has shown that the public is convinced that the decisions of elected judges are influenced by campaign donations.

States have tried several ways to combat this perception. North Carolina has a first-in-the-nation system of public financing that allows judicial candidates (who can raise a small initial fund) to run for the bench without having to assemble huge campaign warchests. Recently, court rules in New York were modified to prevent court administrators from assigning a case to a judge if any of the lawyers or participants in the case donated $2,500 or more in the previous two years.

Our opinion is that the best way to restore trust in the impartiality of Pennsylvania’s appellate courts is to relieve our appellate court judges and justices of the burden of campaign financing in the first place. If campaign donations don’t play a role in putting appellate judges on the bench, then the public doesn’t have to wonder if those donations had an influence on the way those judges rule. That’s why we believe Merit Selection is a superior solution.

Jack Betts at This Old State offers a quick peek at next year’s judicial elections in North Carolina.  He notes that “N.C. Court of Appeals Judge Bob Hunter is announcing his plans today to run for the N.C. Supreme Court next year.”  What’s interesting is that he has to further identify the candidate:

There may be some confusion in this race because there are two Bob Hunters on the N.C. Court of Appeals. The Bob Hunter running for Supreme Court is Robert C. “Bob” Hunter, who is a Democrat from McDowell County. The other is Robert N. “Bob” Hunter, a Republican from Greensboro in Guilford County who was elected to the Court of Appeals in the 2008 election.

Judicial elections often depend on name recognition, so making sure voters know which Bob is running is important.  But another source of confusion here is that the party identifications Betts uses to help distinguish the judges won’t be available to voters:

Of course, N.C. appellate judicial elections are non-partisan and ballots do not indicate which political party a candidate is allied with. But the parties themselves usually try to make sure voters know of their political inclinations.

So much for nonpartisan elections.

The Star News of Wilmington, North Carolina reports that Superior Court (trial level court in North Carolina) Judge Jay Hockenbury will run for reelection next year but will not accept campaign contributions:

The judge, a 61-year-old Republican in a mostly Democratic district, said contributions from attorneys, developers or others with special interests could give the impression of influence over a judicial decision. Hockenbury said it’s never been an issue, nor does he want it to be.

Although the judge did raise money in his previous campaigns, he has decided not to this time around.  It’s interesting to note that in his initial election, Judge Hockenbury raised about $22,000.  So, we’re not talking about Caperton-size contributions here.  But still, the judge recognized that the role of money in judicial elections creates dangerous perceptions.

Judge Hockenbury has chosen one solution to the problem of money in judicial elections. But we think a broader, systemic solution that would get judges out of the fundraising business altogether would be even better.

An editorial in the News & Record of Greensboro, North Carolina examines the Caperton decision and how it impacts a state like North Carolina that uses a system of public financing for its judicial elections:

Although most statewide judicial candidates participate in a public campaign financing system, that’s not a safeguard against big-money influence. Blankenship contributed only $1,000 directly to Benjamin’s campaign. He gave $3 million for so-called independent expenditures on Benjamin’s behalf. The same thing could happen in North Carolina.

The editorial contends that the problem stems from the system of electing judges.   John Martin, chief judge of the N.C. Court of Appeals and chairman of the Judicial Standards Commission, concurs.  According to Judge Martin, “‘The real problem is the election of judges.’”

Following Judge Martin’s lead, the editorial argues:

[Judge Martin is] right. Political donors influence governors, legislators and other elected officials. Judges are expected to act with greater impartiality, and they should be challenged when there are reasonable questions. But money impacts elections, and judges may not be blind to where it comes from.

As long as North Carolina holds judicial elections, it may create opportunities for situations like the West Virginia case.

We agree completely.  Elections will always cost money — even when a viable public financing system is in place.  The answer is to get judges out of the fundraising business.  Merit Selection is the way to accomplish this.

A commentary piece in the Charlotte Observer calls for a change in the way North Carolina selects judges.  Currently, North Carolina uses nonpartisan elections to select judges, although many first reach the bench through gubernatorial appointment and then run for reelection.  The author notes:

Many lawyers who would be highly desirable candidates for judgeships are understandably unwilling to put their careers and reputations at risk by running for the bench under our present system. The public is the ultimate loser. We lose our expectation that those who mete out justice will be chosen from among the best of the best.

The solution proposed is a Merit Selection system, whereby “nonpartisan panel[s] of experienced, respected lawyers and non-lawyer citizens[would] examine the qualifications of those who wish to be considered for a. . . judgeship and . . . certify to the governor those who appear professionally and temperamentally suited to become a judge.” The Governor would be required to appoint from those lists.  There would be regular performance evaluations, the results of which would be publicized, and each judge would stand before the public in uncontested retention elections.

This makes sense to us, and is similar, though not identical to, the proposals we have supported to change the way Pennyslvania’s appellate judges are selected.  As the author notes: “For such change to succeed, respected civic leaders from outside the legal profession must be willing to join with lawyers in insisting that our legislature address this problem.”  We hope that will happen here, and we wish them luck in North Carolina.

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.

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.