In 1995 the Texas legislature passed the Judicial Campaign Fairness Act. It was enacted
due to too many scandals and too much money in Texas Supreme Court elections. The Act “imposes mandatory caps on contributions and voluntary limits on expenditures in judicial races.” The voluntary provision is thought to be effective because of peer pressure, and because if one candidate does not comply, the other need not comply.
According to an article in the Texas Tribune the act is being put to the test by a Republican runoff election for a district court seat in Marshall, Texas. Brad Morin is running against incumbent Judge William Hughey. Brad Morin “told the Texas Ethics Commission he would reject the voluntary limits when he named his treasurer for the race in August 2011.” This has caused both candidates to file lawsuits, ethics complaints and counterclaims against each other.
If more candidates follow in Brad Morrin’s footsteps and choose noncompliance of the voluntary limits, Tom “Smitty” Smith, the Texas director of the political watchdog group Public Citizen stated it could be “disastrous to the independence of our judiciary.” Morrin’s actions have not only drawn attention from a political watchdog organization, but also from state senator Rodney Ellis. Ellis wrote,
I am very concerned that we will see a flood of money that further erodes Texans belief in a fair and equitable justice system, . . . We’re moving back towards a Wild Wild West election system and that is not a good thing.”
, Judicial Campaign Fairness Act
Election season brings campaign mishaps, and judicial elections are no exception. Recently, three judges, two from Ohio and one from Texas, have been accused of violating campaign laws.
Ohio Common Pleas Court candidate, Judge Kathryn Michael, was fined for accepting an improper campaign donation from her ex-husband and for improper wording on her campaign material. The Ohio Supreme Court’s Board of Commissioners on Grievances and Discipline conducted a
hearing and concluded “by clear and convincing evidence” that the judge had violated the Ohio Code of Judicial Conduct. Michael had previously repaid the $25,000 contribution from her ex-husband and corrected her misleading campaign materials. As part of the Board’s ruling, she was required to pay $2,500 in attorney fees and court costs associated with the disciplinary complaint.
Also in Ohio, the validity of statements made in state Supreme Court candidate and former judge William M. O’Neill’s campaign materials was called into question. Originally, a five-judge panel determined that Mr. O’Neill misrepresented himself as a current judge in his campaign materials. However, that decision was overturned by a new panel that was created by the Ohio Supreme Court in order to keep itself out of campaign conflicts arising out of races for the Supreme Court bench. The panel determined that, while misleading, the claims in Mr. O’Neill’s campaign materials were not false under the Judicial Code of Conduct.
In Texas, 71st District Judge William Hughey has filed three complaints against his opponent, Brad Morin, alleging ethical violations. Judge Hughey’s first complaint was filed last week, and another two complaints were filed on Tuesday. Hughey claims that Morin has accepted thousands of dollars in illegal campaign contributions.: “As a candidate for district judge, Mr. Morin has failed to follow the law and has run his campaign in an unethical and illegal way.” Mr. Morin said that he contacted the Texas Ethics Committee to obtain the complaint, but he was told that no copy of a new complaint was available. Mr. Morin responded, “I’m trying to figure out how to reply to something that I haven’t seen.”
With scandals and distractions dominating the news about judicial elections, it’s nearly impossible for voters to get meaningful information to inform their votes. While some candidates are vindicated, others, unfortunately, are guilty. All allegations, whether true or unfounded, interrupt the normal campaign process and misdirect voter attention.
The problem isn’t confined to Texas or Ohio or any other state; the voters of Pennsylvania have to contend with these disruptions as well. However, Merit Selection offers an alternative. Merit Selection takes judges out of the fundraising game and saves them from having to mount political campaigns that have the potential to run afoul of ethical rules.
Tags: Brad Morin
, Judge Kathryn Michael
, Judge William Hughey
, judicial elections
, William M. O’Neill
According to the Texas Tribune, Texas Supreme Court elections are already becoming heated. Former district court judge, John Devine is running against eight-year incumbent Justice David Medina in a Republican runoff election.
John Devine has taken a grass roots approach to the election. Justice David Medina has the support of Republican elected officials, and he has traveled
the state introducing himself to voters.
Both candidates have had their fair share of controversies. In 2008, Justice Medina was indicted in an arson case causing $1 million in damages to his home. Charges against Justice Medina were dropped. “Afterward the Harris County grand jury’s foreman said the dismissal of the charges had been politically motivated.” In 1997, Devine was sanctioned by the Texas Commission on Judicial Conduct for “using court chambers to announce his run for Congress.” He has also struggled to keep the 10 Commandments in his courtroom and is an anti-abortion activist. “At a June rally in Fort Worth, Mr. Devine told the crowd he had been arrested 37 times while protesting abortion clinics. . . . His activism on behalf of anti-abortion causes raised concerns when it appeared likely that he would hear cases related to abortion laws.”
According to the Statesman, one recent controversy between the two involves Devine’s motivations for running against Justice Medina. Scott Link, a former district judge, and Frank Harmon, an attorney, claim that Devine targeted Medina because “‘he had a Mexican name’ and was therefore vulnerable in a GOP primary.” Devine claims these statements are untrue and dishonest. The Statesman reported that Devine thinks this is an attempt to distract the public from Justice Medina’s 2002 driving while intoxicated charges, “his trial ended in a hung jury — and a $35,000 Texas Ethics Commission fine for improperly spending campaign money on personal travel.”
The Republican primary runoff election is scheduled for July 31, 2012. As the date nears, how much more time and money will be spent pointing fingers? Is this how we should be choosing our judges?
, judicial elections
, other states
, state supreme court
A San Antonio Express-News article explains just how frequently lawyers contribute to judicial election campaigns. Picture this: a group of probate attorneys gathering together in order to discuss the re-election of a probate judge while drinking scotch and beer. The probate judge, Tom Rickhoff, stops by with a list of attorneys who could potentially contribute money to his re-election campaign.
Attorney Mark Stanton Smith was present at the re-election meeting, which led his opposing counsel in a guardianship case to request the recusal of Judge Rickhoff. Judge Rickhoff refused to recuse himself, leading to an appeal decided by Judge Peeples.
Smith explained that he and Judge Rickhoff were not close friends, but conceded that he had contributed money to Rickhoff’s re-election. “‘It’s a typical thing that I do to the judges that are in the courts.’” Smith admitted there had been similar meetings in 2010 and in 2006. “The attorneys had agreed to call about 20 people each and solicit cash for the judge’s re-election.”
Judge David Peeples ruled that this was not unusual enough to require Judge Rickhoff to recuse. However, he also noted the broader issue at stake. “‘If you are correct,’ Judge Peeples said, ‘potentially, wouldn’t (this affect) every judge in cases involving lawyers that help them significantly in their campaigns, more than just contributing money, contributing a big sum of money, work for them, send out letters, work the poll for a morning on election day, put out the yard signs, all these judges that got some of these lawyers in their court?’”
The column’s author, Brian Chasnoff, explained that this was not a denial of such contribution activity, rather it was an acknowledgement of the rampant contributions from attorneys to judges’ election campaigns. “It’s also another reason that Texas needs to find a new way to pick judges.”
Tags: campaign contributions
, judicial elections
A recent article in the Texas Tribune discusses the potential in statewide judicial elections for candidates to be selected based on criteria no less superficial than the ethnic indicia a name provides.
The article, titled “The Cues Voters Use to Elect Unknown Candidates,” argues that “voters choose dozens of important state officials in every election without knowing a thing about them. So they rely on other cues — like political affiliations, pleasing names and who knows what else.” The article runs through some of the results of recent Texas appellate court elections, and tries to reconstruct the reasoning voters might have employed when making their selections.
Noting that the preeminent quality that voters in Texas are looking for is a “Republican ‘R’ behind [a candidate’s] name”, the article proposes that the real contest for officials occurs in the G.O.P. primary in March, giving even less time for voters to actually understand a candidate and make an informed choice, and leaving far less relevant qualities of candidates to serve as deciding factors.
The article poses the question, “When little else is known about two candidates in a G.O.P. primary, is a Hispanic surname a liability?” The judicial race in which Stephen Wayne Smith was victorious against Xavier Rodriguez for a spot on the Texas Supreme Court is used as an illustrative example. Little was known about either candidate going into the election. What, then, did the voters rely upon when making their choice? Names were all the public had available to them in the voting booth; it’s not unreasonable to wonder whether names decided the race.
When we elect judges in contested elections, we unconsciously – or consciously, as the case may be – impose our own biases and agendas onto the concept of justice, something that should be set wholly apart from politics, prejudices, and ideology. A judiciary must serve the people, but a judge’s fitness to serve should be determined by his or her ability to interpret the law and see that justice is fairly administered – not the ability to win votes, and certainly not by factors as inconsequential as a surname.
Tags: judicial elections
, name recognition
, Xavier Rodriguez
The editorial board at the San Antonio Express-News is calling for a change in Texas’s judicial selection. Texas currently uses partisan elections to select judges, but the editorial board believes that politics and money play too large a role in the process. In addition to worrying about politicizing the judiciary, the editorial condemns the fact that: “judges also are forced to solicit campaign contributions, and the only people who care enough to contribute to a judicial race most likely have or will have business before the court.” It notes former Supreme Court Justice Sandra Day O’Connor’s position against judicial elections as well as the fact that many judges acknowledge the public’s “discomfort” with the money involved in the system.
The editorial goes on to encourage the Texas legislature to adopt merit selection. We agree that the combined appointive and elective elements of merit selection provide the best means of ensuring fair and impartial courts. The public deserves a judiciary it can be confident in, not one tied up in politics and money. Judges have a unique position, and should be insulated from the campaigning and fundraising that accompany elections.
Tags: impartial courts
, Justice Sandra Day O'Connor
, Merit Selection
, San Antonio Express-News
A newspaper in Fort-Worth, Texas published an editorial this past Friday challenging Texans to reconsider the way they select judges. Noting that Texas has the dubious distinction of being “among a handful of states that elect all their judges in partisan elections” (along with Pennsylvania, Alabama, West Virginia, Illinois, and Louisiana), the paper calls on its citizens to “use this next year to examine and debate a new judicial selection system that the state legislature can adopt when it meets in 2011.”
The editorial noted that in some states “where judicial elections have devolved into money-driven battles of ugly TV ads,” including Pennsylvania, “sentiment for change is building.” The perception of the role of money in elections is a primary reason for a change to Merit Selection. After citing the $4.5 million spent on the recent Supreme Court race in PA as reported by PMC, the paper noted:
The biggest problem is that judges and candidates for the bench must raise campaign money primarily from lawyers, groups and individuals who might have cases before those same courts. In statewide races, the sums can be enormous. It leaves the public wondering whether money is buying influence.
Referencing other problems with electing judges, the Star-Telegram asked rhetorically:
Who doesn’t want fairness, impartiality and justice when they go into court?
Who doesn’t want qualified, capable, independent judges deciding disputes?
Who honestly believes that the only way to achieve that is to elect judges through expensive campaigns that do more to undermine public confidence than to provide voter education about the judiciary?
Good questions. The first step in the process was set in motion at a hearing before the House Judiciary Committee’s Sub-Committee on Courts late last year. If the state houses pass the legislation currently before committee in two consecutive sessions, the voters will have the ultimate say whether to amend the state constitution to make this important change to the way we select judges.
Tags: judicial elections
, Merit Selection
Dialogue and debate are critical when important decisions are at stake. That’s why it’s heartening to learn that people are talking about Merit Selection in different forums in several states. This includes Pennsylvania, where the Courts Subcommittee of the House Judiciary Committee will soon be holding hearings on Merit Selection.
But Pennsylvania is not alone. In West Virginia, the Independent Commission on Judicial Reform appointed by Governor Joe Manchin is hosting three public hearings, including one focused on Merit Selection. As the West Virginia Record reports, Governor Manchin responded favorably to the announcement of the hearings:
Our judicial system is too important, not to act without listening to public concerns. . . . I thank the commission’s members for taking time out of their daily schedules to listen to West Virginians’ suggestions and ideas.
Texans, too, are talking about Merit Selection. As reported in an op-ed in the Lake County Sun, the Caperton decision is renewing attention to the problems inherent in electing judges:
[Former Chief Justice] Phillips said the recent Supreme Court ruling should begin anew a national debate on how judges are chosen. [Chief Justice] Jefferson’s view was that the decision challenged Texans to do more to eliminate the perception that cash campaign contributions influence court decisions.
Op-ed author Willis Webb urges “Let the debate begin. . . again.”
We are looking forward to productive dialogue and debate in Pennsylvania. The most important thing is to provide the opportunity for the public to weigh in on the critical question of how we select our appellate judges.
Tags: Chief Justice Jefferson
, Chief Justice Phillips
, Courts Subcommitee of House Judiciary Committee
, Governor Joe Manchin
, Lake County Sun
, Merit Selection
, West Virginia
, West Virginia Record
, Willis Webb
In the wake of Caperton, an editorial in the San Antonio Express-News urges Texas to adopt Merit Selection for its judges. Leading the charge for reform in Texas is the current Chief Justice of the Texas Supreme Court, Wallace Jefferson. His support for Merit Selection continues a tradition begun by his predecessors on the bench; he is “the third successive Texas Supreme Court chief justice to advocate reforming the state’s judicial selection process.”
Jefferson had warned of the danger posed by money-packed judicial elections even before the Caperton decision came down, telling the state legislature earlier this year: “If the public believes that judges are biased toward contributors, then confidence in the courts will suffer.” The Express-News‘ editorial board concurs:
The judiciary system depends on an even playing field to maintain fairness. And the influence of money and partisanship must be reduced to deliver the even playing field that Texans deserve.
That’s something everyone deserves — including Pennsylvanians. The way to achieve that even playing field is by getting judges out of the fundraising business. The way to do that is to adopt Merit Selection.
, Merit Selection
, other states
, San Antonio Express-News
, Wallace Jefferson
An editorial in the Austin American-Statesman minces no words in pointing out a major problem caused by electing judges:
Elections mean money. Money means problems. Elections and money and judges mean, at the least, a damaging perception of big problems. . . .
[The campaign contributions involved in Caperton] seem[ed] like a prudent investment. But we don’t think judicial races should attract investments. The American Bar Association’s Model Code of Judicial Conduct, cited in the U.S. Supreme Court opinion, says “A judge shall avoid impropriety and the appearance of impropriety.”
How do you do that when you have to raise money. . . to run for judge in Texas?
This is a good question, and it’s one we all should be asking in Pennsylvania. Of course, the answer to that question raises another pressing question: if the electoral process is itself undermining public confidence in the courts and the judiciary, what can we do about it?
The editorial notes that there is something we can do:
The U.S. Supreme Court ruling does not force Texas to do anything about picking judges. But it’s another reminder that the system warrants review.
“It will be on litigants’ minds,” former Texas Supreme Court Chief Justice Tom Phillips said of the decision. “They’ll ask their lawyer, ‘Did the other side give money to the judge? I read in the paper you can do something about that.’ ”
And now you’re reading in the paper that there is something we all should do about that. Texas’ judicial selection system should be changed.
Voters in Pennsylvania can do something, too. Legislation has been introduced to change the state constitution to implement Merit Selection for the appellate courts. This would get appellate court judges out of the fundraising business. We can only amend the constitution if the legislature twice passes the amendment and the public votes for it. So, there is something we can do. Let’s do it.
Tags: Austin American-Statesman
, constitutional amendment
, judicial elections
, Merit Selection
, Tom Phillips