Fair Courts E-lert: Four Justices Boycott Part of Administrative Meeting

April 30, 2012
Judicial Discipline

1.            “The ethics case against [Wisconsin] state Supreme Court Justice David Prosser may be over before it begins,” according to a Milwaukee Journal Sentinel article. Justice Prosser has requested three fellow justices recuse themselves from the ethics case against him, which arose from a 2010 incident in which Prosser allegedly placed Justice Ann Walsh Bradley in a chokehold during an argument in chambers. Prosser claims that his fellow justices are not free from bias because they witnessed the incident at issue. The Wisconsin Judicial Commission’s ethics allegations against Justice Prosser also mention an incident in 2010 when he called Chief Justice Shirley Abrahamson a "bitch" and threatened to "destroy" her. Because of concerns that recusals would prevent the Wisconsin Supreme Court from reaching a quorum, Legal Newsline reports, the Commission has urged the Court of Appeals set up a three-judge panel to hear the ethics case against Prosser.  But Richard Brown, the chief judge, has stated that he is unable to do so unless directed by the Supreme Court. Meanwhile, in a continuing display of the fractious nature of the Court, four justices boycotted a public administrative session last week during which the Court was to discuss a rule change that would close future meetings off to the public.

Patrick Marley, Four Justices Boycott Part of Administrative Meeting, Milwaukee Journal Sentinel, April 25, 2012; Patrick Marley, Prosser Asks Fourth Justice to Step Aside in Ethics Case, Milwaukee Journal Sentinel, April 25, 2012; Jessica M. Karmasek, Prosser Asks Fourth Wis. Sc Justice to Recuse Self, Legal Newsline, April 25, 2012; Patrick Marley, Prosser Seeks Recusals that Would End Case, Milwaukee Journal Sentinel, April 23, 2012.

2.            Last Friday, the three Florida Supreme Court justices who are running in retention elections this year suspended oral arguments to file their financial disclosure papers. The justices’ legal counsel—who notified the justices about the last-minute deadline—described the filings as “part of routine court business" and “not electioneering communication.” Nonetheless, Representative Scott Plakon has requested the governor investigate whether the justices violated the law by using court staff to prepare the filings. The three justices are facing an opposition campaign led by a Tea Party affiliated group called Restore Justice, which has attacked the court as being too activist. As a Palm Beach Post article notes, “this year's normally quiet merit retention contest already is sparking fireworks.”

John Kennedy, Bumpy Road to Retention for Florida Supreme Court Justices, Palm Beach Post, April 28, 2012; Aaron Deslatte, Legislator Seeks Investigation of Three Supreme Court Justices, Orlando Sentinel, April 26, 2012; John Kennedy, Three Florida Justices Almost Miss Candidacy Deadline, Palm Beach Post.

Judicial Selection in the States

3.            Last week, after a year-long study, the Michigan Judicial Selection Task Force released its recommendations for improving the state’s process for selecting Supreme Court Justices. According to Crain’s Detroit Business, the task force concluded that “election campaigns for the Michigan Supreme Court need more oversight, less partisanship, greater campaign finance disclosure and accessible information for voters if they are to remain elections at all.” The task force was led by Supreme Court Justice Marilyn Kelly and senior federal appeals Judge James Ryan; retired U.S. Justice Sandra Day O’Connor was an honorary chair. In a press release detailing the report’s findings, Justice Kelly noted that, “the current process of selecting justices undermines public trust and confidence in the impartiality and independence of the Michigan Supreme Court. . . Polling has consistently shown that a majority of Michigan voters believes that judicial campaign contributions have influence on the decisions judges make. As the saying goes, perceptions become reality: A judiciary that is not perceived as impartial is a compromised judiciary. That’s not fair to anyone – not to citizens, and not to the judges. Michigan deserves better.”

Chad Halcom, Panel Recommends Less Partisanship in Michigan Supreme Court Elections, Crain’s Detroit Business, April 26, 2012; Jack Lessenberry, Michigan Panel Judicious in Seeking Order in the Court, Toledo Blade, April 27, 2012.

4.            The Associated Press reports that “a proposal to overhaul the way Missouri selects appeals court judges won first-round approval Thursday in the state Senate.” The proposal would add a non-lawyer named by the governor to the screening commission that recommends nominees for openings on the state Supreme Court and Court of Appeals. It would also remove the Missouri Chief Justice from the commission and increase the number of nominees sent to the governor from three to four. While some critics contend that lawyers have a disproportionate influence in the process, Lynn Whaley Vogel, president of the Missouri Bar, warned that the changes would “effectively eliminate Missouri’s merit-based judicial selection process.”

Chris Blank, Mo. Senate Endorses Changes to Judge Selection, Associated Press, April 26, 2012.

Federal Judicial Selection

5.            Last week the full Senate voted on three judicial nominees. The Senate confirmed Brian Wimes for the Eastern and Western districts of Missouri on Monday, and confirmed Gregg Costa and David Guaderrama to the U.S. District Courts for the Southern and Western Districts of Texas on Thursday. According to Representative Lloyd Doggett, “the confirmation of these two individuals was long overdue.” Meanwhile, according to the Las Vegas Journal Review, Senate Majority Leader Harry Reid has stated he will ask the Senate Judiciary Committee to hold a hearing on District Court nominee Elissa Cadish despite the objections of Nevada’s Republican Senator, Dean Heller.

Gary Martin, Doggett Says Delayed Confirmation of Texas Judges ‘Long Overdue’, Houston Chronicle, April 27, 2012; Steve Tetreault, Reid Seeks to Bypass Heller on Federal Judge Nominee, Las Vegas Journal Review, April 25, 2012; Daniel Straus, Senate Confirms Missouri District Judge Nominee, The Hill, April 23, 2012.

Miscellaneous

6.            Last week President Barack Obama announced 13 new Presidential Medal of Freedom recipients. Former U.S. Supreme Court Justice John Paul Stevens was one of the recipients. As the President stated in a USA Today article, “these extraordinary nominees come from different backgrounds and different walks of life, but each of them has made a lasting contribution to the life of our nation.”

David Jackson, Obama Announces 13 Medal of Freedom Recipients, USA TODAY, April 26, 2012.