Brennan Center for Justice

Supreme Court Will Not Hear Kansas Challenge to Merit Selection
The Supreme Court chose not to grant certiorari in Dool v. Burke, a case that challenged Kansas’s merit selection process. According to Gavel Grab, “In September, a Tenth Circuit panel affirmed a lower court decision and ruled that the state’s method for the election of lawyer members of the state Judicial Nominating Commission was not in violation of the Equal Protection Clause…Judge Terrence O’Brien wrote then in a concurring opinion, ‘In the end, this court must defer to Kansas in decisions relating to the structure of its government. Kansas voters adopted merit selection as a middle ground between an appointment process scarred by abuse and an elective process susceptible to politicization.’” Kansas’s legislature is currently also holding hearings and considering other options to replace the merit selection system. According to the Associated Press, “A proposal for overhauling how Kansas fills vacancies on its appellate courts cleared a state Senate committee Thursday, and the full chamber expects to vote on it next week. The measure, backed by many conservative Republicans, would amend the Kansas Constitution so that state Court of Appeals judges and Supreme Court justices would be appointed by the governor and confirmed by the Senate. The proposal would scrap the attorney-led judicial nominating commission that now screens applicants for the appellate courts and nominates three finalists for the governor, who must pick one.”
Sources: Peter Hardin, Supreme Court Won’t Hear Challenge to Kansas Merit System, Gavel Grab, January 23, 2013; John Hanna, Kansas Senate Panel Backs Judicial Selection Change, Associated Press via Kansas City Star, January 24, 2013.

Pennsylvania Considers New Selection Process
A bill has been introduced in Pennsylvania that would change the way judges are chosen. A press release from Pennsylvanians for Modern Courts explains, “The proposed constitutional amendment would create an Appellate Court Nominating Commission to evaluate judicial candidates and develop a short list of potential nominees for the governor. Following gubernatorial nomination and Senate confirmation, a judge would serve a short initial term and then stand before voters in a nonpartisan uncontested retention election. Voters would decide then, and at subsequent 10 year intervals, whether the judge should stay on the bench. Local trial judges would still be elected.” The Philadelphia Inquirer reports, “Fueling the effort to revamp the system is the widespread perception that ever-growing amounts of money spent on judicial campaigns foster corruption and undermine public confidence. Many prominent defense lawyers privately decry Pennsylvania's system of electing judges, saying it has, at best, fostered mediocrity and, at worst, led to an atmosphere of judicial misconduct.” According to WHYY, “Enacting it would require amending the state Constitution -- a heavy lift, especially for a proposal that didn't make it out of a House committee last year.” According to the PMC press release, “A constitutional amendment must pass two consecutive legislative sessions and then be voted on in a public referendum.” Currently, judges in Pennsylvania are elected in an initial partisan election, followed by unopposed retention elections for future terms. The bill was introduced with bipartisan support by State Sen. Anthony H. Williams (D) and State Sen. Richard Alloway (R).
Sources: Pennsylvanians for Modern Courts, PA Senators Introduce Merit Selection, January 23, 2013; Chris Mondics, Pennsylvania Bill Would Change How Judges Are Chosen, Philadelphia Inquirer, January 25, 2013; Mary Wilson, In Pa., Another Try For Merit Selection Of Judges, WHYY Newsworks, January 24, 2013.

STATE JUDICIAL ELECTIONS

Michigan Considering Reforms After Contentious Cycle
The Michigan Campaign Finance Network and the League of Women Voters are coming together to support reform proposals to change the way judges are selected. According to the Daily Tribune, the two groups are planning to hold two joint forums in the next few months to garner support for their efforts. The renewed push for change follows a contentious election cycle, as the article discussed with Rich Robinson, of the Michigan Campaign Finance Network: “Among their beefs is that three-quarters of the millions spent for advertising in the state Supreme Court races in November came from undisclosed sources. Robinson says much of the television advertising was patently false and attacked the candidates’ characters through so-called ‘issue ads.’…‘The issue ads were the equivalent of a drive-by shooting,’ … mentioning one that characterized newly-elected Justice Bridget Mary McCormack as helping free a terrorist.” The forums are supporting recommendations proposed by the Michigan Judicial Selection Task Force and include, “Full and open disclosure of campaign spending in Michigan judicial races[,] [o]pen nonpartisan primaries to select judicial candidates[,] [c]reation of a Citizens’ Campaign Oversight Committee to curb misleading attack ads[,] [p]roduction of voter education guides by the Michigan Secretary of State’s Office to help voters make educated choices in judicial candidates[,] [a]nd creation of an advisory screening commission to send a qualified list of candidates to the governor when vacancies arise. Currently, the choice is exclusively left to the governor.”
Source: Charles Crumm, Ads in Last Michigan Supreme Court Election Were Like a ‘Drive-By Shooting’, Daily Tribune, January 23, 2013.

FEATURED RESEARCH

Chicago Appleseed Fund for Justice: Recusal Policy Brief
The Center for Judicial Performance and Integrity at the Chicago Appleseed Fund for Justice released an issue brief focusing on recusal policy, particularly in Illinois. The introduction states: “Public confidence in the judiciary arises from judicial excellence, judicial independence and judicial impartiality. Ensuring impartiality and independence in a jurisdiction with elected judges can be problematic, particularly given the record amounts raised in recent elections and  increased media coverage of judicial elections in the wake of Citizens United. Where judges are elected in privately-funded contests, there are at least two types of concerns relating to recusal or disqualification: (1) the procedures by which judges are removed and (2) access to contribution information which may be relevant to seeking recusal of a judge.” The report further says, “Improved recusal procedures will not only counter the perception of bias created by campaign contributions, but will create uniform procedures and predictable outcomes. Recusal provisions that create a higher threshold for conflicts arising out of campaign support are contrary to this goal. It is important that recusal rules maintain the current standard requiring recusal where a judge’s impartiality may reasonably be questioned.”
Source: Elizabeth Monkus, Recusal Policy Brief, Chicago Appleseed Fund for Justice, December 2012.

JUDICIAL ETHICS

Facebook Friends in the Courtroom Challenged in Florida
According to an article on Mondaq, Florida’s Supreme Court may consider hearing a case involving recusal when a judge is Facebook friends with an attorney in front of him or her. According to the author, “The social media dilemma for judges began in 2009 with an advisory opinion from Florida's Judicial Ethics Committee which questioned the ethics of a judge who was a Facebook ‘friend’ with a lawyer. Why? The appearance of impropriety. According to the Committee, the public could see a lawyer who is a Facebook ‘friend’ of a judge as being in a ‘special position to influence the judge.’ Following the opinion, many judges ‘unfriended’ lawyers they knew did or potentially could appear in their courtroom. Other judges took the advisory opinion as just that, an advisory opinion, not a mandate.” It is unclear if the case will be heard, but the article states: “Whether the Florida Supreme Court will see the issue as an ‘isolated’ event, as one of the Fourth DCA, and refuse to rule on the issue is unclear. Undoubtedly, until the Florida Supreme Court says otherwise, lawyers throughout the state will attempt to use the Fourth DCA's opinions as requiring mandatory recusal in cases where an opposing party and the judge are Facebook ‘friends.’ Thus, any lawyer who is Facebook friends with a judge may be at risk for a motion for recusal.”
Source: LaShawnda K. Jackson, Will The Florida Supreme Court Put An End To Lawyers And Judges Being Facebook “Friends”?, Monday, January 24, 2013.