Brennan Center for Justice

1.            At the request of Governor Rick Scott, the Florida Department of Law Enforcement (FDLE) recently investigated whether three Florida Supreme Court justices facing a retention election this Fall had acted inappropriately by using court staff to notarize campaign documents.  On Thursday, the Palm Beach Post reported that FDLE concluded the judges did not break the law.  According to the agency’s report, “It appears that the practice of using staff members to notarize campaign and other documents is common practice throughout the State and is done solely as a matter of convenience. . . . Neither the Justices nor the Supreme Court staff interviewed considered the notarization of these documents to be, in any way, campaign related, and no evidence indicating an abuse of either position or public resources was revealed during the course of this inquiry.” Nonetheless, a lawsuit filed the previous week against the judges will proceed.

Dara Kam, State Investigators Clear Justices of Wrongdoing, Scott Not Pleased, Palm Beach Post, July 5th, 2012.

State Judicial Elections

2.            Historically, state supreme court elections have often pitted business interests against trial lawyers, with the former supporting Republican candidates and the latter favoring Democrats.  However, the Birmingham News reports that this year in Alabama, plaintiffs-side lawyers have contributed 25 percent of the money Republican Alabama Supreme Court hopeful Ray Moore has raised since the primary.  Charles Hall of the Justice at Stake campaign offers one explanation: "Democrats, at least for now, have left the field in Alabama.”  The result—which Politico describes as “a little hard to believe”—is that “trial lawyers are contributing big bucks to Roy Moore, the socially conservative jurist who was removed as chief justice nearly a decade ago for refusing a federal judge’s order to remove a monument inscribed with the Ten Commandments from public display in the Alabama Judicial Building.” Meanwhile, a Birmingham News columnist Joey Kennedy uses the U.S. Supreme Court’s recent decision upholding the constitutionality of the Affordable Care Act to explore the pitfalls of judicial elections. Kennedy notes that campaigning and fundraising “strains the objectivity of the jurists.”  He argues that while many conservatives are angry because Chief Justice John Roberts sided with the Court’s liberal block in upholding the law, Roberts was able to make his decision about the law’s constitutionality according to principle, not politics “because, thankfully, he's appointed for life.”

Eric Velasco, Trial Lawyers Putting their Campaign Cash Behind Roy Moore for Alabama Chief Justice, The Birmingham News, July 03, 2012; Charles Mahtesian, The Conversion of The Trial Lawyers, POLITICO, July 4, 2012; Joey Kennedy, It Takes Courage to Rule Like U.S. Chief Justice John Roberts, The Birmingham News, July 08, 2012.     

Recusal

3.            Last year, Wisconsin Supreme Court Justice Michael Gableman came under fire for his receipt of free legal services when it came out that he did not pay one of Wisconsin’s largest law firms after it defended him against a state Judicial Commission complaint. Last week, the Wisconsin Supreme Court concluded that Justice Michael Gableman was not required to step aside from a case in which one of the litigants is represented by the law firm from which Gableman received free legal services.  According to the ABA Journal, Justice Gableman , who did not participate in the split 3-3 vote, claimed earlier this year that he could remain impartial. Chief Justice Shirley Shirley Abrahamson disagrees, however, stating in her dissent that “The U.S. Supreme Court’s 2009 decision in Caperton v. A.T. Massey Coal Co. requires courts to make a due process determination whether the litigants had a fair hearing when a justice’s participation in a case is challenged.”

Debra Cassens Weiss, Split Wis. Supreme Court Refuses ro Kick Justice From Case Litigated by His Pro Bono Law Firm, ABA Journal, July 6, 2012.

4.            The Leaf Chronicle reported last week that the Tennessee Board of Judicial Conduct reprimanded County Judge John Gasaway III last week for denying a motion to recuse filed by lawyers who once worked for—and had disagreements with—the judge’s wife. Judge Gasaway claimed that the attorneys defamed his and his wife’s reputations, and posted his 13-page opinion online.  According to the Chronicle, “[t]he Board of Judicial Conduct said the publication of that order on the court website violated Canon 2 of the Code of Judicial Conduct.”  Meanwhile, the Chattanoogan reported that a law reforming the ways Tennessee judges are held accountable went into effect on July 1. The law abolished Tennessee’s old judicial discipline commission and replaced it with the newly-created Board of Judicial Conduct.  The law also increased legislative oversight of the judicial branch by eliminating the state Supreme Court’s power to appoint Board members.

Tavia D. Green, Judge Gasaway Reprimanded by State Over Order Involving Wife, Leaf-Chronicle, July 2, 2012; Major Revision of The Court Governing Judicial Ethics to Take Effect July 1, Chattanoogan, June 29, 2012.

Diversity on the Bench

5.            A Salt Lake Tribune article highlighting the career of Judge Tyrone Medley, Utah’s first black judge, notes that only five of Utah’s 71 district judges are racial or ethnic minorities.  As Judge Medley prepares to retire, he has expressed concern for the continued lack of diversity on the bench, but praised the Utah Minority Bar Association for its recruitment efforts.  According to Judge Medley, “[t]he community is going to have to hold those in power who make these appointments accountable for a more representative judiciary."

Aaron Falk, Tyrone Medley: From Basketball Court to Utah’s First Black Judge, The Salt Lake Tribune, June 29 2012.