Fair Courts E-lert: W.Va. Court Race Tests Public Financing Experiment

April 16, 2012
**Featured Event**

1.            Tomorrow, Tuesday April 17, the Center for American Progress Action Fund and the Fair Judiciary Committee are hosting a forum to discuss “the process and politics of judicial confirmations, the impact of the judicial vacancies crisis, and solutions for 2012 and beyond.” Streaming video of the event will be available online.

State Judicial Elections

2.            In Caperton v. Massey, the U.S. Supreme Court ruled that a “serious risk of actual bias” was created when a West Virginia judge failed to recuse himself from a case involving a coal company CEO who had spent $3 million to elect the judge. This year, as eight candidates vie for two seats on the West Virginia Supreme Court, campaign spending is once again making headlines. The state has implemented a pilot public financing program, which candidate Allen Loughry described as an attempt to "eliminate the perception that Supreme Court seats can be bought by attorneys who appear before the court.” Loughry is the only candidate to opt into the state’s program, however, and according to the Associated Press, “[t]he $1.8 million amassed by the eight candidates as of March 30 marks a 40 percent increase over the same point in 2008, the last time that two Supreme Court seats were on the ballot.”

Lawrence Messina, W.Va. Court Race Tests Public Financing Experiment, Associated Press, April 15, 2012.

3.            Florida Supreme Court Justices R. Fred Lewis, Barbara Pariente and Peggy Quince are ranked as top state fundraisers during the first quarter of 2012, with each Justice having raised more than $150,000 apiece as of March 30, according to the Miami Hearld. A Sunshine State News article notes that while “No appellate or Supreme Court judge has been voted out of office through a retention vote,” the Tea Party led group Restore Justice 2012 has begun a campaign to oust the three justices. The group, which spearheaded an unsuccessful attempt to unseat Justices Jorge Labarga and James E.C. Perry in 2010, claims that the Court has repeatedly “overstepped their constitutional limitations, proving that they are truly one of the most activist courts in the nation.” In contrast, Dan Stengle, legal counsel for the justices’ retention campaigns, described the ouster campaign as an example of the ways in which “[o]ur fair and impartial courts are increasingly being targeted by groups seeking to increase political influence over court rulings.”

Mary Ellen Klas, Top Fundraisers for the Quarter Include a Surprising Black-Robed Bunch, Miami Herald, April 11, 2012; Jim Turner, Money Rolling In for Supreme Court Justices Facing Tea Party Retention Challenge, Sunshine State News, April 12, 2012.

Merit Selection

4.            Last week a proposal to replace Tennessee’s judicial merit selection system with contested elections failed to achieve a majority in the House Judiciary Committee. This week, the state senate is expected to vote on two competing judicial selection reform proposals. According to the Tennessee Report, “SJR183 would allow the General Assembly to solidify the current practice of the governor appointing judges who later face retention elections, called the Tennessee Plan. SJR710, on the other hand, would require the governor’s judicial appointments to win approval from the General Assembly. Those judges would also face retention elections to renew their terms.”

Plan to Elect Judges Fails, Tennessee Report, April 12, 2012.

5.            In a St. Louis Today commentary, Missouri state bar president Lynn Whaley Vogel articulates concerns about a proposal to alter the state’s judicial merit selection system currently being debated in the House, and urges the legal community to speak out against the proposal. According to Vogel, “The Non-Partisan Court Plan continues to be right for the people of Missouri because it attracts high-quality judges in the least political way and ultimately gives the people the final say.” Meanwhile, aJoplin Globe editorial noted that Missouri’s merit selection appointment and retention-election system is the oldest in the country. As the editorial concludes, “Missouri’s Non-Partisan Court Plan has served Missourians well for more than 70 years in keeping politics at arm’s length from the judicial selection process. Let’s not scrap the plan.”

Lynn Whaley VoGel, Guest Commentary: Protect Missouri's Judicial Selection Process, stltoday.com, Wednesday, April 11, 2012; Our View: Keep Politics out of Court Plan, The Joplin Globe, April 10, 2012.

6.            Judicial selection reform is also being considered in Oregon, where a working group chaired by Chief Justice Paul De Muniz is scheduled to begin examining possible reforms in the way judges are chosen for the state’s two highest courts at the end of the month. When Chief Justice Muniz originally proposed the working group in 2011, he pointed to “the increasing politicization of state judicial elections puts at risk judicial independence and erodes public confidence in the impartiality of judicial decisions.” Meanwhile, a column in The Oregonian argues that while one suggested reform is to replace the state’s current system of judicial elections with a merit selection system, “Oregon voters should think carefully before giving up any of their modest powers to elect or eject judges. Not only is it good for voters to have a direct say in the third branch of government, but it's healthy for judges, too.”

Susan Nielsen,Selecting Oregon Judges: Voters, Tighten your Grip on the Power to Pick, The Oregonian, April 15, 2012.

Recusal

7.            In the ongoing saga of the ethics inquiry into Wisconsin Supreme Court Justice David Prosser, the Milwaukee Journal Sentinel  reports that Justice Prosser’s attorneys filed a motion last Thursday, arguing that Justice Ann Walsh Bradley should recuse herself from the case because she “is not only a material witness but also the central figure in leaking skewed representations of both incidents cited in the complaint to the news media, initiating a criminal investigation against Justice Prosser and contacting the Judicial Commission to press a complaint against him.” Justice Bradley responded with a statement describing the motion as “rife with inaccurate statements and unfounded attacks.” Justice Prosser also filed a motion to disqualify Chief Justice Shirley Abrahamson, who was involved in the altercation last summer underlying the case against Justice Prosser.

Patrick Marley, Prosser Asks Fellow Justices to Step Aside in Ethics Case, Milwaukee Journal Sentinel, April 12, 2012.

Miscellaneous

8.            As the Northwest Indiana Times reports, this year the Indiana General Assembly approved, and Governor Mitch Daniels signed into law,  four measures “that overturned four 2011 rulings of the state's high court. In each case, state law was clarified or changed in response to the court's interpretation of it.” Speaking to the Times, Chief Justice Frank Sullivan Jr. explained that “[u]nder our separation of powers in the government and the way our constitution works, the Legislature has the last word. Except when it comes to matters of constitutional law."

Dan Carden, New Laws Overturning Ind. Supreme Court Decisions Demonstrate Balance of Power, Northwest Indiana Times, April 8, 2012.