Fair Courts E-lert: Super PACs, Donors Turn Sights on Judicial Branch

April 2, 2012
State Judicial Elections

1.         An article in the Washington Post discusses how the possibility of unlimited special interest money pouring into state judicial elections is causing alarm among judicial candidates. According to the Post, “[w]hile deep-pocketed super PACs and ultra-wealthy donors have attracted plenty of attention in the presidential contest this year, they are also making waves further down the political food chain. The mere possibility that a rich benefactor or interest group with endless amounts of money could swoop in, write massive checks and remake an entire court for ideological reasons has prompted judges here in Florida and elsewhere to prepare for battles they never expected to fight.”

Brady Dennis, Super PACs, Donors Turn Sights on Judicial Branch, Washington Post, March 29, 2012.

2.         Last week, the U.S. Court of Appeals for the Eighth Circuit upheld Minnesota’s judicial ethics rules prohibiting judges and judicial candidates from endorsing candidates in other contested partisan or non-partisan elections, from soliciting contributions for other political candidates and organizations, and from personally asking for campaign contributions. Reversing an earlier decision that held the state’s rules unconstitutional on free-speech grounds, the Eighth Circuit ruled that “Minnesota’s interest in preserving [judicial] impartiality, defined as the lack of bias for or against a party to a proceeding, is compelling.” However, as a Thompson West article noted, just last year the Sixth Circuit ruled in a similar case that Kentucky's judicial solicitation rule violated candidates' free-speech rights. The plaintiff, judicial candidate Greg Wersal, indicated that especially in light of the circuit split, he would appeal the case to the U.S. Supreme Court.

Adam Skaggs and Maria da Silva,Eighth Circuit Ruling is a Win for Minnesota Courts, Brennan Center for Justice, April 2, 2012; Dan Browning, Appeals Court Restores Rules for Minnesota Judicial Races, Star Tribune, March 27, 2012; Steve Karnowski, Appeals Court Restores MN Judicial Election Rules,Associated Press, March 27, 2012; Terry Baynes, 8th Circuit Upholds Judicial Campaign Restrictions, Reuters, March 27, 2012.

3.         According to a Michigan Radio segment, “[l]ots of campaign money is being spent to influence the election of Michigan Supreme Court justices. That makes people wonder how judges can be impartial. After all, some of the justices owe their position on the bench to people who have given them millions of dollars.”  Michigan has featured prominently in the bi-annual reports on judicial election spending co-authored by the Brennan Center. The most recent report concluded that in 2010, spending on supreme court races in Michigan topped $9 million dollars, almost double that spent in any other state. This year, three seats are open on the state’s high court, and observers, including former Michigan Supreme Court Justice Betty Weaver, have stated that reforms are need to protect the state’s fair and impartial courts.

Lester Graham,Money Talks: Campaign Money and Supreme Court Justice Candidates, Michigan Radio, March 28, 2012.

Merit Selection

4.         A Miami Herald editorial points to a recent misconduct case against a local judge to support the claim that lower-court judicial elections in Florida should be replaced with a merit selection system. According to the editorial, “[s]ince merit retention was added to the mix, the appellate courts and the state Supreme Court have been virtually scandal free. That’s something that can’t be said of those on the local level, to the detriment of the law and those subject to it.”

A Disorderly Court,Miami Herald, March 26, 2012.

5.         Last week Pennsylvania Senator Jane Orie was found guilty of 14 of the 24 counts of criminal activity in the public corruption case against her. A Daily News editorial contends that, while Senator Orie was not convicted on the charges of misappropriating resources to bolster the Supreme Court campaign of her sister, Justice Joan Orie Melvin, “the courts are never quite clear of clouds as long as members of the bench have to enter the fray of politics, fundraising and campaigining to get their jobs.”The editorial concludes by asking “[j]ust how many more examples of potentially corrupted judiciary do we need, exactly, to get that point across?

Paula Reed Ward,State Sen. Jane Orie Guilty on 14 Counts, Acquitted of 10,Pittsburgh Post-Gazette, March 26, 2012; Joe Mandak And Kevin Begos, Senator Convicted of Misuse of Office, Associated Press, March 27, 2012; DN Editorial: That Squirmy Feeling: The Orie Case, Philadelphia Daily News, March 29, 2012.

6.         In Texas, the nonprofit Texans for Public Justice is advocating for a judicial selection overhaul, and touting the benefits of switching from partisan judicial elections to a merit selection system. According to the Texas Tribune, Texas Supreme Court Chief Justice Wallace Jefferson also supports merit selection—in his 2011 state of the judiciary address, Chief Justice Jefferson told legislators that "[a] justice system built on some notion of Democratic judging or Republican judging is a system that cannot be trusted."

Ben Philpott,In Texas, a Never-Ending Battle over Judicial Elections, Texas Tribune, March 30, 2012 .

Diversity on the Bench

7.         According to an editorial in theJournal Gazette, Indiana “Governor Mitch Daniels’ appointment last week of Mark Massa as newest member of the state’s highest court is a reminder that the case for inclusiveness hasn’t been won. . . Indiana remains one of only three states without a female on its highest court; the others are Idaho and Iowa. For Daniels to refer to the Indiana panel as ‘America’s best Supreme Court’ is to suggest that a court without female representation is better than the courts of the 47 states benefiting from a woman’s perspective.”

Losing Ground, Journal Gazette, March 27, 2012; Mary Beth Schneiderand Chris Sikich, Daniels Picks Massa for Indiana Supreme Court, Indy Star, March 23, 2012.


8.         A case in the Washoe District Court, Nevada, has shown light on the issue of judicial campaign contributions and recusal requirements, the Reno Gazette Journal reports. According to the Journal, Washoe District Judge Brent Adams recently recused himself from 2 cases in which he received campaign funds from parties. However, concerns have been raised that the judge who is replacing Adams on one case, Judge Jerry Polaha, also received contributions from the plaintiff. Washoe District Court Chief Judge David Hardy is quoted as stating that he is “actually very concerned” about the recent very public links between judges and campaign money, followed by recusals.  However, Chief Judge Hardy also noted that “The Nevada Supreme Court has held, and the Code of Judicial Conduct confirms, that the mere receipt of a campaign contribution is not a disqualifying event.”

Martha Bellisle, Campaign Contributions Force Washoe Judge off Another Civil Case, Reno Gazette Journal, March 29, 2012.