Fair Courts E-lert: Changes to State Judicial Selection Systems

April 3, 2013

Changes to State Judicial Selection Systems
Bert Brandenburg, the executive director of Justice at Stake, was featured in USA Today discussing changes to state judicial selection systems, which would make them more closely resemble the federal process. Brandenburg writes, “Lawmakers in Kansas and Tennessee voted earlier this month to give governors authority to pick appellate judges, subject to legislative confirmation. Oklahoma’s Senate approved a similar shift. These initiatives would dismantle merit-based selection, a system aimed at keeping campaign cash and politics out of courtrooms and giving every American a fair day in court.” He explains, “States with merit selection rely on nonpartisan nominating commissions to put a list of candidates before the governor, who chooses from it. In many merit selection states, citizens then periodically vote on whether to keep these judges.” Brandenburg concludes, “America's state courts handle 98% of all lawsuits. While these courts are engines of equal justice and economic stability, they're facing mounting budget stress and political pressure. Will state courts really benefit from U.S. Senate-style confirmation politics right now?”
Source: Bert Brandenburg, States Making It Harder To Get Timely Justice: Column, USA Today, March 27, 2013.


Wisconsin Election: Roggensack Defeats Fallone
On Tuesday, Justice Pat Roggensack of the Wisconsin Supreme Court won reelection over law professor Edward Fallone after a contentious primary and general election. According to the Milwaukee Journal-Sentinel, “Roggensack touted her experience in the race, noting she served seven years on the Court of Appeals and nearly 10 years on the Supreme Court. She had the backing of law enforcement and more than 100 judges, as well as the state Republican Party. Fallone, who had the support of Democrats and unions, contended that the high court has grown dysfunctional and said Roggensack needed to be replaced to start to improve sour relationships on the court.” A major point of contention in this election was the court’s handling of a physical altercation between two other Supreme Court Justices that occurred in June of 2011, in which Justice David Prosser allegedly put his hands around the neck of Justice Ann Walsh Bradley. An ethics case against Justice Prosser has stalled due to the recusal of five justices from the case, including Justice Roggensack.  Fallone cited the ethics case as an example of what he described as the court’s dysfunction and argued that the court has to change its reputation to the public. Roggensack’s response to the Prosser incident included writing a letter that she said she hoped her colleagues would sign: “Her proposed letter called the incident inappropriate and said the court would not repeat such ‘extraordinary conduct,’ but it did not propose sanctioning anyone.” The candidates also disagreed on the role of money in the election, “The challenger in the race, Marquette University law professor Ed Fallone, says justices should be required to consider stepping down from cases that involve parties who have contributed large amounts to their campaigns. Current Supreme Court rules approved in 2010 make it possible for Supreme Court justices to sit on a case regardless of how much a party in the suit might have contributed to the justice's election campaign. In a recent debate, Fallone said that rule leads to a perception of bias and should be changed… But incumbent Justice Pat Roggensack defends the current rule. She says it is not realistic to assume a campaign contribution will influence a judge who is considering a case.”
Sources: Patrick Marley, Patience Roggensack Defeats Edward Fallone For Second Term On State Supreme Court, Milwaukee Journal-Sentinel, April 2, 2013; Patrick Marley, After Incident Between Colleagues, Patience Roggensack Offered Joint Letter Of Apology, Milwaukee Journal-Sentinel, March 5, 2013; Gilman Halsted, Fallone, Roggensack Disagree About Money's Role In Judicial Elections, Wisconsin Public Radio, March 29, 2013.


Minnesota Legislature Considers Disclosure Bill
The Minnesota legislature is considering a bill that would require the disclosure of economic interests from judges and county commissioners. According to KAAL, “The current law doesn't require them to file statements of economic interest with the Campaign Finance and Public Disclosure Board, like legislators do… Rep. Rick Hansen, DFL-South Saint Paul, and Sen. John Marty, DFL-Roseville, are sponsoring a bill that would broaden the definition of public official to include judges and county commissioners. The bill would make public the financial relationships judges and county commissioners have but not require them to assign a specific value to those relationships[].” The article continues, “Analysts say the bill may be a good start to a broader campaign finance reform effort but argue the bill does little to improve judicial integrity. Judges are already required to recuse themselves from cases in which a financial conflict is present.”
Source: Nick Winkler, Minn. Judges May be Required to Reveal Financial Ties, KAAL, March 17, 2013.


Move to Unionize Judges in Washington D.C.
According to the Washington Post, some city administrative law judges are seeking to unionize. “Now a group of city administrative law judges is seeking to organize for the first time, and the months-long effort — taking place over the strenuous objections of the judges’ supervisor — has generated frustration among union advocates who think Mayor Vincent C. Gray has failed to match his pro-labor rhetoric with action.” According to the article, “The tensions within the Office of Administrative Hearings stretch back more than a year and were publicly aired last June, when 15 judges signed a letter addressed to [D.C. Council Chairman] Mendelson accusing OAH Chief Administrative Law Judge Mary Oates Walker of a ‘lack of transparency, predictability, and competence.”’The letter, among other things, cited a “chilled work environment that is unduly stressful, demeaning, and counterproductive to overall operations” and ‘unprofessional, erratic, and at times demeaning’ treatment of staff by Walker. A month later, the judges filed papers seeking to form a union.” The piece continues, “The key question at stake is whether the line judges are supervisors or managers who would thus be prohibited from unionizing under the District’s employment law. The agency has argued that they are essentially managerial, directing the activities of paralegals, clerks and other agency support staff. But judges said they are not — the staffers do not report to them directly, they said, but are supervised by the chief judge and shared among all the judges.”
Source: Mike DeBoni, Group of D.C. Government Judges Seeks to Organize for First Time, Washington Post, March 31, 2013.