Fair Courts E-lert: Judge Rules Elections Initiative Unconstitutional

March 26, 2012
Judicial Discipline

1.            After the Wisconsin judicial commission filed a complaint against Justice David Prosser in relation to his altercation with Justice Ann Walsh Bradley last summer, Justice Prosser formally requested the Commission to hand over records of the proceedings, including witness statements and recorded votes.  According to the Wisconsin State Journal, Justice Prosser claims he did nothing wrong, and that the commission was “politically biased against him.”  If a panel of three appellate judges decides that the commission’s charges have merit, the case would be referred to the entire Wisconsin Supreme Court for a formal hearing and possible disciplinary action.  Justice Prosser, however, has stated that he will ask other justices to recuse themselves—according to state law, judges are disqualified from hearing any case in which they are a party or material witness.  In this case, only one Justice, Patrick Crooks, did not witness the altercation.  The result, in the opinion of former Supreme Court Justice Janine Geske, is that “the Court of Appeals makes its fact finding and makes a recommendation. And then the court can’t hear it. Then there’s—nothing. There’s no provision for what happens. I don’t think anything can happen.”

Justice Prosser Demands Info From Discipline Panel, Associated Press, March 21, 2012; Journal Times Editorial: Plenty of Blame to Go Around on State Supreme Court, Journal Times, March 21, 2012; Dee J. Hall, Prosser Plans to Ask Other Justices to Recuse Selves in Discipline Case, Wisconsin State Journal, March 20, 2012; Steven Elbow, Former Justice Says 'There's No Process to Deal' with Prosser Case, The Capital Times, March 22, 2012.

State Judicial Selection

2.            Last week sitting Justice Mary Jane Theis won the Democratic Primary for Illinois Supreme Court.  An article in the Chicago Sun Times notes that while Justice Theis was tied neck-and-neck with appellate justice Andrea Pucinski only one week prior to the primary, she dominated Tuesday’s race and beat all of her challengers by a 2-1 margin.  Discussing the support and endorsements Justice Theis received from law firms and the pro-choice Personal PAC, Justice Pucinski told the Chicago Tribune, “this supreme court election demonstrates the way that special-interest money can buy a seat on the Illinois Supreme Court.”

Dave Mckinney, Theis Steamrolls Dem Rivals by 2-To-1 Margin In State Supreme Court Race, Chicago Sun-Times, March 20, 2012; Jeff Coen, Theis Wins Democratic Nomination for Full Supreme Court Term, Chicago Tribune, March 20, 2012.

3.            A recent article by Hofstra Law Professor James Sample examines the relationship between the 2010 retention races in Iowa and Illinois, the failure of a merit selection ballot initiative in Nevada, and the U.S. Supreme Court’s decision inCitizen’s United.  According to the article’s abstract, the paper “examines the dynamics driving these events, particularly in light of Citizens United's potential to open the financial floodgates in state court races that, in their contested (as opposed to retention) iterations over the past decade alone, have already become soaked in campaign cash. For judicial retention elections nationally, the opposition to retention in the 2010 Iowa and Illinois elections represents a bell that will never be un-rung.”

James J. Sample, Retention Elections 2.010, University of San Francisco Law Review, Vol. 46, P. 383, 2011.

4.            In a 7-6 vote last Thursday the New Jersey Senate Judiciary Committee rejected Phillip Kwon, Governor Chris Christie’s nominee to the state supreme court.  According to the Newark Star Ledger, “it was the first time in modern history lawmakers have turned down a governor’s choice for the state’s highest court.”  A New York Times article about the hearing highlighted how Democrats focused on the nominee’s mother’s questionable financial dealings, and on whether Mr. Kwon had switched party affiliation—from Republican to Independent—last year in an effort to subvert the Court’s tradition of maintaining partisan parity.

Maryann Spoto, Jenna Portnoy, Salvador Rizzo And Matt Friedman, N.J. Senate Committee Rejects Gov. Christie's Supreme Court Nominee Phillip Kwon, Newark Star Ledger, March 22, 2012; Matt Katz, In a Blow to Christie, N.J. Senate Panel Rejects High Court Nominee, Philadelphia Inquirer, March 23, 2012; David M. Halbfinger, Democrats Reject Christie Choice for New Jersey’s Top Court, New York Times, March 22, 2012.

Judicial Reform

5.            Last week, judicial selection reform measures received attention in three states. In Tennessee, the House Judiciary Committee voted 9-6 to advance a proposal for a constitutional amendment to enshrine the state’s merit selection process for picking appellate judges in the constitution. On Tuesday, Montana District Court Judge James Reynolds ruled that a ballot initiative seeking to establish regional residency requirements for Montana Supreme Court justices was unconstitutional.  And in Missouri, Lynn Whaley Vogel, the state bar president, spoke out in a Columbia Daily Tribune op-ed against a proposal to replaced the state’s merit judicial selection system with gubernatorial nominations, subject to state senate confirmation.

Joe White, Haslam’s Constitutional Amendment Advances Amid Criticism, Wpln News, March 20th, 2012; Judge Rules Elections Initiative Unconstitutional, Associated Press, March 20, 2012; Marnee Banks, Supreme Court Justice Referendum Pulled from Mt Ballot, March 20, 2012; Lynn Whaley Vogel, Judge Plan Not Broken in Missouri, Columbia Daily Tribune, March 20, 2012.

Court Resources

6.            Court funding shortfalls continue to make headlines. In her state of the judiciary address last Monday, California Chief Justice Tani Cantil-Sakauye warned that budget cuts are constraining the courts, cautioning that in “[t]o honor and respect the laws signed by the Governor, the judicial branch must be funded adequately and consistently.”  Also on Monday, the Boston and Massachusetts bar associations held a “Court Advocacy Day” to lobby for additional court funding in the 2013 fiscal year. Yet state courts are not the only victims of budget shortfalls. An Associated Press article reports that in an effort to curtail costs, the federal government is considering closing sixty federal court facilities across the country, many in rural areas.  Meanwhile, in a blog post for the American Judges Association, District Judge James F. Vano of Kansas argues that “the plurality of American society needs a fully funded, free and independent judiciary in order for this constitutional republic to survive.”

Daniel B. Wood, Why California's Chief Justice is Taking On The Legislature, Christian Science Monitor, March 20, 2012; David Siders, California Chief Justice Avoids Controversy, Warns that Budget Cuts Could Imperil Judiciary, Sacramento Bee, March 20, 2012; Bob Salsberg, Mass. Lawyers, Judges Lobby For More Court Funding, Associated Press, March 19, 2012; Jeannie Nuss, Feds Consider Closing Some Courtrooms, Associated Press, March 23, 2012; James F. Vano, Court Funding Issues: A View From Kansas by Judge James F. Vano, American Judges Association Blog, March 19, 2012.