Fair Courts E-lert: Florida Retention Elections Remain a Hot Topic

October 2, 2012

Florida Retention Elections Remain a Hot Topic, FL GOP and Americans for Prosperity Weigh In
Florida’s judicial retention elections continue to attract attention as more people and groups weigh in. According to the Bradenton Herald, Americans for Prosperity, a conservative advocacy group associated with the Koch Brothers, has announced a statewide campaign, including TV advertisements, “chastising the [three] justices [up for retention] for ruling against a 2010 proposed constitutional amendment intended by the Legislature to counter President Barack Obama’s Affordable Health Care Act.” According to the President of the Florida Chapter of the group, “We’re not advocating for the election or defeat of any of the justices[;] what we’re attempting to do is call more attention to them advocating from the bench.” Three days before the announcement by Americans for Prosperity, the state GOP announced their opposition to the justices’ retention in a move that has drawn harsh criticism for politicizing the election. Justice R. Fred Lewis, one of the justices up for retention this year, is quoted in the Bradenton Herald as saying, “If we allow politics to overtake the three branches of government, we no longer will have the democracy we’ve enjoyed for 200 years… I’m trusting that somewhere in the middle there are fair-minded individuals who believe the court system is too valuable to kill through partisan politics.” In addition, six former Supreme Court justices authored an op-ed in the Miami Herald criticizing the state party’s action, concluding, “The [Republican Party of Florida’s] recent unprecedented attempt to politicize the judiciary — and to remove three Supreme Court justices based only on disagreement with one (or even a few) decisions — undermines the purpose of the merit selection and retention process, which is precisely to remove partisan politics from the judiciary. As former justices of the Florida Supreme Court, we hope that such partisan actions will not succeed in depriving Florida citizens of the fair and unbiased judges that our merit system is intended to provide.”

Mary Ellen Klas, Florida Justice Warns of Assault on the Courts ‘Through Partisan Politics’, Bradenton Herald, September 25, 2012; Matt Dixon, GOP's Campaign Against Justices Walks A Fine Legal Line, Florida Times-Union, September 26, 2012; Harry Lee Anstead, Raoul G. Cantero, Arthur J. England, Jr., Stephen H. Grimes, Major B. Harding And Ben F. Overton, Six Former Florida Justices Speak Up Against GOP Attempts to Politicize Judiciary, Miami Herald, September 30, 2012; Paige Parrinelli, Florida GOP Opposes Three Florida Supreme Court Justices, WUFT, October 1, 2012; John Kennedy, GOP Campaign Against Florida Justices Draws Fire From Inside and Outside the Party, Palm Beach Post, September 24, 2012; Gray Rohrer, Former GOP lawmaker hits out at RPOF opposition of Supreme Court justices, The Florida Current, September 24, 2012; Martin Dyckman, An Independent Court is at Stake in Florida, Tampa Bay Times, Septemember 25, 2012; Americans For Prosperity Launches Ad Attacking Florida Supreme Court, Reuters via The Huffington Post, September 25, 2012.


Supreme Court Chooses Not to Hear an Appeal Challenging Iowa’s Judicial Nominating Commissions
The U.S. Supreme Court announced that it would not hear an appeal challenging how members of Iowa’s judicial nominating commission are chosen. Iowa’s nominating commission, which recommends judicial candidates to the governor when vacancies arise on the Iowa Supreme Court or the Iowa Court of Appeals, consists of 15 members, including seven attorneys elected by the resident members of the Iowa State Bar. The lawsuit argued that the nominating commission’s structure violated the Equal Protection Clause of the Fourteenth Amendment because non-lawyers have no say in the election of the attorney commission members. The Court of Appeals for the Eighth Circuit rejected this challenge, holding that “Iowa’s legitimate interest in selecting the most qualified judges encompasses an interest in having the views and expertise of Iowa’s attorneys represented on the Commission to assist with this selection. We further conclude the State’s decision to allow members of the Iowa Bar the opportunity to elect seven of their peers to serve as the Commission’s attorney members bears a rational relationship to this legitimate interest.”

Supreme Court Won’t Hear Challenge to Iowa Judicial Nomination Commission, Associated Press via The Washington Post, October 1, 2012; Read the decision here [PDF].


Level of Judicial Diversity Improves in Maryland, and Is Criticized in Georgia
Maryland has seen an increase in women serving on the bench, and has a higher percentage of female judges than the national average. According to an article distributed by the Associated Press, “Of the state’s 280 judges, 107 (or 38.2 percent) are women, compared with 99 of 274 judges (36.1 percent) as of July 1, 2011, according to Maryland Judiciary data… And of Gov. Martin O'Malley’s 102 judicial appointments since taking office in January 2007, 46, or 45.1 percent, have been women, an uptick from 43.7 percent as of last September.” According to the same article, the national percentage of women on the bench is 27.5 percent. Sitting and former judges gave mixed reviews to Maryland’s record. According to Baltimore City Circuit Judge Pamela J. White, “In the practice of law, we’ve come a long way but not far enough.” While Maryland is celebrating some success with increased gender diversity among judges, an article co-authored by Leah Ward Sears, former Chief Justice of the Georgia Supreme Court, criticizes stalled efforts to improve racial and gender diversity in Georgia. According to the article, in Georgia “there are 464 current state court judgeships within the appellate, trial and juvenile courts. Only about 100 of these judges are women; 53 are African-American, one is Asian, and one is Hispanic.” Justice Sears writes, “Some opponents resist the idea of systematic recruiting efforts for the judiciary based on demographical data — after all, ‘justice is blind,’ they say. But this thinking ignores the inherent prejudices everyone in the human race harbors and the inevitable biases that exist as a result.” Her suggestions to correct some of the imbalance include: increasing minority representation on Georgia’s judicial nominating commission, giving judges a pay raise, partnering with local minority bar organizations, and creating a judicial academy for potential candidates.

Number of Women Judges on the Rise in Md., Associated Press via NECN, September 23, 2012; Leah Ward Sears and Kimberly Bourroughs, Raise the Bar on Judicial Diversity, Daily Report, September 24, 2012.


Pennsylvania Supreme Court Rules on Request for Funding from Courts
Pennsylvania’s Supreme Court issued a unanimous decision rejecting a petition for the General Assembly to provide more funding for state courts in accord with an earlier decision. The history of the case “began in 1985, when Allegheny County sued the state, saying Pennsylvania’s 1968 constitution required it to pay all the costs of the unified judicial system. The Supreme Court ruled 4-2 in the county’s favor but put the decision on hold to give lawmakers time to pass appropriate funding. That did not occur. In 1992, Allegheny and the commissioners’ association went back to court, seeking to have the General Assembly follow the previous ruling, and the Supreme Court ruled in their favor, ordering a master to come up with recommendations about how to proceed…. The Supreme Court has never formally approved or disapproved of the master’s recommendations, so the counties went back to court in 2008, which was the issue decided on Wednesday. The justices did not overturn the court’s previous rulings, but they also did not grant the counties’ request to enforce them.” The opinion states, “We trust in the prospect of further cooperation of the coordinate branches to determine what local court functions are necessary, or wise, to be incorporated within a unified, centrally funded system….The situation is not now as it was in 1996, when the court was faced with legislative inaction.”

Mark Scolforo, Pa. Supreme Court Steps Back From Longstanding Legal Battle Over Funding Judiciary, The Associated Press via The Republic, September 26, 2012.


The Nation’s Supreme Court Issue
The Nation’s October 8 issue is dedicated to questions and issues around the Supreme Court, with an emphasis on the influence of money and corporate interests in the judiciary. One article, by Dahlia Lithwick, looks at how the Supreme Court favors corporations over everyday citizens. She writes in the article, “By manipulating seemingly technical rules—from pleading standards to standing to class-action requirements—the Roberts Court has made it harder and harder for employees, consumers and defendants to seek justice in court, and easier for big companies, government agencies and polluters to evade accountability.” Other articles include “Citizens United and the Corporate Court” by Jamie Raskin, “The Roberts Court and Wall Street” by Michael Greenberger, and “Isolating America’s Workers” by Craig Becker and Judith Scott.

Various Authors, The One Percent Court, The Nation, October 8, 2012.