Fair Courts E-lert: Supreme Court Rejects Candidate’s Plea For Public Campaign Funds

September 10, 2012
Judicial Public Financing

1.      West Virginia’s Supreme Court of Appeals denied the request of Republican Supreme Court candidate Allen Loughry for an order compelling state election officials to provide supplemental funding under the state’s pilot public financing program for supreme court candidates. The lawsuit, in which Mr. Loughry was represented by the Brennan Center and the Nelson Mullins law firm, concerned the constitutionality of the state’s public financing program for judicial candidates, which included a provision providing supplemental funds if a publicly financed candidate’s opponent spent over a certain threshold. Similar provisions that applied only to legislative and executive elections were previously struck down by the U.S. Supreme Court, but the Court had never examined these provisions in the context of judicial elections. West Virginia’s Supreme Court concluded that there are unique and important state interests in judicial elections that are not implicated in non-judicial contests, and that the public funding program’s “goals — protecting the impartiality and integrity of the judiciary, and strengthening public confidence in the judiciary — are compelling state interests.” But the West Virginia Supreme Court ruled that West Virginia’s matching provision could not survive strict scrutiny because it was not narrowly tailored. The Court’s analysis suggested that reforms narrowly tailored to achieve these compelling state interests would survive constitutional scrutiny.

Phil Kabler, Supreme Court Rejects Candidate’s Plea For Public Campaign Funds, Charleston Gazette, September 7, 2012.

State Judicial Elections

2.      Twenty-three former Florida Bar presidents are pushing back against a campaign by the conservative group Restore Justice 2012, which opposes the retention of three Supreme Court justices and is currently promoting a “report card” in which it gives these judges failing grades. The former presidents have released a statement calling the group a “well-financed and ill-conceived political campaign.”  The resolution states, “We are concerned that the lack of public understanding of our judicial system and how it now serves to protect the public from the evils of judges being subjected to political influence, will enable well financed politically motivated groups to effectively destroy our system through unwarranted attacks on Florida Supreme Court Justices.” According to the Florida Current, “No justice has been kicked off the court in almost 40 years since Florida switched to merit retention votes, instead of competitive elections.”  An annual survey by the Florida Bar indicates that the justices in question are popular among its members. The survey was sent to 68,243 members, and responses from 7,857 lawyers showed high approval ratings for the three Supreme Court justices: “R. Fred Lewis by 92 percent, Barbara J. Pariente by 89 percent, and Peggy A. Quince by 90 percent.”

Matt Dixon, Florida Bar Presidents Blast Attempt to Oust Three Justices, Florida Times-Union, September 6, 2012; Florida Bar Poll Shows Overwhelming Support for Supreme Court Justices, Appellate Judges in Merit Retention Elections, Florida Bar Press Release, September 7, 2012; Bill Cotterell, Group Aiming to Oust 3 Justices Starts State Tour, The Florida Current, September 4, 2012.

Correction: The original text of the elert erroneously suggested that the Florida Bar had criticized a campaign opposing the retention of three Supreme Court justices.  The criticism was in fact made by 23 former Florida Bar presidents.  We apologize for any confusion, and corrected language is above.

3.      Utah is launching judicial evaluations online in order to provide better information to the electorate, according to an article in the Salt Lake Tribune. Anthony Schofield, chairman of the Utah Judicial Performance Evaluation Commission and a former judge, said of the endeavor, “Our whole purpose is to provide helpful, meaningful evaluations and recommendations to the electorate…That’s who we feel we’re working for.” The commission was created in 2008 in order to improve the information available for Utah’s retention elections. According to the article, “Judges have been rated by attorneys, court employees, and jurors on their rulings, impartiality and behavior, among other courtroom characteristics. The jurists have also been rated by volunteer courtroom observers, who have received training from the commission but are not legal experts.” According to Joanne Slotnik, the commission’s executive director, “The courtroom observation program is the first of its kind in the country…This is especially valuable. It’s like a proxy for the voter, a citizen with no dog in the fight going into the courtroom and saying, ‘How do I think this judge is treating people?’”

Aaron Falk, Utah Judicial Evaluations to Be Published Online Tuesday, Salt Lake Tribune, September 7, 2012.

Judicial Selection

4.      Judicial Selection was debated on the Diane Rehm Show (NPR), with panelists Scott Gaylord, associate professor of law at Elon University School of Law, Ian Millhiser, senior constitutional policy analyst at the Center for American Progress, and Charlie Hall, Deputy Executive Director for Public Education and Communications at Justice at Stake. The topic was focused on state judges and special interests, how selection systems influence that relationship, and whether recusal is used effectively. Professor Gaylord argued, “if there’s, you know, hard proof that judges are being bought, then that’s certainly a concern and can undermine the system. But the judicial elections, of course, allow for the opportunity to vote those people out of office.” Charlie Hall observed that “we have taken polls ourselves, and 75 percent of the public believes that campaign contributions can affect judges’ decisions, and almost 90 percent believe that judges should not hear cases involving major campaign donors.”

Diane Rehm, Fairness in State Courts: Electing Versus Appointing State Judges, NPR, September 5, 2012.


5.      Wisconsin is implementing a program called “Open Courts,” which is intended to increase the public’s understanding of the state and federal court systems. The program was launched in Colorado and “[t]o date, volunteer attorneys and judges have made more than 350 presentations to over 11,000 people.” According to the Wisconsin State Bar Association, “A 2008 study commissioned by the State Bar shows that a lack of information for adults about our court system negatively impacts their perception of the courts as fair and impartial.” According to Public Education Committee Court Education Task Force co-chair Gail Richardson, “We look forward to working with not only lawyers and judges from around the state, but leaders in education, the media, and business… Using their perspective and expertise will help ensure that we fully identify the gaps in public understanding, and that we successfully develop and market nonpartisan, interactive programs that reach the widest audience possible.”

New State Bar Program Improves Adult Understanding of How Wisconsin Courts Work, Wisconsin State Bar Association, September 5, 2012.