Fair Courts E-lert: W.Va. Supreme Court Hears 'Rescue' Funding Arguments in Case Brought by Court Candidate

September 5, 2012
State Judicial Elections

1.      Oral arguments were held yesterday in the West Virginia Supreme Court in a lawsuit over the constitutionality of the state’s public financing program for judicial candidates, which includes a provision providing additional public money if the candidate’s opponent spends 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 has never examined these provisions in the context of judicial elections. The New York Times published an editorial on the issue, stating, “As the Supreme Court has recognized in other cases, including a major 2009 case from West Virginia that involved a litigant’s outsize judicial campaign spending, preserving public confidence in the impartiality of the judiciary is essential. [Judicial candidate Allen Loughry II] should get his disbursement.”  The Brennan Center represents Mr. Loughry in this lawsuit.

A Fight for Fair Courts, New York Times, September 3, 2012; Lawrence Messina, W.Va. Supreme Court Hears 'Rescue' Funding Arguments in Case Brought by Court Candidate, Associated Press via The Republic, September 4, 2012.

Judicial Ethics

2.      The controversy over who will preside as the next chief justice of the Louisiana Supreme Court was decided by a federal court. The chief justice position is based on seniority, and the dispute centered on whether Justice Bernette Johnson, who first joined the Court as an appellate judge exclusively assigned to the Supreme Court under the terms of a voting rights consent decree, should have her years as an appellate judge counted towards her seniority. The Wall Street Journal reports, “U.S. District Court Judge Susie Morgan held that Justice Johnson’s first six years on the court, in which she served in a special seat, should be credited toward her term of service, making her the most-tenured member of the court and the rightful successor to the outgoing chief justice.” Justice Johnson will be the first African American woman to serve as Chief Justice.

Steve Eder, Federal Judge Picks Winner in Louisiana Supreme Court Dispute, Wall Street Journal, September 4, 2012; Ruling Clears the Way for First La. African-American Chief Justice, NOLA Defender, September 3, 2012; Jonathan Tolive, Judge Susie Morgan Rules Bernette Johnson has Seniority to be Next Chief Justice, New Orleans Times-Picayune, September 1, 2012.

Merit Selection

3.      A case in Tennessee on the merit selection of judges has hit another obstacle as three of the five judges appointed by Governor Bill Haslam to hear the case have recused themselves. This comes after all five of the Supreme Court justices recused themselves last month.  The lawsuit alleges that the merit selection process in Tennessee violates the state constitution. According to the Chattanooga Times Free Press, “All three men [who recused themselves] have ties to Tennesseans for Fair and Impartial Courts, which has lobbied the General Assembly against changing the system” that is challenged in the lawsuit. The recusal order states, “Although the undersigned special judges have not formed an opinion about the constitutionality of the contested language of the Tennessee Constitution governing the election of appellate judges, they find that it is of utmost importance to protect the integrity of this court and to avoid allegations challenging the independence, partiality or fairness in its decision making process, and opinions.”

Tom Humphrey, Political Notebook: Haslam-Picked Judges Recuse Themselves from Selection Challenge, Knoxville News Sentine, September 3, 2012; Andy Sher, 3 Tennessee Justices Recuse Themselves from Special Supreme Court, Chattanooga Times Free Press, August 31, 2012.

4.      An editorial in the Jefferson City News-Tribune discusses a contentious ballot initiative Missouri voters will be deciding on in November, which would change the selection method for judges. Currently, “The governor selects a judge from a slate of nominees advanced by a selection panel. The seven-member panel for the appeals and Supreme Court vacancies includes: a supreme court judge (usually the chief justice); three non-lawyer citizens appointed by the governor every other year, to serve six-year staggered terms; and three lawyers, elected every other year by members of the Missouri Bar in their region, also to serve six-year staggered terms.” The new plan, if approved, would include, “Replacing the high court judge with a non-voting retired judge; increasing the number of governor-appointed citizens from three to four; and allowing the governor to appoint all four citizen members during the four-year term, rather than naming only one member every other year. The lawyers’ elections wouldn’t change.” Proponents of the change argue the changes would “break the monopoly that trial attorneys and interest groups have on the selection of judges… [allowing] people to exercise more accountability through our elected governor.” However, opponents, including former Chief Justice William Ray Price Jr., say “the existing plan ‘tries to impose checks and balances and moderates the type of people (on the panel) to keep them away from politics and big money contributions as best we can.’” The editorial concludes, “The amendment would transfer power to the governor, thereby strengthening the executive branch and weakening the judicial branch.”

Group Opposes Weakening of Judicial Branch, Jefferson City News Tribune, August 29, 2012.

Judicial Nominations

5.      An editorial this week points out the toll that the lack of federal judicial confirmations is having on the mid-west, especially in light of the recent announcement that “Judge Michael Melloy, who sits on the United States Court of Appeals for the Eighth Circuit, will take senior status, effectively entering retirement in January.” The editorial states, “When a district goes without enough judges, cases pile up and justice then becomes a waiting game, usually won by whichever side has the most money to afford waiting the longest. It slants the playing field in favor of the plaintiff or defendant with the deepest pockets. This is not how our American justice system is supposed to work…. Many nominations that advanced out of the Judiciary Committee with strong bipartisan support cannot even get a vote on the floor. In February, Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee, said in an address on the Senate floor that ‘these delays are as damaging as they are inexplicable.’”

Carol Bloch and Jan Schneiderman, Judicial Vacancies Adversely Affect Midlanders, Omaha World-Herald, August 30, 2012.