Category: judicial selection

Lawsuit in Kentucky judicial race after primary winner’s sudden death

Last week, I wrote about the sudden and tragic death of Kentucky lawyer Danny Alvarez, who had won a primary election for state judge 24 hours earlier. Alvarez was set to square off against the second place winner in the fall election. After his death, the local Board of Elections ruled that the second-place finisher would be the sole candidate on the November ballot.

Now Karen Faulkner, who finished in third place by a mere seventeen votes, is challenging the decision and arguing that she should be on the ballot as well. Details here.

Judicial candidate’s sudden death throws election into disarray

Last Tuesday, Danny Alvarez won the primary for his judicial race in Kentucky. As the top vote-getter, Alvarez was set to square off against the second-place finisher, Tanisha Hickerson, in the fall general election. Hickerson herself secured second place by only seventeen votes over third-place finisher Karen Faulkner.

Tragically, Alvarez died suddenly on Wednesday. While his family and friends understandably grieve, the election officials were faced with an unexpected problem: what to do about the general election. Confessing that there is no recent precedent for this situation, the Secretary of State’s Office has announced that Hickerson would be the sole candidate on the ballot in November. Given how close Hickerson and Faulkner were in the primary, it seems likely that Faulkner will ask for a re-canvassing of the votes already cast. But even if the re-canvassing does not change the result, one can only imagine that Hickerson did not want to win a judgeship in this manner.

Rhode Island state courts to receive new magistrates, but not without controversy

The Rhode Island court system recently received good news when the state’s House Judiciary Committee approved a bill that would allow the Chief Judge of the District Court to appoint an unspecified number of new magistrates. Currently, the District Court is operating with only two magistrates.

But the bill’s advance remains controversial. Other judges in the state are vetted by a nominating commission before being appointed by the governor. And over the past 25 years, many of the magistrates who were appointed outside the political process have had political connections. (Indeed, many are former legislators.) Can Rhode Island balance the resource needs of its court system against political patronage concerns that could erode the courts’ legitimacy?

Judge Van Pelt wins in Georgia; Justice Goodson advances in Arkansas

I previously noted the bizarre story of Georgia Superior Court Judge Ralph Van Pelt, a twenty-year veteran of the court who was promised a “blood sport” campaign by a local kingmaker. Last night, Judge Van Pelt fought off his challenger, Melissa Hise, winning over 52% of the vote.

A couple states away, Arkansas Justice Courtney Goodson advanced to a two-way race with a local attorney to keep her seat, after a whirlwind couple of weeks in which Goodson sued an out-of-state group for broadcasting defamatory attack ads against her. That lawsuit produced a preliminary injunction against the ads in some Arkansas counties but not others, and the case is still pending.

Perhaps the cauldron of a political campaign improves one’s skill, patience, and approach to judging. But I am having trouble seeing it.

Arkansas judges issue conflicting orders on judicial election attack ads

I reported last week on a lawsuit brought by Arkansas Supreme Court Justice Courtney Goodson against the Judicial Crisis Network, a special interest group that has been running attack ads against her in the days leading up to the state’s nonpartisan supreme court election. Justice Goodson’s initial request for a temporary restraining order was granted by one trial court, with the understanding that a more complete hearing for a preliminary injunction would take place later in the week.

On Friday, that hearing did take place — in front of a different judge after the original judge had to recuse due to a conflict. The new judge, Pulaski County Circuit Judge Chris Piazza, found that Justice Goodson was likely to prevail on the merits of her claim, and granted the preliminary injunction, thereby blocking all television stations from running the attack ads. But in a strange twist, just hours later a second judge in the same circuit declined to grant the injunction in a parallel case. The dual outcomes mean that voters in some parts of Northwest Arkansas have been able to see the attack ads in the final days of the campaign, while others have been barred from doing so.

An excellent summary of the events, with far more detail than I care to set out here, can be found in this Arkansas Online story.

As I previously noted, this case raises a variety of important issues–about freedom of expression and its limits, the power of injunctions, and the wisdom of electing judges. We’ll continue to follow it through Election Day and beyond.

When elected judges rule on judicial elections

On Monday, Arkansas state trial judge Doug Martin issued a temporary restraining order preventing the conservative Judicial Crisis Network (JCN) from airing television ads critical of Arkansas Supreme Court Justice Courtney Goodson. The ads alleged, among other things, that Justice Goodson accepted monetary gifts from lawyers. Justice Goodson sued JCN, alleging that the ads were false and defamatory. The election is scheduled for next Tuesday, May 22; early voting has already commenced.

The TRO raises a number of evergreen issues in judicial elections, including the degree to which it constitutes an unconstitutional prior restraint on free speech, and whether the harm done to the judicial system by attack ads outweighs any benefits from selecting judges by the ballot. The additional twist here is that the propriety of conduct during judicial elections was itself determined by an elected judge — that is, someone who has a clear stake in the judicial selection process. Indeed, Judge Martin is no stranger to election controversies, having been censured for statements made about his opponent in the 2014 campaign. Of course, any Arkansas state judge would have some professional interest in the outcome of the case (since all face election), and I am not aware of any aspect of Justice Goodson’s complaint that would have made the case fit to be heard by a federal judge with a lifetime appointment.

As the name implies, a TRO is used to stop offending activity for only a short period, and typically expires within a few days. This TRO is no exception; the parties will return to court tomorrow for further hearings on whether to issue a preliminary injunction. Given the high profile of the case and the stakes for Judge Martin’s reputation, I expect that he will carefully and extensively probe the First Amendment issues with the parties before issuing another order.

 

A rapid judicial appointment cascade

The White House recently announced that President Trump had nominated Judge A. Marvin Quattlebaum to a seat on the Fourth Circuit Court of Appeals. Judge Quattlebaum currently sits as a federal district judge in South Carolina–a position he has held for only two months.

There is nothing inherently wrong with seeking to promote* Judge Quattlebaum to the appellate bench. But choosing a sitting district judge will once again create a vacancy in South Carolina, and that vacancy may take much longer to fill. Politics may well dictate filling appellate benches, especially in election years. But the trial courts, the place where the public most closely and commonly interacts with the judicial system, risk becoming the forgotten child. They deserve to filled as rapidly, and with as much care, as do appellate court vacancies.

* Many on the federal district bench would quibble with this term: the trial judges are the real judges! I use it here only in the sense that the Fourth Circuit is higher in the federal hierarchy.

More politicization of state judicial elections

Republicans in North Carolina and Pennsylvania have been rightly criticized for attempting to politicize their state courts through ill-advised, partisan legislation. But the Democrats are hardly saints in this area. With today’s judicial election in Wisconsin, several media outlets have pointed out the rampant politicization of the entire election process, which includes endorsements of the “more liberal” supreme court candidate by Joe Biden and Eric Holder. And the Daily Beast has a piece entitled National Democrats Want to Make Judicial Elections the Next Crest in the Blue Wave, which quotes Faiz Shankar, national political director for the ACLU:

“Increasingly, I think, us along with a lot of progressive actors have really felt that elections pose one of the most powerful ways to change policy…. In a large race…there are so many issues at play and it’s unlikely that you could just make criminal justice the sole major issue at play. Whereas in some of these smaller races, and ones that have less turnout, you can really make it a threshold question.”

Ugh.

Back in 2011, I studied the Wisconsin Supreme Court election, and concluded in a subsequent article that even in that ugly, politicized race, voters showed that they were mostly concerned about a candidate’s capacity for neutrality and procedural fairness, not partisan ends. I hope that Wisconsin judicial voters continue to rise above the partisan politics that the national parties are flinging their way.

Connecticut Senate rejects McDonald nomination

Connecticut Supreme Court Justice Andrew McDonald’s bid for that court’s chief justiceship came to an end yesterday, when the state senate rejected his nomination by a 19-16 vote. One Senator abstained due to personal conflicts.

The nomination seemed troubled from the start. McDonald has been a close political associate of Connecticut Governor Dannel Malloy for years, and that affiliation hurt him during the confirmation process. He drew a 20-20 tie vote in committee, and barely passed through the Connecticut House on a 75-74 vote. In the Senate, his nomination was opposed by every Republican, as well as one Democrat.

Some have been quick to blame the failed nomination on McDonald’s status as an openly gay man, suggesting that the opposition was driven by homophobia. But cooler heads have pointed out that McDonald was not helped by Malloy’s animated approach to the nomination, which evidently included promises to fill the next open seat on the court with a Republican. If anything, McDonald’s nomination was undone by classic politics — that is, authentic disputes over public policy — rather than modern identity politics. Better than his nomination had not come down to politics at all, but the insinuation that he is not chief justice today because of his sexual orientation is offensive to all sensible people.

Connecticut governor floats Supreme Court horse-trading

Still working to get his nominee Andrew MacDonald confirmed as the state’s chief justice, Connecticut Governor Dannel Malloy has “signaled a willingness” to fill MacDonald’s Associate Justice seat with former Republican Senator Andrew Roraback. Roraback is currently a trial judge.

The state senate seems unconvinced:

Senate Republican leader Len Fasano of North Haven said Thursday the confirmation of McDonald, who would be the first openly gay chief justice, will be made independently of Roraback’s chances for professional advancement.

“I believe the governor has not made Roraback a nominee,” Fasano said. “The issue is not whether or not he does. The issue is whether or not Justice McDonald should be chief justice.”