Arkansas prosecutor Stephanie Potter Barrett, who is seeking a seat on the state’s Court of Appeals, has come under criticism after it was revealed that her aunt was collecting signatures to get Barrett on the ballot inside the courthouse. More distressingly, at least one of the signatures favoring Barrett’s candidacy was from a juror seated in a murder trial which Barrett was prosecuting.
Barrett insists that she did nothing wrong; she did not collect the signatures herself, and she argues that the courthouse is a public space at which collection of signatures is permitted. But others are not so sure: several ethics experts pointed out that judges cannot use the courthouse to engage in political activity, and suggest that a judicial candidate should be equally restricted. The defendant in the murder trial is also seeking a mistrial based on the juror signature.
It is entirely possible that Barrett really believes that she has done nothing wrong. And it is also entirely possible that the juror who signed the petition knows nothing about Barrett, or even associated her petition with the individual prosecuting the case. (Some people will sign anything.) But the optics are terrible. The courthouse appears politicized, and the fairness of the murder conviction is in doubt.
Reasonable people may differ over the propriety of choosing judges through a direct election. But elections open the door to these kinds of stories, and these kinds of stories erode public confidence in the judiciary and the administration of justice itself.
The chicanery surrounding judicial elections in New York City, and especially Brooklyn, will come as no surprise to longtime readers of this blog. But here we go again:
Brooklyn lawyers who decide who can get the crucial Democratic ballot line to run for prized judicial seats are getting jobs as legal guardians and referees from the very judges they’re charged with reviewing — and their law firms are appearing before those same judges in active cases.
Of the 25 attorneys listed as serving on the Brooklyn Democratic Party’s judicial screening panel in 2019, at least five have been given jobs as court-appointed lawyers by the judges they’re tasked with reviewing, the Daily News has learned.
Previous coverage of the Brooklyn’s high quality approach to selecting judges here, here, here, here, here, and here.
The United States Courts have quietly imposed a new ban on campaign donations and partisan political activity by court employees and administrative staff. The new rule went into effect March 1.
An Administrative Office spokesman told the ABA Journal that only “bright-line” partisan activity–not issue advocacy–is prohibited. Moreover, court employees may still donate time and energy to charities, religious organizations, and professional organizations.
This is a sensitive area, which requires a carefully balanced policy. The courts are surely motivated by the need to appear politically neutral and unbiased, a concern that applies to court employees as much as judges. But the “bright line” that the Administrative Office suggests is quickly likely to become blurry in practice. Is a donation to an advocacy group like the National Rifle Association or Planned Parenthood a partisan activity within the meaning of the new rule? Such organizations are so closely tied in the public mind to a particular political party that they can raise the same specter of partisanship even if the organizations themselves are technically nonpartisan.
There are also First Amendment issues at stake. Federal judges are bound by a Code of Judicial Conduct, which limits their ability to engage in partisan political activity as a matter of professional ethics. But the Supreme Court has concluded that notwithstanding prevailing codes of conduct, state judges retain First Amendment rights to speak on political matters. Court employees (who are not bound by a judicial code) would seem to have an even stronger argument for First Amendment freedoms.
The Administrative Office is keeping the new policy largely internal for now, and has said that it will address individual questions as they come up. I predict that this is likely to turn into a headache for the AO going forward.
The Institute for the Advancement of the American Legal System (IAALS) has published Transparent Courthouse Revisited: An Updated Blueprint for Judicial Performance Evaluation. The document significantly updates a 2006 edition of the same publication. It draws on best practices from around the country on evaluation commissions, the evaluation process, reaching recommendations, funding, and disseminating results. It’s an important read for anyone interested in state courts and judicial performance evaluation (JPE).
More on the IAALS Quality Judges Initiative here.