Ugly campaign tactics in upstate New York judicial race

Law.com reports on a campaign mailer sent to residents of Sullivan County, New York, which accuses a Democratic judicial candidate of being a socialist and favoring the legalization of drugs. Her Republican opponent has taken full credit for the mailer, which was designed to look like a local newspaper. The accused candidate has denied the allegations of socialism and drug legalization, and has filed a complaint with the state broad of elections.

Judicial candidates acting injudiciously.

 

A swap of judges to keep the machinery of justice moving

This is an interesting story from Owensboro, Kentucky. Judge Joe Castlen retired from the local Circuit Court, but agreed to keep working in his position until a new judge could be elected to take his place. And although the election will not take place until next month, we already know the winner: District Judge Lisa Payne Jones, who is the only candidate on the ballot.

Jones’s inevitable ascension to the Circuit Court leaves a hole on the District Court, and the process of filling that seat might take some time. So Judge Castlen, who previously served on the District Court, agreed to fill that seat again until a successor is found — meaning effectively that he will swap places with Judge Jones.

Good for Judge Castlen for agreeing to take on the new role so that the District Court can keep up with its docket. It’s an elegant, if temporary, solution to a curious staffing problem.

(Even more) corruption of the judiciary in New York City

The New York Times periodically turns over the rock known as judicial selection in the Big Apple, and lo and behold, the nasty little critters underneath always seem to be thriving. This time it’s a story on corruption in the Bronx, where a Democratic party boss seems to have punished a local judge for refusing to hire his hand-picked crony as a “confidential assistant.”

What a colossal embarrassment. Why do New Yorkers tolerate this?

 

New Mexico Supreme Court invalidates change to judicial election cycle

The New Mexico Supreme Court has invalidated portions of a law, known as a “50 year tuneup,” which would have changed the timing of certain judicial elections in the state. The state already elects a governor and the President in the same election year, and the legislation would have placed at least some judicial elections in interceding cycles (2022, 2026, and so on). But the law was challenged by coalitions representing state judges, as well as several district attorneys and others elected officials whose terms would be immediately affected. The court concluded that changing the timing of elections could not be accomplished without a change to the state constitution.

The sponsors of the law called the problem “an honest mistake on our part,” and are working to change the effectuate the change through a constitutional amendment.

The most pointless judicial election ever?

One candidate was declared ineligible. The votes were counted anyway. But to what end?

A remarkable story from Alabama. Last fall, prosecutor Linda Hall won the Democratic primary for a seat on the Jefferson County Circuit Court located in Birmingham. But before the general election, her primary opponent challenged her victory, alleging that Hall did not meet the state’s requirement that judicial candidates live in the circuit for at least 12 months before the election.

The court agreed, and held that Hall was ineligible to run in the general election. But the ballots had already been printed, so the primary challenger was left out in the cold. Moreover, the court declared that the votes in the general election must still be counted. Despite her ineligiblity, Hall handily defeated the Republican incumbent, Teresa Pulliam, by 16,000 votes in November.

Unsurprisingly, Hall’s electoral victory brought a new round of litigation, this time by two Jefferson County voters who challenged Hall’s fulfillment of the residency requirement. In a trial in late 2018, Hall testified that over the previous 12 months she had lived in four different apartments in the Birmingham area, as well as a number of extended stay hotels in St. Louis, Missouri. Hall explained that she had to keep moving apartments due to problems with mold, foul odors, and smoking neighbors. By early October — just weeks before the general election — she landed in her final apartment, which was actually located within Jefferson County.

After trial, Hall was again declared ineligible for the judgeship, and enjoined from taking the oath of office. This past week, the Alabama Supreme Court affirmed that decision without opinion.

So, to recap: a judicial candidate who was declared ineligible for office before the general election was nevertheless elected, and later barred from taking office. Three different courts had to get involved. And at the end of the day, the people of Birmigham County had an unfilled judicial seat. (In another twist, Hall’s opponent, Judge Pulliam, was quickly appointed to a different seat on a criminal court. So losing an election evidently isn’t much of a career killer.)

I suspect that there is much more behind this story, at least as to the motivations of those charged with putting judges on the Alabama bench. It isn’t much of a surprise that Judge Pulliam, a Republican, would be reappointed to another seat by the state’s Republican governor. Likewise, I suspect that Ms. Hall’s electoral victory was a product of party and identity politics. Hall is an African-American woman running as a Democrat in a city that is more than 70% African-American and which regularly elects Democrats to office. It is well-established that many (perhaps most) judicial voters have little knowledge of the candidates before them, and accordingly look for low-salience cues like party affiliation, race, gender, or last name to aid their decisions. If the system worked well, voters would have recognized that a vote for Hall was meaningless. But they voted for her in droves.

It may well be that given Alabama’s dark history of racial inequality, a pure appointment process for judges may not create sufficient public trust in the judiciary. Allowing communities to choose their own judges through elections may therefore be a necessary accommodation. But if we are to put judicial candidates before the voters, at least those candidates should be minimally qualified, and at least the voters should be minimally discerning.

 

 

Arkansas prosecutor under fire for collecting signatures for judicial run while trying a murder case

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.

Final arguments conclude in NAACP’s challenge to Alabama’s judicial elections

The slow-moving federal court challenge to Alabama’s method of electing its appellate judges reached another milestone on Wednesday, when the parties gave their final arguments in a case filed back in 2016.

The Alabama State Conference of the NAACP is arguing that the Alabama’s method of at-large voting for state appellate courts impermissibly dilutes the votes of African-American voters, in violation of the federal Voting Rights Act. As evidence, the plaintiffs point to the fact that no black candidate has ever been elected to the state’s civil or criminal appellate courts, and only two have been elected to the state supreme court. The state has countered that standard party politics, not race, provides the best explanation for the election outcomes.

A federal judge denied the state’s motion to dismiss the case, and held a bench trial last November. After a lengthy delay brought on by the state’s appeal to the Eleventh Circuit on the denial of the motion to dismiss, the trial court held oral arguments to conclude the bench trial this week.

There is no indication when the judge will issue his decision. But whatever his final ruling, this case is a nice example of how life tenure shields him from some of the inevitable political fallout that will result from any decision he makes. If only his counterparts on the state bench enjoyed that same freedom from political pressure. But as both sides in the case made clear on Wednesday, viewing judges as politicians seems to be par for the course in Alabama.