It worked! Chicago lawyer who changed his name to sound more Irish is finally elected as a judge

This blog has followed the story of Phillip Spiwack, a Chicago-area lawyer who legally changed his name in 2012 to Shannon O’Malley. The reason for the change: he was planning to run for judge in Cook County, and recognized the stubborn reality that having an Irish woman’s name would be a valuable commodity at the polls.

Spiwack lost his first race in 2010 while using his original name. The next year, the DePaul Law Review published a study showing that Cook County judicial candidates with Irish and female names tended to have an advantage in judicial elections. Spiwack changed his name to Shannon O’Malley shortly thereafter, and then deliberately sat out judicial races for the next several cycles to circumvent a state law requiring candidates who undergo a name change within three years of an election to disclose their old names on the ballot.

The plan worked. O’Malley won his election last week, even though he refused to submit his qualifications to any local bar associations and therefore did not receive any bar recommendations.

O’Malley may or may not prove to be a good judge. But this whole episode speaks poorly of the low-information judicial voters in Chicago.

Rural Arizonans choose merit selection

Arizona’s constitution requires that counties with a population over 250,000 must select their superior court judges using a merit selection model: judges are appointed by the governor based upon recommendations from a nonpartisan nominating commission, and then subject to periodic retention elections. Smaller counties, by contrast, typically elect their judges in contested elections.

But citizens in these smaller population counties may opt into the merit selection process by approving the change during a general election. And that is exactly what Coconino County voters did last week. It marks the first time that a rural Arizona county has chosen merit selection over the standard, party-affiliated election system. Coconino County Judge Dan Slayton provides more detail on the change at the IAALS Blog.

I applaud the move!

Post-election judicial roundup

Many states had judges and issues affecting the judiciary on their ballots this week. Here are some of the more noteworthy outcomes from several western states:

In California, state supreme court Associate Justice Carol Corrigan was retained by voters by about a 2-1 margin. Corrigan had been the target of an anti-retention campaign by several LGBT groups, who took issue with her dissent in the state supreme court’s decision legalizing same-sex marriage in 2008. Happily, most voters (regardless of how they felt about that case) properly viewed that opinion in the context of hundreds that Justice Corrigan has issued over her judicial career.

In Alaska, Judge Michael Corey was not nearly as lucky. In a situation reminiscent of the mob that removed Judge Aaron Persky in California earlier this year, Judge Corey was targeted for non-retention by a group calling itself “No More Free Passes.” The group took issue with Judge Corey’s decision to approve a “no jail time” plea deal for a man accused of strangling a woman until she fell unconscious, and then masturbating on her. The problem for the prosecutors and for Judge Corey was that this sickening act does not qualify as a sex crime under Alaska law. Consistent with existing law, the district attorney proposed a plea deal that allowed the defendant to walk away without jail time, and Judge Corey approved it.

It’s not hard to see why this decision would raise anger about the state of the law, and mobilize people to change it. But instead, Judge Corey became the target, and “No More Free Passes” ran a successful social media campaign to prevent his retention. This despite his excellent performance review (which was issued before the plea deal was approved).

The leader of “No More Free Passes” admitted that its removal of Judge Corey was largely symbolic, and that its main focus was on changing the law. In a Facebook post, she stated that the group “will no longer be discussing Mr. Corey…. We wish him nothing but the best in his future.” That is cold comfort for an excellent judge whose only fault was following the law. Congratulations to “No More Free Passes” on destroying a judge’s career purely as an act of symbolism. I hope you sleep well at night.

In Colorado, voters narrowly defeated Amendment W, which would have streamlined the judicial retention ballot in future elections. A majority of voters supported the amendment, but “yes” votes did not meet the 55% supermajority threshold required for passage.

Out of more than 100 judges on the Colorado retention ballot, two were not retained by voters. Both judges had received poor performance evaluations from Colorado’s official JPE program.  Several other judges were targeted by anti-retention groups or individuals, but  had received strong performance evaluations and were comfortably retained by voters.

In New Mexico, which uses a mixed judicial selection system (judges must initially run for their seats in contested elections, and afterward face retention), voters radically overhauled the state court of appeals. Four new judges were elected–all women, and all Democrats–giving women eight of the ten seats on the court. Another court of appeals judge, Michael Vigil, left his seat to run for the state supreme court, and handily defeated incumbent Gary Clingman. Vigil’s seat will be filled by gubernatorial appointment. The only male judge left on the court, Judge J. Miles Hanisee, was retained by a comfortable margin.

New Mexico voters were also asked to “clear the bench” of judges by an anonymous group starting early this year. While the movement had little impact on the state’s appellate and district courts, four Metropolitan Court judges failed to reach the 57% threshold for retention. Of the four who were not retained, two were not recommended for retention by the state’s judicial performance evaluation commission. Two other judges who likewise were not recommended for retention just squeaked over the retention threshold, with 57.15% and 57.02% of the vote, respectively.

In Arizona, state supreme court Justice Clint Bollick was comfortably retained by voters despite an anti-retention effort funded by the National Education Association.

And in Texas, one of only two states that permits voters to simply vote a straight party ticket, a Democratic wave unseated nineteen incumbent Republican judges on the state’s  intermediate appellate courts. This party sweep (which is not uncommon in Texas) will lead to two related consequences for the appellate courts. First, a number of highly experienced judges are now out of a job. Second, the learning curve for the new judges will take time. I do not envy anyone with cases pending in those courts over the next several months, as an entirely new judiciary gets it feet wet.

UPDATE 11/16/18: The post has been revised to reflect the Colorado supermajority requirement for Amendment W.

 

North Carolina legislature (again!) passes a law affecting judicial elections

When I started following North Carolina’s judicial election process a decade ago, it was a model for fair practices in directly electing the judiciary. Candidates ran in nonpartisan, publicly funded elections, and much of the chicanery that affects judicial elections in other states (like attack ads, targeted campaigns, and the like) was largely absent.

But sadly, the last couple of years has seen the North Carolina process turn into a clown show, as as aggressive state legislature tussles with the governor politicize the judiciary. Elections are once again partisan, and filling vacancies is ugly and political. And there is no sign of it ending anytime soon.

To wit: this week the state legislature passed a new law that appears to target a single candidate for the state supreme court. Chris Anglin is one of three candidates for an open seat on the court this fall. Anglin was registered as a Democrat until June, when he changed his party affiliation to Republican. The switch meant that two candidates would be identified as Republicans, and one as a Democrat, on the ballot.

Republican legislators, apparently concerned that the presence of two Republicans on the ballot would split the partisan vote and throw the election to the lone Democrat, hurriedly passed a bill that would remove any party designation for a candidate who switched parties less than 90 days before the election. As a result, Anglin would remain on the ballot, but without a party designation.

Republicans have couched the bill as a fair compromise to prevent the gaming of the election system. Democrats and Anglin are both crying foul. The question now is whether Governor Roy Cooper, a Democrat, will veto the bill.

An update on Florida’s judicial vacancy lawsuit

Last week I noted the lawsuit filed against Florida Governor Rick Scott by Jacksonville attorney David Trotti. Scott has moved to fill several seats on the state bench, which opened due to curiously timed judicial retirements. Trotti alleges that the retirements create a vacancy for such a short period that the seats should be filled by popular election.

The trial court ruled in favor of Trotti, which would have prevented the Governor from filling the seat. But the Scott Administration appealed, which automatically stayed the decision and once again enabled the Governor to appoint a new judge. Trotti convinced the trial court to vacate the stay, but Scott then convinced the appellate court to reinstate the stay.

Trotti has now appealed to the Florida Supreme Court, arguing that the stay (and a Scott appointment) will eliminate the rights of citizens to vote for the judicial candidate of their choice. In his petition, he noted that several judges have times their retirements to create just enough of vacancy to permit the Governor to claim the right to fill the seat through appointment. As I noted in my earlier post, I am no fan of judicial elections, but this certainly smells like people are gaming the system.

Florida’s fight over filling a judicial vacancy

A curiously timed judicial retirement in Florida has spurred a lawsuit and a debate over whether the vacancy should be filled by the governor or the voters.

Robert Foster, a trial judge on the state’s Fourth Judicial Circuit, was expected to retire on January 7, 2019–the last day of his term. (Foster will have reached the state’s mandatory retirement age.) In April, however, Foster informed Governor Rick Scott that he will take retirement one week earlier, on December 31.

That one week makes a big difference. Normally when a Florida judge leaves on the final day of the term, his seat is filled by popular election. But the governor interpreted the December 31 retirement to be an “early” retirement, which would allow him to fill the seat by gubernatorial appointment. In early May, the Fourth Judicial Circuit’s Judicial Nominating Commission announced the vacancy and invited applications.

Continue reading “Florida’s fight over filling a judicial vacancy”

Pennsylvania Senate slips judicial reform into redistricting bill

The Pennsylvania Senate yesterday passed a significant redistricting bill that would redraw the maps both for the state legislature and the state’s representatives in Congress. Before the vote was taken, however, Senator Ryan Aument introduced an amendment that would also change the way Pennsylvanians vote for their appellate judges. The amendment calls for judges of the Commonwealth Court and Superior Court to be elected regionally rather than by statewide elections. The amendment passed, and did not seem to effect the passage of the final bill.

Sen. Aument later explained that his amendment would provide all areas of the state with representation on the appellate courts. Proponents also surmise that regional elections would increase voter turnout.