Tag: judicial elections

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.

 

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.

Sitting Alabama justices endorse candidate in upcoming partisan primary

Here is something I have never seen before. Seven sitting and former justices of the Alabama Supreme Court publicly endorsed Chief Justice Lyn Stuart in this week’s upcoming Republican primary. Stuart replaced former Chief Justice Roy Moore after he was suspended in 2016; she is now seeking a full term.

There are a number of unusual circumstances here. Stuart stepped into a difficult position after the Moore suspension, and obviously won the support of her colleagues. And her opponent, Associate Justice Tom Parker, is a close associate of Moore. It is likely good politics to place the more moderate Stuart in the partisan general election against a Democratic challenger. Parker seems to be a mini-Moore when it comes to inciting controversy.

But this is still a highly unusual move. Judges generally stay away from political endorsements or similar activity, for fear of comprising their legitimacy as nonpartisan arbiters of the law. Moreover, the the sitting justices here chose between two colleagues on the bench. That will make for an awkward summer around the courthouse. And what if the Democratic candidate wins the general election? (Unlikely in Alabama, but we know it can happen.)

Partisan elections places judges and judicial candidates in countless compromising positions. Here is another piece of evidence to that effect.

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.

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.

 

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.

West Virginia’s appellate court crisis

Odd things are happening on the West Virginia Supreme Court.

On February 16, Chief Justice Allen Loughry was demoted and replaced as chief by Justice Margaret Workman. The unusual move, which followed a vote by the court’s other members, was apparently precipitated by a spending scandal. The court system spent more than $360,000 on Loughry’s office space since he joined the court in 2013, including a $32,000 couch. Loughry and the state court administrator pointed fingers at each other. The administrator has since been fired. In light of the crisis, the state senate voted to assume immediate legislative oversight of the judicial branch’s budget.

Shortly before these events transpired, Loughry also undertook a massive administrative reorganization of the West Virginia court system, consolidating 27 court divisions into only six. Several court administrators lost senior positions, and at least two supreme court justices strongly opposed the move. Justice Robin Davis told a reporter:

“I voted against the Court’s most recent Administrative Office reorganization for two critical and distinct reasons…. First, there is an appalling lack of clarity in the newly structured Court Services Division because there is no longer a distinct chain of command for each of the different types of courts comprising the judiciary.

“Collapsing magistrate courts, drug courts, family courts, and circuit courts under the same umbrella of supervision will severely hamper and drastically delay response time in answering critical questions and responding to the needs of these courts.

The “purported efficiency” of streamlining the division will in fact, actually restrict citizens’ access to justice and judicial resources, she stated.

As this crisis unfolds, legislators are separately debating whether to add an intermediate court of appeals to the state judiciary. West Virginia is one of only nine states without an intermediate appellate court, meaning that all appeals must be heard by the state supreme court, or not at all. Republicans in the legislature are pushing the change, with support from the U.S. Chamber of Commerce.

There are many advantages to adding an intermediate appellate court. For one, it would streamline the supreme court’s workload. It also carries the potential to lower the stakes of electing supreme court justices: if the supreme court were not the only appellate body in West Virginia, major donors would have less incentive to finance supreme court candidates. (And the historical corruption on the West Virginia Supreme Court as a direct result of election financing is well documented.) Of course, the same problem might just be manifested in the intermediate appellate court as well, but there is at least a chance for reform. Against these advantages is the cost: the tag for a new appellate court would be many millions of dollars.

It will be fascinating to see how these developments play out.  Can/will structural reform to the West Virginia courts bring an air of ethical reform as well?