Tag: judicial retention

South Dakota mulls ending contested judicial elections

The legislative proposal is still in its early stages, and would need voter approval in 2024. It would end contested elections of judges and create a mechanism for formally allowing all judges to be appointed by the Governor. All judges would then face periodic retention elections, during which they would run unopposed and voters would choose to retain them for another term.

The proposal is far less radical as it seems. As this article points out, almost all state judges are already appointed to fill vacancies that occur between election cycles. Indeed, almost no judges actually ascend to the bench in the first instance from a direct election. Removing the requirement of contested elections is therefore as much a housekeeping measure as anything else.

It’s also an excellent idea. Contested judicial elections are in fact almost never contested, and when they are they are subject to deep politicization. Retention elections would continue to provide accountability to the voters, especially if it is paired with a robust judicial performance evaluation program.

Let’s see how this plays out. It is a hard thing for voters to give up their franchise, even in elections where there is rarely a decision to be made. But it is a development that bears watching.

Experienced judge tapped to fill seat on Illinois Supreme Court

Earlier this month, Illinois Supreme Court Justice Thomas Kilbride became the first member of that court to lose a retention election. More than 57% of voters elected to retain Kilbride on the court, but because of the state’s unique rules requiring more than 60% of voters to support retention, Kilbride lost his seat.

Now his replacement has been named. The state supreme court has appointed Judge Robert Carter, a veteran of the state bench for more than 40 years, to complete Kilbride’s term through the 2022 election.

Carter seems to be an excellent choice. He is highly experienced, and has stated that he has no interest in running for the seat when it comes up again in two years. That will allow for a fresh start among candidates who want a full term. In this sense, Carter is playing the role akin to a U.S. Senator temporarily appointed by the state’s governor to fill a vacancy.

Election 2020: a quick state court roundup

Even with all eyes trained on the Presidential election, voters in more than thirty states also cast ballots this week for (or against) state judges. Here are some of the preliminary stories coming out of Election Day:

In both Dallas County and Harris County, Texas, Democrats swept the contested judicial races, making it yet another election cycle in which a single party has taken control of the state judiciary in Texas’s two largest metro areas. In North Carolina, a party sweep of another type took place, with Republican judicial candidates winning each of their judicial races. Neither case should be seen as good news. Party sweeps strip the courts of critical judicial experience, replacing it only with a partisan fetish that a judge with an (R) or a (D) next to his name will rule in a certain way. If the judges are fair, the partisans are more often than not disappointed by some case outcomes. And if the judges give the partisans what they want every time, the integrity of the judiciary is compromised. (Just a thought: perhaps it is finally time to eliminate partisan judicial elections altogether.)

In Illinois, for the first time, a sitting supreme court justice lost his retention bid. A little less than 57% of voters chose to retain Justice Thomas Kilbride, but under the state’s unique rules, at least 60% of voters needed to favor retention for Kilbride to keep his seat. Thus we have the unusual circumstance in which a judge whom most voters wanted to retain nevertheless will have to leave the bench. (The unusual nature of Illinois’s judicial retention system has an equally unusual history, which I might try to unpack in a future blog post.)

In Tampa, Florida, a state trial judge who lost his primary race in August pushed the state supreme court not to certify this week’s judicial election results. The judge is arguing that the current state law allows judicial races to be settled in the primaries, whereas the state constitution requires that they be decided during the November general election.

And in Arizona (where ballots are still being counted as of this writing), the Maricopa County Democratic Party campaigned against the retention of two state trial judges, including the only Native American judge on the Maricopa County Superior Court. Both targeted judges were deemed by the state’s independent Commission on Judicial Performance Review to have met performance standards. Unlike Illinois, a simple majority in favor of retention is enough to keep the judges on the bench.

Judicial evaluations and the retention voter

I was interviewed extensively for this piece in Denverite about Colorado’s judicial performance evaluation (JPE) program. The primary takeaway is that voters should feel very comfortable with a program that works so hard to evaluate judges on the process (as opposed to the outcomes) of judging.

A number of states have excellent JPE programs, but not enough. Done properly, JPE benefits voters, the general public, and most of all the judges themselves. It should be part and parcel of every state and federal judicial program.

More on California’s relaxed judicial ethics rules

I have a new post up at the IAALS blog that looks more deeply at the changes to California’s Code of Judicial Ethics, which permit judges to comment on pending cases in the context of a recall or retention election. Here’s a taste:

The amended rule allows judges who are under electoral attack to explain and contextualize their decisions to the voters directly. This is especially important for decisions rendered orally from the bench, which—like the rulings that ultimately felled Judges Corey and Persky—were not supplemented with a written account of the judge’s thought process. If a controversial decision was mandated or constrained by existing law, or by formal rules of evidence or procedure, the judge is now free to explain those circumstances to the public. A nuanced legal explanation will still struggle to compete for voter attention in comparison to a simple hashtag, but at least a judge will have some opportunity to advance his or her position directly.

At the same time, by inviting judicial comment on pending cases, the new rule places the overall integrity of the judiciary at greater risk. Traditional rules of judicial conduct prohibit judges from even approaching behavior that might be considered inappropriate for a neutral jurist. Judges, for example, are directed to avoid the appearance of impropriety, to disqualify themselves if there is anything above a de minimis personal interest in the outcome of a case, and to conduct extra-judicial activities so as to “minimize the risk of conflict with obligations of judicial office.” And, of course, judges are traditionally barred from discussing a pending case, lest they compromise the fairness of the proceeding. By consistently erring on the side of impartiality, judicial conduct rules avoid close calls and send a message that judicial integrity is of the utmost importance. The new rule blurs the line between appropriate and inappropriate judicial speech, and may have long-term erosive effects on public faith in the judiciary.

Please read the whole thing!

California approves plan to allow judges to comment on their own (and others’) decisions

The California Supreme Court has approved a change to its Code of Judicial Ethics, which would allow state judges to publicly comment on pending proceedings, including their own decisions and decisions of their colleagues. The most important change is to Canon 3B(9) and associated comments. The amended Canon now reads, in pertinent part:

In connection with a judicial election or recall campaign, this canon does not prohibit any judge from making a public comment about a pending proceeding, provided (a) the comment would not reasonably be expected to affect the outcome or impair the fairness of the proceeding, and (b) the comment is about the procedural, factual, or legal basis of a decision about which a judge has been criticized during the election or recall campaign.

These changes have been in the works for some time, a reaction to the ugly 2018 campaign to recall state judge Aaron Persky. The sentiment is understandable, given that judges who produce unpopular decisions are sitting ducks in an election when they cannot even respond to unfair or oversimplified attacks by their antagonists. Permitting judges to at least clarify the context of their decisions, or to comment on the overall qualifications of a fellow judge whose career is being reduced to a single decision, may prevent voters from removing a judge rashly.

But there is still reason to be worried about whether this change will work for the better. Now that judges are permitted to comment on pending proceedings, they have less of an excuse to not comment when pressed by the media or an election opponent. Some judges might feel pressure to comment even when they do not want to do so. Others might choose not to comment and find themselves under pressure to justify that decision. Put differently, in some ways the original canon was cleaner because judges had no choice but to remain silent. Now they have more freedom, and that can be a blessing and a curse.

The new rules go into effect July 1. It will be a development worth watching.

 

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.

Judicial elections in the #MeToo era

I am pleased to announce that my article, Judicial Recall and Retention in the #MeToo Era, has been published in the latest issue of Court Review. It is part of a symposium issue on the recall election of Judge Aaron Persky in California last June.

The article identifies strong similarities between the efforts to recall Judge Persky and later efforts to prevent the retention of Judge Michael Corey in Alaska and Justice Carol Corrigan in California. As I explain in the article, the parallels are troubling because recall elections and retention elections historically developed at different times and for different reasons. The utilization of recall tactics in retention elections is therefore a worrisome development.

Court Review is the official journal of the American Judges Association. I recommend the entire issue for anyone interested in the Persky saga and lessons that may be drawn from it.

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.

 

Colorado considers changes to judicial retention ballot

This November, Coloradans will vote on Amendment W, a proposal to streamline the state’s ballot for judicial retention elections.

Currently, for each state supreme court justice facing retention, the ballot contains the question, “Shall Justice ___ of the Supreme Court be retained?” For judges on other courts, the ballot takes a similar form: “Shall Judge ____ of the ___ Court be retained?” If passed, Amendment W would allow county clerks to ask a single retention question applicable to all judges on the ballot: “Shall the following Justices (Judges) of the Supreme (or other) Court be retained in office?” The judges seeking retention would then be listed by name, with an option for Yes or No next to each name.

This has been billed as a cleanup measure which would shorten ballots, saving counties money and increasing voter participation in down-ballot judicial retention elections. It garnered bipartisan support in the state legislature, and has not been subject to any organized opposition. I suspect it will pass easily.

But I also wonder if there will be unintended consequences flowing from the shorter ballot. Partisan efforts to remove judges for specific decisions are aimed mostly at appellate judges, and count on voters to be ignorant about the court system. The shorter ballot exacerbates voter ignorance, by eliminating one more piece of information to help voters distinguish among the judges on the ballot. Put differently, without court designations on the ballot, some voters might not remember which judge they think they should remove, and so might just vote to remove them all.

This scenario is not likely, but neither is it unimaginable. A shorter ballot may be good for election administration, but it also presents more work for the judiciary, the bar, and the judicial performance evaluation committees in their efforts to educate the public about the real work of the courts.