For some state judges, lobbying is part of the job description

One of the most important themes of judicial interdependence is resource dependence. By conscious design, courts cannot produce or directly obtain many of the resources that they need to operate. These resources include immediate, survival-level needs like adequate funding and staffing, but they also include less tangible resources like public trust and legitimacy, and long-term needs like enabling legislation.

For better of for worse, most of the courts’ needed resources are in the hands of the legislature. Congress and state legislatures allocate funds to the judicial branch, determine the number of judges that the courts will have and the conditions upon which those judges will be selected, enact statutes granting courts jurisdiction to hear cases and authority to manage their internal affairs, and set the public tone in the way they treat the courts and individual judges.

So it should not be surprising to see judges directly asking legislatures for resources from time to time. The U.S. Courts submit a formal budget request to Congress every year, and on several occasions federal judges have testified before Congress on bills that affect the judiciary’s operations. And at the state court level, it is all the more prevalent. Many state chief justices provide a formal State of the Judiciary speech to their respective legislatures at the start of a new year, in which they lay out the work of the state courts over the previous year and lobby for resources to sustain or improve operations. That lobbying process may coincide with the speech, but often starts beforehand and continues long into the legislative session.

Consider New Mexico. Chief Justice Judith Nakamura will present her State of the Judiciary speech on Thursday, but she has already set the groundwork for the courts’ legislative “ask.” Several days ago, she sat down with the editors of the Albuquerque Journal. That access enabled the Journal to report, with considerable depth, that the state judiciary would pursue two constitutional amendments and several statutory changes in the upcoming legislative session. The constitutional changes would affect the timing of participation in judicial elections and the court’s ability to effectuate administrative transfers among courts. The statutory changes would set aside certain requirements with respect to appeals and jury service in order to make those processes more efficient. And of course, the courts are asking for additional funding for specific projects.

Chief Justices bear significant administrative responsibilities: they are the CEOs of their court systems as much as they are judges. In that capacity, a little legislative lobbying–and lobbying in the media–is very much fair game.

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.

 

Another ill-advised effort to “fire” judges, this time in New Mexico

In the fall of 2006, a partisan group in Colorado tried to convince that state’s voters to adopt a ballot initiative that would retroactively remove five of the state’s seven supreme court justices. The justices’ offense? They were all appointed by the same Democratic Governor over a span of a decade. Proponents of the measure argued that the targeted justices had decided cases in a blindly partisan manner, notwithstanding all evidence to the contrary. An exhaustive and concerted effort by the state bar and other groups eventually stopped the initiative from passing, but the bad taste of populist politics remained.  In 2010, a group calling itself “Clear the Bench Colorado” again tried to remove four state supreme court justices by voting for non-retention. Again, the effort was unsuccessful.

Instrumental to countering these “clear the bench” messages has been the presence of a longstanding and well-respected judicial performance evaluation (JPE) program in the state. For nearly twenty years leading up the 2006 ballot initiative, state judges had been periodically evaluated by local commissions, and the evaluation results shared with the public leading up to each judge’s retention election. As I have documented in this article, the Colorado JPE process should be credited not only with convincing voters that their judges were highly competent and professional, but also that occasional controversial decisions needed to be placed in broader context in determining whether a judge should remain on the bench.

Unfortunately, the same trend is now infecting Colorado’s southern neighbor. A group calling itself “Clear the Bench New Mexico” is calling on voters to “fire” judges who have issued sporadic controversial decisions by voting to not retain them in office.

But maybe New Mexico’s JPE well-established can serve a similar heroic role. As set out here, the process takes a comprehensive look at the judge’s work twice during his or her term in office, focusing (as with other JPE programs) not on case outcomes, but on each judge’s capacity and commitment to providing a fair process. Individual evaluations are posted for each judge facing retention, and voters can read these evaluations and make up their own minds.

A common complaint about JPE is that retention voters rarely read the full evaluations. Many choose not to vote at all with respect to judges, and others vote haphazardly — focusing, for example, on the judge’s last name or perceived gender, or whether the judge is recommended by a lawyer friend. So there is much work to be done for the JPE process to meet its full potential. But surely it is a better way to inform the public than the half-baked wranglings of political partisans.

A curious string of recusals in a New Mexico corruption case

One by one, eight state trial judges have recused themselves from presiding over a criminal case against a former New Mexico state senator.  Phil Griego was indicted in June on 22 counts, including perjury and embezzlement.  Among other things, Griego is alleged to have spent funds from his re-election account after resigning from the state senate in March 2015.

None of the eight judges identified a specific reason for recusing themselves from the case, with each indicating only “good cause” for the recusal.   The Santa Fe New Mexican reports:

Former state Supreme Court Justice Patricio Serna said one factor in the decision by so many Santa Fe judges to recuse themselves from Griego’s case might have been their role lobbying legislators for court funding.

If the need to obtain court funds from the legislature compromises judges to this extent,  interdependence can become a danger to the administration of justice.