Litigation

States React to Caperton

By Raheem Dawodu

Since the Caperton decision came down last week, the reaction from the states that have judicial elections, or may potentially have them, has been mixed.

Starting in West Virginia, where legislative options are being studied to prevent a situation like Caperton from happening again, the reaction was positive. West Virginia State Sen. Jeff Kessler, Chairman of the Senate Judiciary committee, said the U.S. Supreme Court decision would add some energy to the steps he has proposed, according to The Charleston Gazette.

Eric Velasco of The Birmingham News, in Alabama, states that the ruling will have little effect on Alabama’s nasty statewide judicial elections. Justice at Stake’s Charlie Hall was interviewed for this article, and his reasoning behind the lack of change was due to Alabama’s lack of transparency in campaign contributions. Hall said, “You can’t ask a judge to step aside if you don’t know where the money is coming from. Alabama needs to open the windows and let the sunlight in.”

This sentiment was shared by The Birmingham News editorial board, which wrote:

In Alabama, the impact of the Supreme Court ruling will be further diluted by the difficulty of identifying the source of campaign donations. The state allows contributions to be routed through a maze of political action committees. These PAC-to-PAC transfers are intended to hide the real donors and keep the public from learning about possible conflicts involving candidates and their campaign sugar daddies.

While the mood is skeptical in Alabama, the situation is more positive in Ohio. Known for having their own million-dollar judicial elections, Ohio Supreme Court Chief Justice Thomas Moyer (for full disclosure, Moyer is also a member of the Justice at Stake Board of Directors) feels that this decision is the breakthrough to create reform efforts for Ohio’s Supreme Court, according to  an Associated Press story.

In Ohio, parties can petition a judge to recuse themselves from a case, except at the Supreme Court level where the individual justice makes the decision on recusal from a case. Chief Justice Moyer wants to change that code and have the lower courts’ recusal standard apply to the Supreme Court, according to his spokesperson Chris Davey.

In Nevada, where there is an effort to replace the current system of judicial elections, with a merit selection system, the reactions were mixed. In a Reno Gazette-Journal editorial, the feeling is that this decision gives more support for the people who have backed a change in the election system in Nevada. However, in the Las Vegas Review Journal, their editorial board feels the Supreme Court’s decision still leaves a lot of unanswered questions for many states, and may not have gone far enough in its decision:

The question is how the court — in a political environment where the very direct election of state judges could be at stake — could issue such a ruling, but fail to provide more detailed and substantive guidance to the lower courts.

In Texas, since Chief Justice Wallace Jefferson’s call for a change to merit selection in March, there has been a serious discussion about the future of judicial selection in Texas. After the Caperton decision, Jefferson came out again in support of some reforms in Texas in the Houston Chronicle:

The Caperton decision challenges us to do more to remove the perception that judicial campaign contributions influence decisions in Texas courts. Caperton identified a core problem that exists in Texas even with expenditure limits.

The Houston Chronicle has also written an editorial, and while they are concerned by the lack of a clear standard in the majority opinion, they also note that its better to have something in place to start the debate on how judges are selected:

The fact is that campaign cash given to judges ? either by lawyers practicing in their courts or by parties involved in cases before those judges ? has long tainted the public?s image of jurists in Lone Star courtrooms. That?s why Tom Phillips, a highly respected former chief justice of the Texas Supreme Court, told the Chronicle he values the Supreme Court ruling as a jump-starter to a national debate on how judges are chosen.

In the Des Moines Register, the editorial board championed the merit selection system in Iowa and hope other states would follow their lead:

Either way, the public - not to mention parties in such cases who haven’t given money to the judge - would have reasonable doubts about the judge’s impartiality. The fact that it is difficult, if not impossible, to draw an ethical distinction between a bribe and a campaign contribution is a strong argument for why judges should not be elected. Period.

In Iowa, judges are not elected; rather, they are appointed through a merit-selection process in which applicants are screened by public commissions and appointed by the governor. Citizens still get a say through retention votes, when they have an opportunity to remove a judge if they think it’s necessary.

The editorial also expressed concerns over the lack of guidance in the majority decision, but fsaid that judges must do a better of recognizing potential biases. The Alaska Daily News shared the stance of the Des Moines Register by calling for an end to judicial elections.

We anticipate more reactions from other states in the coming weeks to the Caperton decision, and we will keep you updated on the happenings here at Gavel Grab.

Full post as published by The Gavel on June 15, 2009 (boomark / email).