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Vol. 30, No. 3

Bars address judicial independence issues after ‘ugly’ elections

by Clifton Barnes

The year 2005 proved to be one of reflection and study after what some are calling the “ugliest” election year ever, in 2004. Questions of judicial independence hit some states especially hard as millions were spent either to unseat judges up for retention or to elect judges.

West Virginia endured what Tom Tinder, executive director of the West Virginia State Bar, calls perhaps the most “ferocious, ugly, terrible” state supreme court race in the country. Millions of dollars were spent by those now famous or infamous 527 groups in support of or in opposition to a candidate. One individual spent $1.7 million of his own money supporting the challenger, a Republican. Labor groups and trial lawyers, on the other hand, supported the sitting justice, a Democrat.

“National organizations, think tanks, are telling us they’ve never seen anything like it,” Tinder says. “There was some of the most negative, ugliest advertising that’s ever occurred in any kind of race.”

Perhaps the sharpest criticism came from a 527 group called And For the Sake of the Kids, which was formed to defeat the incumbent, whom they criticized for allowing a convicted child molester to remain on probation.

Business groups and physicians also supported the challenger, a political novice, who wound up defeating the sitting judge with 53 percent of the vote. There hadn’t been a Republican elected to the court since 1976.

Tinder says there are very strong opinions on both sides of the issue and about half the bar’s members feel the current system of judicial election—rather than selection—is satisfactory. Some of that is political and some philosophical, Tinder says.

“There’s been a long-standing feeling in our state that people should come before us and let us see them and let us vote for them, rather than have a select group of people or even the governor make the decision,” he explains.

Prior to the election, by a slim 13-12 margin, the West Virginia State Bar board approved the creation of a committee to look at the judicial selection/election issue. It was agreed that the committee’s work would not begin until after the election.

In West Virginia, all of the state’s judges—five supreme court justices, 65 circuit court judges, and 35 family court judges—are elected.

About 80 percent of the state’s judges are Democrats, including all five current justices, and there is a Democrat governor and Democrat-controlled Legislature. About two-thirds of the general population are Democrats, but “many are conservative Democrats who will support a Republican,” Tinder says.

The 18-person diverse committee of lawyers went into action in December 2004, meeting a total of 15 times. They studied both overhauling the system with a merit selection process and tweaking the current system.

The committee looked into keeping the election process but making it nonpartisan, as is the case with elections for all 55 county boards of education. But opponents said everybody would know or could find out the candidate’s party, and the various parties would still support one candidate over another.

By a one-vote margin, the committee decided to ask the board to support a state Supreme Court merit selection proposal. In October 2005, by a 15-1 vote, the board rejected the proposal and voted to keep the current election system.

There was agreement that the committee should take a look at a public education program, judicial campaign advertising, and campaign financing. The committee has a couple of years to do its work: In 2008, 102 of the state’s 105 judges, including two of the five justices, will be up for election.

Tinder says there seems to be no further push to institute merit selection prior to the next election. “Depending on what occurs during the 2008 campaigns,” he adds, “I could see after the election that people might say, ‘Gosh, we’ve got to do something.’”

In the meantime, the committee will be dealing with the areas on which all could agree. The public education program focuses on a judicial election guide that would give the background of judicial candidates as well as their philosophy.

The campaign advertising idea revolves around setting up a commission where advertising by judges would need to be approved. If unapproved ads were run, the commission would serve as a truth squad that would condemn inappropriate ads through news releases and other contact with the media and public.

The campaign financing arm of the West Virginia committee will be looking at a public financing program recently set up in North Carolina. “We hear it’s an excellent one,” Tinder says.

Public funding in North Carolina

North Carolina’s Public Campaign Financing Fund legislation created voluntary full public funding in general elections for appellate-level judicial candidates who agree to spending and fundraising limits.

Also, the elections became “nonpartisan” and contribution limits were placed on all judicial candidates. Monies raised through voluntary contributions, including a $3 checkoff block on tax forms, primarily go toward a state voters’ guide.

However, while the first election under the program, in 2004, seemingly went forward without any major hitches, there is a federal class action suit challenging the constitutionality of public campaign financing, led in part by a state Court of Appeals judge and a Superior Court judge, both Republicans.

And even those attorneys who have favored public campaign financing aren’t happy with new legislation in 2005 that calls for a mandatory $50 campaign financing surcharge on North Carolina lawyers. The surcharge was included in a complex state budget bill at the last minute—and that angered some lawyers as well.

North Carolina Bar Association President Mike Colombo, who says the move circumvented the normal legislative process, believes targeting lawyers is not the right way to go.

“The legislation taxes the legal profession to disproportionately fund a program that benefits everyone in the state,” he says. “While we encourage lawyers to voluntarily support the North Carolina Public Campaign Financing Fund, the NCBA does not agree with the practice of mandatorily targeting lawyers, or members of any profession, to fund a statewide initiative.”

State Sen. Dan Clodfelter, the leading proponent of the surcharge, says lawyers have a special responsibility as professionals to ensure the integrity and fairness of the judicial system.

“That a portion of the state bar dues be assessed and earmarked to support our system of public financing for appellate judicial elections seems to me to be a very modest way of discharging that special responsibility,” Clodfelter says. “North Carolina’s system of public financing has won wide national praise. I would think lawyers in North Carolina would want to claim some credit for underwriting that system.”

Trouble in Missouri

Another effort that has been a national model—the Missouri Nonpartisan Court Plan—is in jeopardy. Missouri, in 1940, became the first state to implement a nominative-appointive-elective plan. Under this plan, judges are nominated by a judicial commission and then selected by the governor. After their first 12 months in office, these appointed judges must go before the voters in a simple majority retention election. Similar retention elections are held at the end of each term of office, which is 12 years for appellate court judges, six years for circuit judges, and four years for associate circuit judges.

However, legislative efforts to weaken and even eliminate the plan have been made over the last two years. As early as the next legislative session, bills are expected to be introduced that would remove some power from the judiciary, reduce the retention period of appellate judges from 12 years to five years, and change the retention vote from a simple majority to a two-thirds vote.

In 2004, Missouri also saw the first organized effort to oust a judge from the state’s Supreme Court during a retention vote.

The Missouri Bar expressed concern about the effort, which included ads by the National Rifle Association and conservative advocate Phyllis Schlafly. Supreme Court Judge Rick Teitelman was accused of being too liberal and an activist judge.

Joe Whisler, immediate past president of the Missouri Bar, says the bar was unprepared for the last-minute “unjust attacks” against Teitelman. Efforts to unseat him failed as he was retained with 62 percent of the vote, which was a smaller percentage than most other judges.

After the election, Whisler, with board approval, organized a bipartisan Commission on Impartiality of Judiciary Issues to determine what is unfair criticism and when the bar should respond. The commission report was adopted by the board in July 2005 and is available at

The commission also recommended the creation of a separate Web site that would serve as a resource for lawyers and the public to learn more about the courts and the Nonpartisan Court Plan. That Web site is at

Whisler says one of the problems in the bar’s response to the attacks on the judge was “our lack of funding for any meaningful response to the media.” As a unified bar, the Missouri Bar is not able to do fundraising for this type of issue. A new nonprofit, the Missouri Law Institute, separate and unrelated to the Missouri Bar, has recently been formed to educate the public about the rule of law and the importance of the independence of the judiciary.

The Missouri Bar does have a TV advertising campaign to build and sustain support for the Nonpartisan Court Plan. Through a program of the Missouri Broadcasters Association, TV stations provide at least $4 worth of air time for each dollar the bar spends on advertising.

The bar also recently contracted with a pair of University of Missouri researchers to conduct “attitude research to help the bar determine what and how the public thinks about judges and the courts,” says Jack Wax, media relations director at the Missouri Bar.

“We are looking forward to determining the concepts and language that will help the bar communicate with the public about judges and the significance of the judiciary being free from political pressure in order to make impartial decisions,” Wax says.

Some focus group meetings have already been held. “Now, in the second phase of the research, we will find which concepts on the judiciary are viewed positively by various groups,” Wax notes.



In related news throughout the country: | Justice at Stake, a Washington, D.C.-based group that monitors spending in judicial races, says candidates for the Alabama Supreme Court have led the country in fundraising since 1993, with a total of more than $41 million. | Meanwhile, in Alabama, the Alabama State Bar is pushing for an appointive system for the state Supreme Court rather than the current partisan elections. The Legislature will consider the proposal in January; however, Republicans, who hold every seat on the Supreme Court and the Court of Civil Appeals, are poised to oppose it. Should the Legislature approve the plan, a constitutional amendment would need to be approved by Alabama voters in a statewide referendum. | The American Judicature Society reports that in 2004, Alabama, Illinois, and West Virginia each had the most costly judicial campaign cycle in their histories. And, even eliminating those states, a recent study showed that state Supreme Court candidate spending increased 167 percent from 2000 to 2002 and another 163 percent from 2002 to 2004. | While there have been no efforts to unseat Supreme Court justices in Kansas, bar leaders there are anticipating that what happened in neighboring Missouri (see main story) might occur in November, when one of the state’s seven justices is up for a retention vote. “If a bar association believes it should be heard in a judicial election/retention race, it should work through a coalition of citizen groups that is as broad-based as possible,” says Kansas Bar Association President Richard F. Hayse.