chevron-down Created with Sketch Beta.
Vol. 37, No. 3

Campaigning for justice: Bars support judiciary, tackle tough issues in Election 2012

by Robert J. Derocher

For nearly 75 years, the Missouri Plan has served as a template for the merit selection of judges, with more than 30 states using various elements of the plan for their judiciaries.  So when the future of that plan was cast in doubt by a ballot initiative last fall, many eyes in the legal profession turned to The Missouri Bar.

“There were a lot of people saying, ‘If Missouri changes, it’s a problem.  It’s the foundation for what everyone else does,’” says Missouri Bar President Patrick Starke.  “We had to figure out how to get our message out, that this was a bad proposal.”

Faced with the daunting task of defending the Missouri Plan in the face of big spending coming mostly from outside the state, The Missouri Bar responded with a multi-pronged plan that led to the defeat of the ballot proposal by a convincing 3-1 margin.

Missouri wasn’t the only judicial battleground on Election Day 2012, as Florida and Arizona also dealt with ballot initiatives aimed at altering the selection of judges, while a high-profile judicial retention race in Iowa brought in a presidential candidate, an out-of-state governor, and lots of campaign cash. The ballot proposals also brought out bar associations who took active roles in the campaigns—including some on opposing sides.

Although judicial selection was a prime focal point for several associations, others were involved in contentious issues such as same-sex marriage, election redistricting, and legislative authority over the judiciary. It was an active election season, several bar leaders say, as well as an indicator that some of the same thorny issues they saw in 2012 will keep them busy in the years ahead.

Ballot initiatives sought changes in judicial selection

Various efforts to alter or overturn merit-based judicial selection statues in several states are nothing new, according to Bert Brandenburg, executive director of the Justice at Stake Campaign, a fair courts advocacy coalition based in Washington, D.C. The website listed state judiciaries as the fourth most-popular target of ballot initiatives last year.

“There has been a growing effort to undermine impartiality in the courts, and 2012 is just the latest episode,” Brandenburg says. “The good news is that the public is seeing through this. The bad news is that there’s a new round of attacks. The independence of our courts is under attack.”

Brandenburg says his nonpartisan group and others closely watched the 2012 ballot initiatives in Missouri, Florida, and Arizona, fearful that special-interest groups—and their large bank accounts—might succeed in weakening the judicial merit selection process in those states.

It was a fear that Starke and the leaders of The Missouri Bar shared, as well, when they began mapping out a strategy to defeat the Missouri Judicial Appointment Amendment.  The amendment would have given the governor the majority of the appointments to the commission that chooses the nominees for the state’s two highest courts.

The bar got involved in opposition because “it really gave the governor too much power over the judiciary,” Starke says. “And there are an awful lot of lawyers who recognized that they don’t like any governor to control the judiciary.”

With virtually no dissent among its members, Missouri Bar leaders developed a comprehensive plan to oppose the amendment that included establishing a website, expanding the bar’s Speakers Bureau from 400 to 2,000 members statewide, and joining a coalition of businesses, service organizations, and other groups that united financial and public relations resources.

Also key to the effort, Starke says, was tapping a small group of well-known attorneys who are also leaders in their communities statewide to speak out against the amendment.  “I spoke at church, chamber of commerce meetings, and Rotary meetings, and I think what we all did was fairly effective,” Starke says.

For The Florida Bar, taking a position in opposition to Amendment 5, which sought to give the state legislature more sway in high court appointments, was fairly straightforward, according to bar President Gwynne Young.

“We can take positions that deal with the administration of justice, and we clearly viewed this as an administration of justice issue,” Young says, explaining the near-unanimous decision by the bar’s Board of Governors.

But because The Florida Bar is unified, there were restrictions on what positions the bar could stake out and how it could do so, Young notes.  So, while there was no campaign, the bar did post its reasoning for opposing the amendment on its website, while Young and other bar leaders similarly explained their position to the public via media outlets.

Amendment 5 was soundly defeated by a 63-37 margin.

In Arizona, the unified State Bar of Arizona found itself on the other side of a judicial selection ballot proposition—Proposition 115—from the state’s largest metro bar, the Maricopa County Bar Association, as well as several other local and specialty bars and 19 past presidents of the state bar.

“It was odd for us to be on the opposite side of the state bar,” says Allen Kimbrough, executive director of the MCBA.  “We get along fine, so I don’t think there will be any lasting issues.”

What divided the bars, Kimbrough says, were proposed changes in the merit selection process that would have given the governor a bigger stake in selecting judges. The state bar supported Proposition 115 as compromise that it believed was necessary to maintain merit selection in the face of legislative opposition. The MCBA and other opponents said the compromise went too far in giving the legislature and governor more power.

The MCBA took to its website and sent letters to the editor as part of its public campaign against the proposition and asked members to be supportive via e-mail and stories in bar publications, Kimbrough says.

Proposition 115 was defeated by a 72-28 margin.

Communication vehicles included a truck and a minivan

While issues or elections involving the judiciary or the law spark little campaign interest, one judicial retention election in Iowa brought out a presidential candidate (Rick Santorum), an out-of-state governor (Louisiana’s Bobby Jindal) and a shiny red tour bus crisscrossing the state for a week—trailed closely by a borrowed advertising truck and a minivan driven by staffers from the Iowa State Bar Association.

What attracted all that attention?  The retention election of state Supreme Court Justice David Wiggins, one of the surviving judges who affirmed same-sex marriage in Iowa in 2009. Santorum and Jindal were on the bus tour, urging Iowans to turn Wiggins out of office, much the same way anti-high court activists worked two years ago to successfully oust three other judges who joined Wiggins in the marriage ruling.

“We learned some lessons from 2010,” says ISBA President Cindy Moser. “We knew we needed to play a bigger role in education and advocacy.”

That role included a wide-ranging effort that included press conferences, multiple speaking engagements, joining forces with other groups, a special website—as well as the ISBA traveling show.  The purpose of the truck and minivan, Moser says, was to feature prominent bar leaders immediately speaking out after Santorum, Jindal, and others about the dangers of mixing politics with the judiciary. 

“We decided we wanted to meet them on their own grounds, at their own game,” Moser says.

The strategy paid off for the ISBA, as Wiggins was retained by a 55-45 margin. Two other state Supreme Court justices and more than 70 other lower court judges were also retained by voters—a clean sweep.

The uneasy mix of politics and the judiciary was also part of the strategy used by the Ohio State Bar Association in its efforts to convince voters to reject a constitutional amendment that would have brought the state’s high court into the legislative redistricting process. Under the proposed amendment, judges would have been called in to settle any deadlocks arising from a citizen’s panel—appointed by legislators and the governor—that was proposed to oversee legislative redistricting.

Believing that redistricting “was the most political of political processes” and was no place for the judiciary, the OSBA launched a multimedia campaign to defeat the proposed amendment, says Bill Weisenberg, the bar’s assistant executive director for public affairs. The effort included a website, a YouTube video, and a series of e-mails sent to the bar’s 25,000 members, explaining the bar’s position and asking them to spread the word to defeat the proposed amendment.

And that’s just what Ohio voters did, by a 63-37 margin.

On controversial issues, bars faced big decisions

Some bars were also unafraid to take on controversial issues. The Maryland State Bar Association’s Board of Governors voted early on to publicly support a state law and subsequent voter referendum that legalized same-sex marriages. It was a low-key effort, featuring legislative testimony from bar President Henry Dugan and public support for civic groups backing the new law.

While Dugan heard from just a handful of members who were disappointed by the bar’s stand, “I think we picked up many more members than we lost,” he says. The referendum was approved, 52-48 percent.

The bar’s involvement also signaled a change for the association, which has often stayed on the sidelines during previous debates on high-profile, controversial issues in the state. “The bar should be involved in controversial issues, especially when it comes to human rights,” Dugan says. “And I view same-sex marriage as a human right.”

For the Minnesota State Bar Association, opposing an amendment that would have defined legal marriage as only being between a man and a woman did anger a small number of members enough that it led them to quit the association. But a more volatile issue emerged over a second state amendment that would have required voter identification. After some heated debate in the bar’s 121-member Assembly, bar leadership opted to take no position on the amendment.

“The issue was so divisive in the State of Minnesota, many people felt like we were going to lose credibility with the other side, no matter what side we took,” says bar President Bob Enger. “I was personally opposed to it. But I understand the logic of not taking a position.”

Both amendments were defeated in November; the marriage amendment failed by a 52-48 margin, and the voter ID measure by 54-46.

Many bar leaders were cheered by many of the November results, but several were also wary that their associations may be tested again in the future—particularly on issues revolving around judicial independence. That’s likely to mean more work ahead for bar legislative committees, they say.

“We’re going to continue to try and bring more people on board—particularly the business community,” says the Missouri Bar’s Starke. “Our challenge is to make sure that people understand that there are three separate branches of government.”