Implications of the 2009–10 Elections

2011 Legislative Aftershocks Follow 2010 Earthquake

The confluence of negative, costly television ads and secretive, special-interest spending continued to define contested judicial elections in 2009–10—and also spread to previously sedate retention elections. But the impact of the most recent election cycle did not end at the ballot box.

After Iowa voters ousted three incumbent justices, and four other states saw organized attempts to unseat incumbents, emboldened lawmakers pressed the assault on impartial courts in the 2011 legislative season. Cumulatively, these attacks represented a historically significant concerted attack on judicial independence, and on various reforms intended to reduce the influence of money and politics on state courts. The serious challenges to fair and impartial courts included:

While many of the attacks failed to stick, some did, especially against widely popular public financing laws. The season raised the distinct possibility—or likelihood—that the attacks will continue into the 2012 legislative sessions. Meanwhile, experts predict that 2012 will see the most expensive and secretive election season in American history.

Public Financing

Special-interest contributions pose a tremendous threat to the public’s faith in fair and impartial courts. Overwhelming bipartisan majorities are extremely wary of the role that money plays in judicial elections and believe that campaign funding support buys favorable legal outcomes.15 Among the most effective reforms to confront these concerns is public financing. By providing public funds to qualifying judicial candidates, public financing reduces the need for judges to “dial for dollars” from the parties and lawyers who appear before them. Public financing can have positive effects on all elections, but it plays a particularly valuable role in judicial elections, where it not only helps eliminate any risk of quid pro quo corruption, but also protects elected judges against even the appearance of bias in the courtroom.

Substantial public attention has focused on a U.S. Supreme Court decision issued in June 2011—Arizona Free Enterprise Club v. Bennett—which struck down a narrow provision of Arizona’s public financing system. Despite some pronouncements that the case sounded the death knell for public financing as a whole, Arizona Free Enterprise Club expressly held that the foundation for public financing is constitutionally sound. And the case did not deal specifically with judicial elections at all, because the Arizona law at issue involved only legislative and executive races. As a result, there are strong arguments that judicial public financing would survive a litigation challenge like that in Arizona Free Enterprise Club.16

Regardless of the vulnerability of judicial public financing to litigation attacks, after the 2010 election cycle, far greater harm to public financing for judicial elections came at the hands of state legislatures.

In the four states that have adopted public financing for judicial elections over the last decade, legislators in two mounted furious attacks against the programs. Most notably, the Wisconsin legislature took aim at judicial public financing in the Badger State.

In 2009, after two particularly vitriolic and expensive Wisconsin Supreme Court contests,17 the Wisconsin legislature enacted the Impartial Justice Act to provide public financing to state supreme court candidates.

April 2011 saw the first supreme court election in which Wisconsin’s public financing program was active. Three of four supreme court candidates—including the final two contestants— took advantage of the new system and waged competitive campaigns without relying on contributions from parties with a direct interest in how the court decides cases.

Public financing allowed the candidates to eschew the traditional “dash for cash” fundraising approach, but this did not mean overall spending levels dropped. Instead, a heated political climate transformed the supreme court election into a proxy battle over a controversial law slashing state workers’ collective bargaining rights, and special interests spent a record breaking amount of cash on supreme court television advertisements.18

But even while the historic level of special-interest campaign spending in 2011 suggested a greater need for investing in ways to maintain the fairness and impartiality of the judiciary,19 legislators agitated against the Wisconsin program. In a serious blow to defenders of impartial courts, the legislature used a biennial budget to kill the public financing program after just one election.

In West Virginia, legislators deflated hopes for a pilot public financing program for state supreme court campaigns in 2012 when they failed to enact a lawyers’ fee important to fully fund the program. This occurred despite the damage to public confidence in West Virginia courts that occurred after a coal executive’s $3 million campaign in 2004 to elect a judge of his choice. That campaign led to the U.S. Supreme Court’s 2009 ruling Caperton v. Massey ruling, which underlined the threat that judicial campaign spending poses to impartial courts.

And in North Carolina, which pioneered public financing of judicial elections, critics launched a move to repeal public financing (though it was at least temporarily derailed). A legislator tried to introduce a measure ending public financing as an amendment on the House floor, but withdrew it after “bedlam” erupted.20 The legislature adjourned for the summer without enacting another plan to make all judicial elections partisan contests.

Republican opponents of public financing led the efforts in all three states, although polls, including a 2011 Justice at Stake survey, show broad, bipartisan support for public financing of judicial elections.21 Since its launch in the 2004 Supreme Court election, North Carolina’s public financing system has been a national model. About 75 percent of all candidates have participated in the voluntary system, including women, minorities and members of both parties.

Public financing is popular with North Carolina judges and voters because it frees up candidates to talk with voters instead of campaign donors, greatly reducing the perception of special-interest bias. Wanda Bryant, a judge on the North Carolina Court of Appeals, said, “It makes all the difference. I’ve run in two elections, one with campaign finance reform and one without. I’ll take ‘with’—any day, anytime, anywhere.”

Impeachment Threats: Iowa, New Hampshire and Elsewhere

While the legislative attacks on public financing were troublesome signs for advocates seeking to insulate judicial elections from money and partisanship, 2011 also saw explicit attempts by lawmakers to attack sitting judges.

The most immediate aftershocks from the 2010 judicial election season were seen in Iowa, where three incoming freshman lawmakers vowed to impeach four justices who were not on the ballot in the recently concluded retention election.

Defying solid voter opposition, the legislators pushed a resolution contending the court had overstepped its authority by permitting same-sex marriage. Although Iowa’s Constitution spells out that a justice can be impeached only “for any misdemeanor or malfeasance in office,” the resolution did not allege any ethical or criminal wrongdoing. A wide range of observers condemned the calls for impeachment, and when Iowa’s Republican governor and House speaker both spoke out against it, the impeachment threat fizzled.

Yet Iowa was not alone. According to the National Center for State Courts, 2011 likely marked the “single biggest year in history for efforts to impeach state judges.”22 In New Hampshire, a controversy over whether to impeach a family-law judicial officer over accusations that he altered official documents was turned by legislators into a blank check to investigate all state trial judges, who had not been identified in connection with any alleged wrongdoing. In Oklahoma, there was a bid to impeach a judge who accepted a plea agreement in a child molestation case that had been approved by the prosecution, the defense, and the victim’s parents.

Attacks on Merit/Retention

The challenges for advocates of merit selection began on Nov. 2, 2010, when voters in Nevada rejected a ballot measure to establish a system in which a non-partisan commission reviews judicial candidates and forward nominations to the governor; the governor appoints judges; and once on the bench, judges face periodic retention elections. Once legislatures gathered in January 2011, more systemic assaults raged against merit selection systems. Overall, there were efforts to weaken or eliminate merit selection of judges in at least seven states: Arizona, Florida, Iowa, Kansas, Missouri, Oklahoma, and Tennessee. These states represent nearly one-third of the 24 states that use merit selection in appointing high-court justices (of those, 16 hold periodic retention elections for justices).

In Arizona, for example, bills were introduced to end retention elections and to force appointed judges to periodically return to the legislature for confirmation, a process used in very few states. Under one proposal, judges would go through legislative hearings and face potential retaliation from political enemies. Currently, appointed judges in Arizona face periodic retention elections, where voters have the power to grant or refuse additional terms on the bench.

In Iowa, proposals included a bill to eliminate merit selection for appellate judges and a constitutional amendment to eliminate merit selection of supreme court justices and district court judges.

Attacks on Merit Selection, 2011
State Measure Category Comment
Arizona HCR 2020

Constitutional Amendment

End Merit Selection: Governor to fill judicial vacancies with Senate confirmation.

Change Retention: Reappointment and legislator reconfirmation required for new terms.

HCR 2026

Constitutional Amendment

Change Merit Selection: Restrict to counties with 500,000 or more people (now 250,000).

SB 1482

Bill

Evaluation: Requires online posting of all decisions by an appellate judges facing re-election.

SCR 1040

Constitutional Amendment

Change Merit Selection: Requires Senate confirmation of judicial appointees.

Change Merit Selection: Bar loses power to fill seats on nominating panels.

Change Retention: Ends retention elections, requiring legislative reconfirmation.

SCR 1042

Constitutional Amendment

Change Merit Selection:
Governor chooses lawyer members of nominating panels, instead of bar.

SCR 1043

Constitutional Amendment

Change Merit Selection: Panels would list all legally qualified applicants, and rank by merit.

SCR 1044

Constitutional Amendment

Change Merit Selection:
Governor could ignore nominating panel and appoint any candidate.

SCR 1045

Constitutional Amendment

Change Merit Selection: State bar would not nominate attorney members for judicial panels.

SCR 1046

Constitutional Amendment

Change Merit Selection: Governor’s judicial appointees subject to Senate confirmation.

Change Merit Selection: Would revise membership of judicial nominating commissions.

SCR 1048

Constitutional Amendment

Change Retention: Senate would vote on retaining a judge for additional terms.

Change Retention: Judges would stay on bench unless two-thirds of the Senate votes against.

SCR 1049

Constitutional Amendment

Change Merit Selection: Would revise judicial nomination commission membership.

Change Merit Selection: Expand from three to seven the nominees submitted to a governor.

Change Merit Selection: Would require Senate confirmation of governor’s nominees.

Florida HJR 1097

Constitutional Amendment

End Merit Selection:
Eliminate nominating panels for supreme court and district courts of appeals.

End Merit Selection: Governor to appoint, with Senate confirmation.

Iowa HB 343

Bill

Change Merit Selection:
State bar members of Judicial Nominating Commissions would have advisory role only.

HB 416

Bill

Change Merit Selection:
State bar members and presiding judge on Judicial Nominating Commissions advisory only.

HB 429

Bill

End Merit Selection for Court of Appeals:
Governor would appoint appellate judges, Senate would confirm.

HJR 13

Constitutional Amendment

Term Limits:
Limits Supreme Court and district court judges to two full terms totaling 12 years.

SJR 13

Constitutional Amendment

End Merit Selection: Would replace with judicial elections.

Kansas HB 2101

Bill

End Merit Selection:
For appellate court only; Senate would confirm nominations from governor

HCR 5015

Constitutional Amendment

End Merit Selection:
For Supreme Court; Senate would confirm nominations from governor.

Missouri HJR 18

Constitutional Amendment

Change Merit Selection:
Would increase judicial nominees submitted to a governor, from three to five.

Change Merit Selection: Governor could reject first slate of names and receive a second list.

SJR 17

Constitutional Amendment

Change Merit Selection: Would expand judicial nominating commissions.

Change Merit Selection: Would reduce ratio of attorney members to non-attorney members.

Oklahoma HJR 1008

Constitutional Amendment

End Merit Selection: Partisan elections for all appellate judges.

HJR 1009

Constitutional Amendment

Change Merit Selection: Governor could ignore commission nominees for appellate court.

Change Merit Selection: Senate confirmation required of governor’s appointments.

Tennessee HB 1702 Bill

Change Retention: Requires appellate judges to obtain 75% of retention election vote (now 50%).

HB 1017 Bill

Change Merit Selection: Governor can ignore names submitted by nominating panel.

Change Retention: Appointed judge would later have to run in a contested election.

HB 231 Bill

End Merit Selection: Supreme court justices would be chosen through nonpartisan elections.

HB 958 Bill

End Merit Selection: Requires popular election of trial, appellate, judges, and high-court judges.

In Florida, the House Speaker pushed a measure to oust judges unless they won a 60 percent supermajority in a retention election vote, increased from 50 percent under current law. In Tennessee, bills were introduced to replace retention elections with competitive elections, or to require appellate judges to receive 75 percent of the retention vote to stay on the bench.

Other anti-merit attacks included proposals to enact partisan election of judges; shut down citizen nominating commissions so that governors can appoint judges without any checks or balances; allow governors to ignore citizen commissions; and remove state bar members from nominating commissions. For the most part, these attacks faltered—but there were exceptions. Arizona legislators put a proposed constitutional amendment on the 2012 ballot to reduce the state bar’s role in judicial selection. Also in 2012, voters in Florida will decide whether to require Senate confirmation of state Supreme Court justices appointed by the governor. In the other direction, legislative campaigns remained active in Minnesota and Pennsylvania to allow voters to decide whether to shift to a merit selection system. In Pennsylvania, four current and former governors endorsed the plan at a June 2010 event.

Florida: Court-Splitting, or Court-Packing?

Are two Supreme Courts really better than one? Florida lawmakers had to ponder that question after the House Speaker aggressively pushed a plan to create separate panels for civil and criminal cases.

With the passage of this plan widely seen as inevitable, a new coalition of prominent lawyers and judges, Floridians for Fair and Impartial Courts, led a potent counterattack, denouncing the plan as costly and unnecessary. Other critics, noting that the state’s Republican governor would appoint three new justices, said it was a brazen power grab unparalleled since President Franklin Delano Roosevelt’s failed attempt to pack the U.S. Supreme Court. “This bad idea is a bad deal for Floridians in every way,” Stephen Zack, a Miami lawyer then serving as American Bar Association president, wrote in April 2011. “We’ll wind up paying more, waiting longer and facing a highly politicized court. Back in the 1930s, near the beginning of his presidency, Franklin D. Roosevelt tried to pack the U.S. Supreme Court, but the American people had the good sense to reject it.”23

Only two states in the country, Texas and Oklahoma, have such bifurcated systems, and in Texas, a Supreme Court justice in 2011 castigated the split system as archaic and ineffective. “Truth be told—and this particular truth has been told repeatedly—the State’s entire Rube Goldberg-designed judicial ‘system’ is beyond piecemeal repair; it should be scrapped and rebuilt top-to-bottom,”24 Justice Don Willett wrote in a case involving a jurisdictional dispute between the state’s top civil and criminal courts.

After the Florida House approved the court-splitting plan, the Senate would go no further than to authorize a $400,000 study of the state Supreme Court’s efficiency. Even that measure died when Governor Rick Scott vetoed the study as he worked to staunch a budgetary hemorrhage.

Funding Cuts Court Disaster

As courts endeavor to preserve their independence and impartiality in the face of increasingly expensive, negative and special-interest-dominated judicial elections and attacks on judicial power, their ability to safeguard fundamental principles of democratic governance is further constrained by resource limitations.

Across the country state judiciaries are making do with less, as legislatures impose recession-driven budget cuts across the board. More than 30 states experienced judicial budget reductions in fiscal year 2010, while 28 states saw reductions in fiscal year 2011. In many states, these cuts will continue, and potentially even accelerate, in fiscal year 2012.25 Strapped for cash, courts have reduced hours of operation, fired staff, frozen salaries and hiring, increased filing fees, diverted resources from civil trials—which in some cases suspended jury trials—and, in the worst cases, closed courts entirely.

California’s judiciary has absorbed a $350 million budget reduction, which Chief Justice Tani Cantil-Sakauye predicts will be “devastating and crippling” to the state’s ability to dispense justice.26 Similar sounds of warning are being heard across the country. After New York courts were forced to lay off more than 350 court employees to offset $170 million in cuts to the state judiciary’s budget, 65 dismissed part-time judges continued to work as volunteers to ensure that the courts’ indispensable work would not grind to a halt. Iowa’s court system today is operating with a smaller workforce than it had in 1987—even though, in the same period, the total number of cases in Iowa courts has doubled.

These cuts are coming at precisely the time when courts desperately need more, not fewer, resources. State courts confront elevated numbers of foreclosure filings, consumer debt proceedings and domestic violence cases—all of which rise in tough economic times—along with sustained numbers of other proceedings.

Unlike other government agencies, courts cannot simply cut some services; they have a constitutional duty to resolve criminal and civil cases. And because about 90% of court budgets go to personnel costs, cutting staff is the only way for courts to absorb reductions. Eliminating judicial employees means that some citizens looking to the courts for justice will walk away empty-handed. These draconian cuts also contain alarming long-term implications. Several studies have concluded that counties and states would suffer dramatic economic losses as a result of court closings.27

As the second decade of the twenty-first century begins, state judiciaries are caught in a vise, squeezed on one hand by interest groups waging an unrelenting war to impose partisan political agendas on the bench and on the other by devastating fiscal pressures.

Looking Ahead: More Assaults Expected

More assaults on impartial courts, taking a range of different forms, are on the horizon. They include special-interest election spending, retention election challenges, and further attacks on merit selection of judges.

While funding for courts continues to fall, the ability of special interests to spend freely on high-court elections, unfettered and in secrecy, will be greater than ever in 2012, given continued court rulings and legislative attacks on campaign finance laws.

There were strong indications of likely retention challenges in three states. In Iowa, organizers of the 2010 “Vote No” campaign have vowed to challenge another participant in the same-sex marriage decision in 2012, while in Indiana, there were early threats of a campaign to unseat the author of a bitterly controversial decision about resisting illegal police entry into a person’s home. In Florida, a group announced it was mounting a 2012 campaign to oust three state Supreme Court justices over a court decision that removed health care reform from the 2010 ballot in Florida.

And in Arizona and Florida, ballot measures would weaken key features of existing merit selection systems.

In early 2011, as Iowa’s legislature was wrestling with noisy, but ultimately unsuccessful, calls to impeach four justices, Chief Justice Mark Cady of the Iowa Supreme Court addressed legislators on the state of Iowa’s courts. Cady’s warning was grim, and applied to courts across America: “This branch of government is under attack.”