JUDICIAL INDEPENDENCE

WHAT IS THE BEST METHOD TO SELECT JUDGES?

By Tom Januzzi – Oberlin Municipal Court – September 30, 2008

IMPARTIAL

 Judicial Rulings should be based on the facts, legal arguments and the law – not upon improper influence by interested parties

Power to declare laws in violation of the Constitution as a check on government abuse of power  This power is a fundamental check on abuse of power by the other branches – even if they were elected by the majority. The power to make decisions free from political considerations  To declare laws in violation of the Constitution

District of Columbia v Heller June 26, 2008 The Supreme Court, Justice Scalia, held that: (1) the Second Amendment conferred an individual right to keep and bear arms; (2) statutes banning handgun possession in the home violated Second Amendment; and (3)statute containing prohibition against rendering any lawful firearm in the home operable for purpose of immediate self-defense violated Second Amendment.

TENURE OF JUDGES

Whether elected or appointed the position must be secure – to allow decisions to be made without concern for pressure or attack by those in a position of power or authority

Three main levels in the Court System 

Trial Courts

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Intermediate Appellate Courts

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Supreme Courts

SUPREME COURT OF OHIO

 Chief Justice Thomas J. Moyer Justice Paul E. Pfeifer Justice Evelyn Lundberg Stratton Justice Maureen O'Connor Justice Terrence O'Donnell Justice Judith Ann Lanzinger Justice Robert R. Cupp

UNITED STATES SUPREME COURT   Chief Justice John Roberts (G.W. Bush) Associate Justices: John Paul Stevens (Ford) Antonin Scalia (Reagan) Anthony Kennedy (Reagan) David Souter (G.H.W. Bush) Clarence Thomas(G.H.W. Bush) Ruth Bader Ginsburg (Clinton) Stephen Breyer (Clinton) Samuel Alito (G.W. Bush)  Retired Associate Justice: Sandra Day O’Connor (Reagan)

OATH OF OFFICE

  What is an Oath?

Black’s Law Dictionary: “A solemn declaration, accompanied by a swearing to God or a revered person or thing, that one’s statement is true or that one will be bound by promise”

Oath

 “When a man [person] takes an oath he [she] is holding his [her] own self in his [her] hands. Like water, he [she] cups his [her] hands. If he [she] opens his [her] fingers then – he [she] needn’t hope to find himself [herself] again. Some men aren’t capable of this, but I’d be loath to think your father one of them.” –excerpt from the play “A Man for All Seasons” Sir Thomas More discussing the meaning of an oath with his daughter.

OATH OF OFFICE

Ohio Judges:    support the Constitution of the United States the Constitution of the State of Ohio administer justice without respect to persons   Faithfully and impartially discharge and perform all duties as Judge to the best of my ability and understanding So help me God

OATH OF OFFICE

Federal Judges:  Administer Justice without respect to persons  Do equal right to the poor and to the rich   Faithfully and impartially discharge and perform all duties incumbent upon me as Judge – according to the best of my abilities and understanding, agreeably to the constitution, and laws of the United States So help me God

We all want to be treated fairly

“The most important factor in determining the public’s evaluations of state courts and judges is the perceived fairness of court processes. Americans value fairness in the process more than the fairness of the outcome” Source: National Center for State Courts

We want to be treated fairly without respect to: Who we are

Who we know or don’t know

Where we live

What we look like What we talk like What our religion is What our political party is When we arrived in the USA or in the community in which we live

CHARLES LANGSTON

“I WAS TRIED BY A JURY WHO WERE PREJUDICED …”

Ohio Supreme Court Justice Thomas Moyer “The cases of the less fortunate are no less real than those of a high paying client”

Justice Black – United States Supreme Court [1937-1971]

“There can be no equal justice where the kind of trial a man gets depends on the amount of money he has." United States Supreme Court Justice Hugo Black Griffin v. Illinois 351 U.S. 12, 19 (1956)

Justice Antonin Scalia

“None whatever. The absolute worst violation of the judge’s oath is to decide a case based on a partisan political or philosophical basis, rather than what the law requires” – When asked recently is there a role for politics in our Judicial System

JUDICIARY IS A CO-EQUAL AND SEPARATE BRANCH OF THE GOVERNMENT Three branches created – each with limited powers – And intended to check and limit the power of the other two branches – This was the formula for “A more perfect Union”

Why was it so important to the founders to have an Independent Judiciary?

“The history of the present King…is a history of repeated injuries and usurpations, all having, in direct object, the establishment of an absolute Tyranny over these States…”

-continued-

…Let Facts be submitted to a candid world… He [the King] has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.”

    THE ROLE OF THE JUDICIAL BRANCH DEFINED

Marbury v.

Madison (1803)

"It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule." This decision declared the power of the Supreme Court to invalidate an act of Congress if it that act was in conflict with the Constitution. — Chief Justice John Marshall

How do we accomplish the objective of an Independent Judiciary?

What is the best method of judicial selection?

There are 5 basic categories of how judges are selected – with many variations

1. CONTESTED ELECTION BY THE PEOPLE The election can be either:  Partisan  Non Partisan

2. Commission-based appointment (also known as “merit selection,” “the Missouri Plan,” or the “Non Partisan Court Plan” )   Judicial applicants are evaluated by a nominating commission, which then sends names to the Governor Governor appoints one of the nominees submitted by the commission

3. Gubernatorial appointment

Judge is appointed by the Governor without in put from any nominating commission

4. Legislative Appointment/Election The process by which judges are nominated and appointed or elected by legislative vote only

5. Retention of Judges

Any process by which judges are appointed and then run for retention in an election by the people of the jurisdiction of the court

WHAT METHOD IS BEST?

BENJAMIN FRANKLIN’S OPINION   Direct election of Federal Judges Practice in Scotland for Judge’s to be nominated by lawyers – they chose the ablest of the profession so that the other lawyers could get rid of him and share his practice among themselves

1. Contested Election - Partisan

  Pros In theory – accountability to the entire community Elected Judges are not likely to be beholden to the governor or legislature than Judges appointed by political leadership     Cons Campaign Contributions – economic and in kind [ lawyers and non-lawyers – special interest groups] Appearance of being beholden to a political party – not general public Qualifications of office Low level of public knowledge and interest about candidates [How many voters know the Judge they vote for?]

2. Contested Election – Non Partisan   Pros Accountability to entire community – not to one person or select group Little appearance that the Judge favors any person due to party affiliation    Cons Campaign Contributions Qualifications for office Low level of public knowledge

3. Commission Based Appointment    Pros Avoids the appearance of party affiliation Greater control over the qualifications of the candidate Avoids conflicts for accepting contributions – economic and non-economic    Cons May limit the pool of candidates to the aristocracy – lesser known but honest and capable candidates may not have the opportunity to gain access to the decider group Control of the Judiciary placed in the hands of a few Micro-politics [professional, personal and party politics] could be involved

4 a. Gubernatorial/Presidential Appointment   Pros Avoids conflicts for accepting contributions – economic and non economic Judge is not tempted to make decisions to satisfy donors/supporters     Cons Appearance of favored party affiliation Power in Executive branch – not independent branch of government – “He has made Judges dependent on his Will alone…” Reluctant to overturn legislation and Executive orders

    4 b. Legislative Appointment/Election Pros Avoids conflicts for accepting contributions Government officials may have more information about a candidates qualifications Government officials may understand the judicial branch better than the average citizen?

Less likely to submit to public opinion or special interests? →       Cons Micro-politics to obtain votes from legislators – less public scrutiny Power in the legislative branch compromising the separation of powers contemplated by the “More perfect Union” Appointers may focus on political considerations rather than solely on qualifications Judge’s may be perceived as political cronies Reluctance to overturn legislation

5. Retention of Judges

  Pros Accountable to entire community Depending on rules for retention elections – may limit temptation of a candidate to be beholden to a special interest group or persons    Cons Limited pool of candidates – even if the person is voted off the bench if the original appointment process was flawed is this helpful?

If the candidate is permitted to accept contributions is this any different/better/worse than contested election?

Special interests, attorneys etc. might be more inclined to contribute to campaign of one

FEDERAL JUDGE SYSTEM OF APPOINTMENT

Article II of the Constitution

President nominates Judges – by and with the Advice and Consent of the Senate

The power to nominate – what does it mean?

 Most agree that presidents nominate persons who share their ideological views  The appointment is for life – during a term of good behavior  Since the president only makes the nominations – who is elected president is significant

 The nominated and confirmed Judge is not and should not be a puppet of the President  Public perception may be otherwise

Reality – All Justices have not been puppets of their nominating president President Eisenhower nominated Chief Justice Warren expecting him to be a conservative Judge

Landmark Decisions

  Brown v. Board of Education, he authored the landmark decision establishing that "separate educational facilities are inherently unequal." This ruling overturned the previous holding of Plessy v. Ferguson. In Miranda v. Arizona, the Court ruled that persons in custody must be informed of their rights before being interrogated by law enforcement officers.

Chief Justice Earl Warren [Term - 1953-1969]   Decisions of the Chief Justice some argue were the most liberal in the Court’s history President Eisenhower remarked: “the biggest damn fool mistake I ever made”

Recent Movements to Reform Judicial Selection at the State level

Why is there a desire to reform judicial selection?

  Perception [reality] that financial contributions are influencing the election of our Judges Perception [reality] that financial contributions are influencing decisions made by Judges

  "I never felt so much like a hooker down by the bus station in any race I've ever been in as I did in a judicial race," said Justice Paul E. Pfeifer, a member of the Ohio Supreme Court. "Everyone interested in contributing has very specific interests." "They mean to be buying a vote," Justice Pfeifer added. "Whether they succeed or not, it's hard to say.“ 2004 election cycle – Justice Pfeifer

“The Louisiana Supreme Court in Question: An Empirical and Statistical Study of the Effects of Campaign Money on the Judicial Function”

-Vernon Valentine Palmer and John Levendis – authors of an article in the Tulane Law Review – 2008 at page 1291

Introduction

   Justices have been significantly influenced by campaign contributions they have received from litigants and lawyers appearing before these justices Statistically speaking, campaign donors enjoy a favored status among litigants appearing before the justices The very qualities needed in the highest court – independence, impartiality, and adherence to the rule of law – may have been eroded by the corrosive effect of judicial campaign money

How do Ohioans view campaigns contributions and their effect on Judicial decisions?

Report by ABA Standing Committee on Judicial Independence 90% of those surveyed believed that campaign contributions influenced judicial decisions

Findings by Palmer and Levendis      In 186 cases in the report at least one donor to a justice’s campaign was before the court, but there was no removal by the justice concerned With the 186 cases there was more than 1.3 Million dollars in campaign contributions In cases involving a single donor – members of the court voted in favor of the donor 65% of the time. Three of the justices voted in favor of their donor 89%, 81%, and 73% respectively When timing of contributions is considered a donation within a month of the decision increased the odds in favor of a donor by 21% and in one justice’s case by 99% By type of case – cases dealing with tort and constitutional law produced the strongest correlation between donations and a favorable result

Does this just happen in Louisiana?   A 2006 study by the New York Times found that Justices of the Ohio Supreme Court voted in favor of their contributors about 70% of the time One particular Justice voted 91% in favor of the justice’s contributors

“Anybody who places their trust and confidence in a constitutional democracy should be outraged by the expense and special-interest involvement in the 2002 judicial elections in Ohio. This is the dark side of democracy.” Thomas Moyer, the Chief Justice of the Ohio Supreme Court

Ohio’s system of judicial elections is broken and in need of reform. A 2002 Capital University Law Review article argued that “although there may be no good method of selecting and retaining judges, there is a worst method, and Ohio is among the states to have found it. That worst method is one in which judges qualify for their jobs by raising very large sums of money from lawyers, litigants, and special interest groups, and retain their offices only by continuing to raise such funds. Paul D. Carrington and Adam R. Long (2002). Law Review 30:455-487 “The Independence and Democratic Accountability of the Supreme Court of Ohio” (page 472). Capital University

We understand why the general public is frustrated

What can be done?

Judicial Ethics

   Every Judge is bound by a strict Judicial Code of Conduct Many of the provisions are specifically designed to safeguard the independence of the judiciary Many of the rules include limitations on campaign contributions and what a judicial candidate or judge can say about issues that are either pending before the court or likely to come before the court

The Irony

 Judges - attempting to maintain the independence of the judiciary create rules for Judges to follow when campaigning and speaking in public  Judges have ruled that the 1 st Amendment rights of individual Judges trump the rules created by Judges

Republican Party v White United States Supreme Court (2002) Minnesota Code of Judicial Conduct 5(A)(3)(d)(i) prohibited a candidate from announcing views on any legal question within the province of the court except in the context of discussing past decisions – unless stare decisis [the rule of law that states decisions shall be made on prior cases] is rejected

The argument Gregory Wersal – candidate for justice of Minnesota Supreme Court argued that the rule violated his First Amendment Rights by impermissibly preventing him from speaking

The Supreme Court Decision

  “[T]he greater power to dispense with elections altogether does not include the lesser power to conduct elections under conditions of state-imposed voter ignorance. If the State chooses to tap the energy and the legitimizing power of the democratic process, it must accord the participants in that process ... the First Amendment rights that attach to their roles.” The Minnesota Supreme Court's canon of judicial conduct prohibiting candidates for judicial election from announcing their views on disputed legal and political issues violates the First Amendment.

The Honorable William M. O'NEILL, Plaintiff, v.

Jonathan E. COUGHLAN, Defendant.

Canon 7(B)(3)(b) provides that “[a]fter the day of the primary election, a judicial candidate shall not identify himself or herself in advertising as a member of or affiliated with a political party.” Federal District Judge Ann Aldrich ruled that this rule is unconstitutional as applied to candidate William M. O’Neill and that he is permitted to use his political affiliation in advertisements seeking judicial office

Does Ohio now have Contested Partisan elections?

 The O’Neill decision is not a mandate that you must identify your political party but you may

Has the recent trend of court decisions politicized the courts – to the extent that direct election of Judges is not desirable?

SANDRA DAY O’CONNOR

Concurring Opinion in Minnesota v White (2002): “the very practice of electing judges undermines [judicial impartiality]” and “if States have a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges”

Justice O’Connor November 15, 2007 Justice O’Connor in an article in the Wall Street Journal provides suggestions to fix the recent problems of high dollar campaigns

Justice O’Connor 3 Step proposal

1. Replace the partisan election of its judges with a merit-selection system, or at least with a nonpartisan system in which the candidates do not affiliate with political parties. In a typical merit-based system, an independent commission of knowledgeable citizens recommends several qualified candidates suitable for appointment by the governor of the state. After several years of service, the appointed judge's name is then submitted to the voters for an up or down vote known as a retention election.

2. Set up campaign-conduct committees to educate voters and the media about the criteria people should use to select judges. These committees can also publicize accurate information about the sources of big contributions, providing the kind of transparency that allows voters to decide whether a judicial candidate's impartiality may be compromised by her contributors. Finally, the committees can flag inappropriate campaign conduct and provide information to help voters interpret charges made in campaign advertising sound bites.

3. Distribute voter education pamphlets to provide accurate and unbiased information about the qualifications of a judicial candidate. Voter education guides can provide information about relevant qualifications that are often left out of campaign ads and meager media coverage.

CONCLUSION

We need to continue to seek ways to select Judges who will be true to the oath of office. This may be a different method at every level. It may be different in every State. The common denominator is to seek and find persons who will honor the oath of office – to be fair and impartial and make decisions without respect to persons – and base their decisions on the law – not for special interests or favor.