Are Judicial Elections Still Good For Nevada? Doesn't Recusal Solve Everything? I've Solved The Problem...

On Monday, an Article was posted at The Blog of Legal Times entitled "On Judicial Elections and Judicial Recusal" by Tony Mauro. In this article, Mr. Mauro cites commentary by two Justices of the Pennsylvania Supreme Court at a recent meeting before the American Academy of Appellate Lawyers in Philadelphia, on Friday October 9, 2009. Mr. Mauro quotes many relevant portions of the Justices speeches that are important to note for our discussion in Nevada regarding whether we should elect or appoint our judges. My commentary on related topics can be found at these links: Judicial Elections, Judicial Corruption & Elections. My most relevant Post generates a solution to the debate: HERE.

All quotes in this Post are sourced to Mr. Mauro.

Judicial Appointment Is Back Room Politics, Judicial Election Is Open Room Politics

In line with the point I have been making for years, Justice Seamus McCaffery states, "Appointment is no less political. It's political at a back room level." Justice McCaffery is a former Marine and Philadelphia police officer who was elected to the Pennsylvania's highest court in 2007. Mauro notes that, "McCaffery minced no words as he said federal judges are often picked based on some political deal or connections involving a state's senators, or result from contributions to political candidates by a nominee's law firm over time. To anyone who thinks federal judgeships are appointed based only on merit, McCaffery said, 'I've got some bridges to sell you.'"

Nevada is no different here. Appointed judges are accountable to fewer people. Elected judges are usually brought to the bench amidst public scrutiny. The solution is not to strip the public of their in put, not to take away our contribution and judgement. The solution is to provide more access, more information, more accountability between the judges and the public. Justice McCaffery is exactly on point when he states that, "It's insulting to say to the public, 'you're not smart enough to elect your judges.'" McCaffery admits that he is not "appointable", given his police officer career, but rather he is "electable".

Justice Debra Todd follows up this point that was made by Justice McCaffery by stating that appointed judges "are not in any way superior to elected judges." So why the desire for change. Well, many folks in power seek the opportunity to centralize the appointment process so that no judge, outside the loop, is able to enter the office. The excuse is the Judge Halverson is the type of judge that the electorate provides, while the appointment process would never have provided her. True. However, the system worked the way it was supposed to work. She is no longer a judge, that was done by the electorate, too. You can look at my list HERE and draw your own conclusions about what we get from appointment vs. election. I will submit to you that, generally speaking about the 8th Judicial District of Nevada, all of our BEST judges were elected. Our worst were initially appointed.

Mauro points out that, "[a]mong other benefits, [Justice Todd] said, elections give 'finality and certainty' to filling vacancies, whereas federal judgeships can go unfilled for months or years depending on political dynamics in Washington. [Justice Todd] acknowledged that judicial elections have become more contentious and political in recent years, and that she was under pressure to answer questionnaires about her views on a range of issues, but she resisted. 'That did lose me some votes, no doubt.'" (Mauro)

Caperton's Relevance?

The luncheon that the Justices spoke at included other topics, including a discussion of Caperton v. A.T. Massey Coal Co. As we discussed this decision that was issued in June (HERE), it was held that under certain circumstances, campaign spending by litigants can create an obstacle to due process and would require a judge to recuse from the action. The Court did provide some standards and some guidance, though we could have used more.

"Bert Brandenburg, executive director of Justice at Stake, suggested it may be too early to assess the impact of Caperton. For one thing, he said, recordkeeping on recusal motions is uneven in courts across the country. Brandenburg said that as a result of the decision and increased interest in establishing rules for judicial recusal, 'we're having a different discussion than 10 years ago.' Until recently, Brandenburg explained, recusal was not viewed as a significant remedy for the influence of campaign money in judicial elections." (Mauro).

In Nevada, we are very sensitive to filing Motions to Recuse. Thus, it does not appear that there has been an increase in Recusal Motions, after Caperton, though it is certainly being discussed. More notably, the judges have not increased their recusal. (This is not what you would expect if they are taking Caperton seriously). That may be because no one is paying it any attention in reality. It sounds good on paper & we can talk about it, but practically, the judges (those that act on the case law) will do nothing to change their activity.

George Patton Jr. of Bose McKinney & Evans in D.C., who co-authored a brief in the case for the Conference of Chief Justices states that to some, "it does look a lot like Bush v. Gore." In other words, Caperton could possibly "[turn] out to be a decision that applies only to the specific case before the Court, with little or no impact in other cases." (Mauro).

Do We Even Care In Nevada?

Even if the judges are doing little to nothing to address the valid points brought up by the U.S. Supreme Court, the litigants and the attorneys do care about the bias that is created in the judiciary by contributions, relationships, and favors for elections or appointments. As one commentor to Mauro's article states, "The right to a substitution of judge without cause (as we have in Illinois) is the only practical way around the problem and, even then, it is unwise to use it to get away from the presiding judge in a division if you regularly litigate there." (Rich). Another commentor says, "If you never were friends with the judge, and never expected to be, go right ahead and file." (Philip).

In Nevada? Yes, we care. Electing judges was brought back into our state many decades ago, in an effort to get ride of political corruption. Why would 'logical reason' tell us anything other than that appointment and a reduction in public accountability will lead to more political corruption. Sure, it takes a lot of money to get elected. That needs to be changed. Information needs to be compiled by the State, relevant to judicial performance of their duties. Limits on spending can be imposed. Assistance for judicial campaigns can be provided. What we should not do is use Halverson as the symbol of failure in the system. She was a failure, but appointment does not solve the basis for that problem, either.

Again, My Solution to the system-wide issues relevant to judicial elections vs. judicial appointment is as follows (it is not the Current Proposal to amend the Nevada Constitution that will be on the Ballot in 2010):

1. Stiffen Judicial Cannons to restrict appearances by attorneys, parties & judicial candidate opponents when they contribute to the campaigns of judges in any significant manner (in Nevada, $3,000.00)or when they challenge the seated judge via election. (This provides for more strict accountability);

2. Provide Judicial Evaluations of ALL Nevada judges on various topics every other year, ensuring an evaluation is completed in the year of any election. (This provides for more accurate information for the voters, certainly more than what is available to the appointment committee);

3. Have a Retention Election after the first 2 years of their seating, once a judge is elected or appointed to fill a vacancy, with a mandatory 55% approval by the voters, or be dismissed. If the judge runs 'unopposed' in any future elections, institute an 'automatic mandatory retention election' for all 'unopposed' judges whereby the judge must again receive a 55% approval or be dismissed. Retention Elections would only be necessary if 'unopposed'. (This provides for ALL judges to be challenged, as we currently have the majority of judges running 'unopposed' out of fear from challengers being ostracised from the legal community).

What do you think?!? If you don't enter the discussion, you don't get to question the results...

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