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Alabama State Bar Responds To Inaccurate Information On Merit Judicial Selection

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Montgomery, August 24, 2005 - The Alabama State Bar is responding strongly to recent false and misleading information concerning a proposed judicial selection amendment supported by the bar.

Alabama State Bar President, Bobby Segall, says that the bar has been attempting to address the problem of judicial selection in Alabama for many years. Segall states that "The vast amounts of money spent in appellate court judicial elections, mostly derived from special interest contributions, have eroded respect for, and confidence in, Alabama's judiciary both on the part of lawyers and the public. Despite that we have for the most part excellent appellate court judges, people simply do not believe that appellate judges who have received huge contributions from special interest groups can be truly objective and even handed. And, the problem has been exacerbated by recent demeaning political campaigns for judgeships."

The proposed constitutional amendment, endorsed by the Alabama State Bar Commission earlier in 2005, can be found on the bar's Web site. (A copy of the amendment can be viewed and printed below.) Retired Alabama Supreme Court justice, Gorman Houston, a 19-year veteran of the court and participant in three statewide elections, will lead a non-partisan citizens group to promote dissemination of information about the merit judicial selection plan and to educate the electorate.

View the Merit Selection Constiutional Amendment. (PDF)

Its highlights include the creation of a broad based Judicial Nominating Commission (much like those in use presently in six of Alabama's judicial circuits) and a Judicial Evaluation Commission. When there is a vacancy on an appellate court, the Nominating Commission will nominate three people, one of whom the Governor will appoint.

At the expiration of an appellate judge's term, the Judicial Evaluation Commission will publish its evaluation report, and the judge will stand for retention election.

Segall points out that the plan has come under grossly unfair and misleading attacks by Twinkle Andress Cavanaugh, the chair of Alabama's Republican Party. Others have raised good faith concerns. The following outlines points made by others and the Bar's response:

POINT/COUNTERPOINT FACTS
The Truth about Merit Judicial Selection in Alabama


I

A. Point: Liberal trial lawyers and Democrats are behind the proposal.

B. The Truth: The Alabama State Bar has supported a merit selection process for appellate judges for many years, including during the time democrats were dominant on the appellate courts. In 1997, under the leadership of State Bar President Warren Lightfoot, the Board of Bar Commissioners endorsed a proposal very similar to the one now proposed. The Committee that proposed the present plan to the Bar Commission was chaired by former bar president Bill Clark. The committee, comprised of very conservative lawyers, the majority of whom are Republicans, studied the issue for two years before proposing the plan to the Bar Commission.

II

A. Point: The proposal ends accountability of Judges.

B. The Truth: This proposal provides more accountability than the present system of special interest dominated, big money contested elections. First, there is no accountability now until after a judge has served a term. After each term, accountability is limited to withstanding whatever challenge is mounted by specific opponents.

Under this proposal, when one initially seeks appointment to a judicial vacancy, his or her qualifications are evaluated by a Judicial Nominating Commission and then by the Governor. These evaluations hold applicants for appointment accountable for their pre-application professional and personal conduct. After a judge completes each term, an objective evaluation conducted by the Judicial Evaluation Commission is provided to the public. The public then votes in a retention election on whether the judge is to serve another term or not. The public=s attention is focused keenly and solely on the issue of the judges prior service. That is accountability in the truest sense.

III

A. Point: This proposal erodes the right to vote.

B. The Truth: Although the public does not vote for the initial selection of a judge, it does vote thereafter in retention elections.

IV

A. Point: The Judicial Nominating Commission is made up of lawyers, and is dominated by trial lawyers.

B. The Truth: The Judicial Nominating Commission is not comprised entirely of lawyers and is certainly not dominated by trial lawyers. Rather the nine member Commission is comprised of four non-lawyers, four lawyers, and one sitting judge. Three of the four lawyers are appointed by the Board of Bar Commission and only one of the three can be a trial lawyer. One must be a member of the Alabama (civil) Defense Lawyers Association and one must be a member neither of the Trial Lawyers nor Defense Lawyers Associations. The predominantly black Alabama Lawyers Association appoints the fourth lawyer. Moreover, lawyers have nothing to do with the appointment of non-lawyers, and the appellate courts select the judge who serves on the Nominating Commission.

The Judicial Evaluation Commission also includes non-lawyers. In fact, of the 11 people on the Commission, only four are practicing lawyers. Other members include the Chief Justice of the Alabama Supreme Court and the presiding judge of either the Court of Civil Appeals or the Court of Criminal Appeals as determined by the Chief Justice. The dominant category of membership consists of five non-lawyers.

V

A. Point: The motivation behind this proposal is to bring back the days of jackpot justice by putting liberal democrats on courts dominated by Republican.

B. The Truth: This proposal protects presently serving judges (or at least those elected in November of 2006 - - the proposal under the best of circumstances will not be law by the time of that election) from ever again being subjected to contested, partisan, mud-slinging elections. Accordingly, assuming Republican judges are elected in November; those judges should/will have a decided advantage in remaining on the court. Moreover, whatever party is the dominant in Alabama should maintain dominance on the court because the ultimate appointment is made by the governor.

The point is that there is no interest in changing the present make up of the Court. The sole interest is in eliminating the kind of elections that destroy the faith lawyers and the public are willing to impose in the judiciary and, therefore, in our system of justice.

VI

A. Point: The purpose behind the proposal is to select Alabama appellate court judges the same way federal judges are selected.

B. The Truth: This is simply false. See the above paragraphs.

VII

A. Point: In a retention election, it could be too easy to defeat a sitting judge.

B. The Truth: This point is regarded as a good faith concern. But experience in other states with systems like, or similar to, the one proposed by the Bar has been to the contrary. The defeat of sitting judges has been by far the exception rather than the rule. And, there is absolutely no reason to believe that Alabama=s experience will be any different. Special interest groups, including Trial Lawyers, Defense Lawyers, the Business Council and others are no more aggressive in Alabama than in many other states.

VIII

A. Point: This proposal is radical and out of the mainstream across the United States.

B. The Truth: Alabama is one out of only seven states that still elect judges in contested partisan elections. States that have carefully examined the grave harm contested elections do to their judges and to the public=s confidence in the judiciary, have changed to selection systems like, or similar to, this proposal.

XI

A. Point: The problem has been exaggerated. Not that much money has been spent in Alabama.

B. The Truth: According to the Montgomery Advertiser, for the last decade (ending with the 2004 elections), Alabama was first in the country in the money spent on State Supreme Court elections. During the decade, candidates for the Alabama Supreme Court spent $41 million compared to the $27.5 million spent by the second highest spender, candidates for the Texas Supreme Court.