Process for ethics charges is flawed – [Editorial]
The Tuscaloosa News
April 26, 2010.
We don’t agree with the logic state Supreme Court Justice Patti Smith used to defend a ruling that makes it harder to bring ethics charges against judges, but we do agree with one point she makes: Part of the problem is the partisan politics that enters into choosing Alabama’s judges.
Early this month, eight Republicans on the Supreme Court ruled against recommendations from the Alabama Bar Association to change the rules for bringing charges against judges. The lone Democrat on the court, Justice Sue Bell Cobb, wrote a dissenting opinion in favor of the rules change.
As it stands, the state Judicial Inquiry Commission must notify judges when someone files a complaint against them and also share the nature of the evidence against them, even the name of the person bringing the complaint.
Since those rules went into effect in 2001, the number of complaints against judges has plummeted. No wonder. Lawyers, who are usually the ones in the best position to know when judges break ethical standards, don’t want put go out on the limb if the charges are not sustained.
Certainly judges who are accused of misdeeds must have the right to face their accusers and respond to any evidence against them. But only if the accusations are referred to the Court of the Judiciary for trial. That’s how it works in other states.
“How this court’s action — or inaction — today might serve to engender the ‘respect of the people,’ ... I cannot imagine,” Justice Cobb wrote in her dissent.
Justice Smith responded this week by saying those rules may be out of step with the nation, but that’s only because judges in Alabama are chosen by a peculiar system of partisan elections.
Smith said the Supreme Court’s decision “occurred in the unique context of this state.” She noted that complaints against judges increased after Republicans started winning more seats on Alabama’s courts in the mid-1990s, and they declined after the 2001 rule change.
We don’t think that judges started getting more corrupt after Republicans were elected, nor that judges have gotten more ethical since the rules changed.
Instead, the infusion of campaign money into the elections of judges has spiked during the past two decades. Judicial races in Alabama are among the most costly in the nation.
If judges are supposed to apply the law to the facts before them, and not take politics into account in their rulings, why do they run as Republicans and Democrats? How does it help public confidence in justice when judges are deciding cases involving industries that contribute huge sums to their campaigns?
Aren’t these reasons we need to provide reasonable protections for those who see abuses of judicial power and want to report them?
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Local Area courts getting by despite budget woes
Joe McAdory, Opelika-Auburn News
April 24, 2010
There are no merit pay raises. A hiring freeze has been imposed. Travel expenses have been limited to a bare minimum. Paychecks are made via direct deposit to save paper and postage.
Even Post-It notes were briefly eliminated.
Alabama’s judicial system faces massive financial restrictions as its proposed budget for fiscal year 2011 drops from $164.6 million to $128.9 million, and Lee County’s T.K. Davis Justice Center is not immune — from the courts all the way to the district attorney’s office. The Lee County Sheriff’s Office is not affected.
Circuit Judge Jacob A. Walker III said justice center employees have felt the economic pinch for some time as spending cutbacks — issued through the Alabama Administrative Office of Courts in Montgomery by administrative director of courts Callie Dietz and Supreme Court Chief Justice Sue Bell Cobb — have been the order of the day long before the proposed budget was announced. The courts are 100 percent state funded.
“The administration saw the storm clouds brewing and put plans in place,” he said. “By having these plans in place, hopefully we can get by without drastic layoffs. Her (Cobb’s) plan is working. I think they were very prudent to start early. We’ve been under various orders that are saving money. By imposing that plan, we may be able to scrape through it.”
Lee County Court Administrator Trisha Campbell agreed.
“I’m certainly not complaining. They’re saying we’re going with business-essential items to make it through the end of the year,” she said. “A Post-It note is not a business-essential item. I’d rather save money and save jobs. We need the personnel.
“Sometimes everything you ask for is approved. Lately, because they are trying to cut corners, they are cutting our purchase orders.”
But the cutbacks could put a strain on Lee County courts, if positions, when they become vacant, cannot be filled.
Jobs in jeopardy
Last month, Cobb announced that more than 100 temporary employees in courthouses across the state would be laid off as a result of financial shortages.
“While I greatly regret having to take action at this time, I have received no encouraging information from the Legislative leadership or executive branch regarding federal funds to be received by Alabama,” Cobb said at the time of the layoffs. “Therefore, this action must be taken now to help stabilize the budget for courts. Even with this action, it is possible that further reductions will have to be made.”
The action put the jobs of three Lee County Justice Center temporary employees in jeopardy. Lee County Circuit Court Clerk Corinne Hurst said two clerks in her office were affected. Another employee affected was a law clerk in Family Court Judge Richard Lane’s office.
But Hurst noted both clerks in her office remain employed, paid by local funds and money through the Department of Human Resources and AOC.
The justice center is home to 58 full-time employees.
Clerks provide critical assistance to judges with researching issues relevant to respective cases, answering phone calls, pulling legal files and reviewing criminal dockets. The base salary for circuit clerks in Alabama is $69,098.40.
“Right now, it’s not really affecting my office. I still have my law clerk,” Walker said. “If he were to leave and make a change in his career path, I’d probably not be able to fill that position.”
Then what?
“That would greatly affect the efficiency of the office,” he said. “You’re going to increase your hours, but the job will get done. You’d see more people taking cases home with them at night. People would have to wait longer for questions to be answered. It slows down your response time. I think it’s still a desirable job. But you’re a public servant and you do what is necessary.”
Veteran District Judge Mike Nix, who is retiring next year, said potential cutbacks would affect the circuit courts more than the district courts.
“We manage our resources very well,” Nix said, speaking for all local judges. “But district courts really don’t have anybody susceptible to have their positions cut. We don’t have judicial assistants.”
With budget cuts potentially creating a burden on the courts and judges, is there a chance that justice in Lee County could be compromised?
Walker doesn’t think so.
“It may be delayed, and that’s a bad thing,” he said. “People here are still very conscious that they are trying to serve the public. They will put in additional hours to make sure that things are done.”
More cuts on the horizon?
Financial restraints don’t make things any easier for prosecution in Lee County. District Attorney Nick Abbett reported the local DA office was provided $631,630.99 in state funding in 2009, but only $607,501 in 2010.
And what about 2011?
Abbett fears another 7 percent could be trimmed.
“I wouldn’t say justice will be compromised, but it does get harder to handle the number of cases that come through here without adequate personnel,” said Abbett, who is retiring at the end of the year.
Former Chief Assistant District Attorney David Glanzer retired earlier this year, allowing the office to save what Abbett considered “a good chunk of money, but we lost personnel at the same time.”
The position has not been filled, leaving Abbett with three full-time attorneys to assist in prosecution. Should current Chief Assistant District Attorney Robbie Treese be elected into the district attorney position, Abbett said he would be able to fill his old slot, but that would not increase the office’s number of employees with Abbett’s retirement.
“Most of my expenses are employee costs,” said Abbett, who noted there were 20 total employees in the DA’s office.
Abbett’s office is taking another financial hit with the drop in worthless checks. Such fees go into the DA office’s fund.
“It’s dwindling because people don’t accept checks as much anymore,” he said.
That, and many people are paying for items with debit cards rather than checks.
“I fully expect to have additional cuts this year because of a drop in revenue,” said Abbett, who does not see a spike in local crime despite the poor economy. “The justice system suffers because of a lack of personnel and prosecutors suffer because of a lack of resources in the court system.
“In the long haul, the entire justice system takes a hit. If state government suffers, then every form of government suffers.”
‘Nervous as they can be’
The last thing justice center employees want to see are layoffs.
“There’s not equipment you can cut,” Walker said. “Ninety-seven percent of our administrative budget goes directly to personnel. When we go through proration, the court system is hit worse because there aren’t other areas to cut because of personnel.”
Campbell said layoffs, if necessary, would be made on the most recent hires, which often include the lowest salaries. Elected officials are legally immune to layoffs.
“There’s been a lot of worry in the system for years,” Hurst said. “Employees have gone years without merit raises. This cloud has all employees as nervous as they can be.”
Hurst said she currently has 16 full-time employees in the circuit clerk’s office, which she considered the “hub of the local court system.”
“We know there could be further cuts,” she said. “If so, I can’t afford to keep them all. Everyone is bracing for what is the result of a bad economy and how it affects state revenue.”
Walker understands.
“If you have massive layoffs, there won’t be enough personnel in the clerks’ offices to process the case flow or to review it,” Walker said. “This would backlog the system, but we’ll do whatever it takes to get the job done.”
Currently, a circuit court judge in Alabama draws an annual base salary of $119,948.50. District court judges earn $118,948.50 annually.
Pinching pennies
The state is taking another measure to trim costs — asking jurors to waive the $10 daily jury duty fee. Walker noted the state can spend up to $2 million annually on jurors.
“It’s not much, but when you add up $10 per day ...” Walker said.
“We’ve tried to ask for unpaid furloughs,” Walker said. “We would give up daily pay. But that bill didn’t go anywhere with the Legislature. We’d rather see a few days of unpaid leave and keep personnel in place rather than lay people off. Some states do it.
“We’ll be careful with every dime we spend.”
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COLUMN: Lawyers don't receive the respect they've earned
By J Karl Miller, The Columbia Missourian
April 27, 2010
Commensurate with the sharp decline in the public's opinion of lawyers, among the most quoted defamation of attorneys is found in Shakespeare's Henry VI, Act IV: "The first thing we do, let's kill all the lawyers." This is guaranteed to elicit chuckles and more than a few nods of approval. I must admit to finding it humorous upon occasion also.
Although never matching that of the clergy or physicians, throughout much of American history, lawyers have enjoyed the trust and respect of the people, an accommodation seen in the frequency of their selection to serve in public office. But, the last thirty-odd years have seen a marked decline in public opinion. A 1973 Harris Poll reported 24 percent had "a great deal of confidence" in law firms, but that figure had dropped to 7 percent in 1997.
Most probable among the factors affecting the decline in the public's perception of attorneys are the steep increase in lawyer fees along with a commensurate rise in the number of lawyers — fairly or unfairly, they are seen as overpaid and overabundant. Frivolous lawsuits (McDonald's hot coffee, anyone?), high profile trials in which it appeared to most that justice was not served, tasteless television personal injury advertising and lawyers elected to public office behaving badly are all contributors to the public's increasingly negative view.
Lawyers are not without fault in this sinking public esteem, but they have not been well served by the print media, movies or television. Lawyers, primarily those serving the defense, are too often portrayed as dishonest, sleazy and opportunistic, caring only for sending criminals back onto the streets while extracting exorbitant fees. Many feel that the law profession has been less than diligent in policing itself. Nevertheless, as there are rotten apples galore in other walks of life, let us not judge the book merely by its soiled cover.
Why am I defending the legal profession, you may ask? In all fairness, the honest, hard working, dedicated attorneys outnumber those whose high-profile shenanigans are grist for the lawyer jokes and profligate attorneys. Additionally, those who perform the unheralded but fundamental roles on the bottom rung of the system — city and county court prosecutors, defenders and judges — merit a better fate.
In late February, I received a notice from the circuit court judge of Boone County. I had been selected as a prospective juror for a specified period and, if physically qualified to perform, I should return the notice stating any period of unavailability. I complied, and shortly I was given something that ranges between periodontal surgery and a month's visit from Dog the Bounty Hunter in acceptability level: a summons to jury duty.
Seriously, while it can be a very long day and the hardest $6 one ever earned if not selected as a juror, the process restores one's faith in our judicial system. Jury duty is orderly and well executed, from the introduction by the court marshal, the short film of explanation, the assignment of juror numbers and movement to the courtroom to meet with the judge and the trial and defense attorneys.
One gains a true appreciation for the judicial system in the "voir dire" (translation: "to speak the truth") process in the selection of jurors. This process consists of examination in court by the judge as well as the defense and trial attorneys to determine the bias or preconceived notions among those randomly selected for the jury pool. In voir dire, both the defense and the prosecution may object to the seating of a juror and, in some jurisdictions, the attorneys may challenge for cause.
The amount that the attorneys and the presiding judge take their responsibilities seriously is apparent from beginning to end. Prospective jurors are asked relevant questions and are also probed for experience, employment, mental convictions and beliefs that may relate to their acceptability for impanelling. The exchange is spirited and informative.
I won't insult the reader's intelligence by insinuating that a summons to jury duty is "as welcome as the flowers in May". However, it is as important and necessary a civic duty as one is obligated to perform. Amendment VI of the Constitution guarantees the right to a speedy and public trial by an impartial jury, while Amendment VII preserves the right of trial by jury in other than criminal cases. The guardians of that right are found in the trenches of our city and county courts — the dedicated trial and defense attorneys and judges steeped in the law.
Consequently, what do you do the next time you feel the urge to laugh at lawyer jokes? Answer: Stop and think. Lawyers don't think they're funny, and nobody else thinks they're jokes. The next time you need legal aid or advice, do you call a lawyer or a comedian?
J. Karl Miller retired as a colonel in the Marine Corps. He is a Columbia resident and can be reached via e-mail at JKarlUSMC@aol.com.
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Bar Leaders Ask Congress To Boost LSC Funding
By Marcia Coyle, National Law Journal
April 23, 2010
The presidents of 61 state and territorial bar associations and their counterparts at five national bar associations have sent a letter to Congress asking for increased funding for the Legal Services Corp.
The April 20 letter urges the lawmakers to add at least $15 million in new funds, raising the LSC budget to a minimum of $435 million. The bar leaders say more funds are needed to cover a growing gap in aid that has been confirmed by recent studies, such as the 2009 LSC Justice Gap study. That study is an annual analysis by the LSC measuring the difference between the level of civil legal assistance available and the level needed to meet the needs of low-income individuals and families.
The 2009 report, released last September, projected that LSC programs will not be able to meet the legal needs of about 944,000 poor people seeking assistance in 2009, slightly more people than the programs served in 2008. In one category -- foreclosures -- LSC-funded programs were projected to turn away two for every person served. Programs also would take up fewer than half of the requests for help with employment and family law matters, according to the report.
"Without community legal aid providers, we have no hope of offering justice to struggling Americans,” said American Bar Association President Carolyn Lamm in an April 21 statement. “That’s why presidents of all state and territorial bar associations and leaders of four major U.S. bars of color have joined the ABA to press for proper funding and reauthorization of the Legal Services Corporation.”
The LSC was created by Congress in 1974. It was last reauthorized by the lawmakers in 1977 and that reauthorization expired in 1980. Congress has continued to appropriate funds for the LSC and has imposed a series of substantive rules and changes through riders on the appropriations bills.
“Much has changed in 30 years and LSC needs Congress to enable it to be current with today’s needs,” said Lamm. “We call on Congress to produce a final bill that will not only improve the efficiency and the delivery of legal services to low-income people, but will also strengthen governance and accountability.”
In March 2009, Sen. Tom Harkin (D-Iowa) introduced the Civil Access to Justice Act, a bill to reauthorize the LSC and increase its funding level to $750 million, which is approximately the amount, he said, appropriated in 1981, adjusted for inflation.
The letter, supported by the National Conference of Bar Presidents, includes the signature of 61 state and territorial bar presidents and the presidents of the ABA, National Bar Association, Hispanic National Bar Association, National Asian Pacific Bar Association and National Native American Bar Association.
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Indigent defense legislation delayed until next year
By Bill Rankin, The Atlanta Journal-Constitution
April 22, 2010
Key state lawmakers on Thursday backed off plans to transfer a large chunk of the state's public defender system over to county control.
House Judiciary Non-Civil Committee Chairman Rich Golick (R-Smyrna) made the announcement after being assured his committee would receive a proposal that would contain "runaway costs" and maintain an effective defender system. Leaders representing the Georgia Public Defender Standards Council and the State Bar of Georgia agreed to present such legislation by the end of the year.
Golick also strongly criticized lawyers who have filed lawsuits against the struggling system, saying they "are more concerned with bringing the system to its knees." The groups have no interest in finding fiscally responsible solutions that help move the system forward and instead file headline-grabbing lawsuits that let them "pound their chests in righteous indignation."
Sara Totonchi, executive director of the Southern Center for Human Rights, which has led the litigation, said the suits have been brought on behalf of hundreds of Georgians who had not been provided lawyers to represent them as required by law.
"We have only sought to strengthen the system," Totonchi said after the hearing. "The state hasn't been providing lawyers to people entitled to counsel. It's unconstitutional. It's unfair."
Earlier this week, Golick floated a much-anticipated proposal to turn over thousands of indigent defense cases to county control.
The proposal would have imposed a $100 fine -- on top of other fines and fees -- in criminal cases to pay for the transfer of "conflict" cases to county-run programs. Under this proposal, state-salaried public defenders would have represented one defendant in a multi-defendant indictment, with counties assigning lawyers for the other co-defendants.
According to defender council projections, there will be more than 9,000 conflict cases during the current fiscal year at a cost of $8.1 million -- almost 20 percent of the agency's $40.9 million budget. The state defender system, which began representing poor people accused of crimes in 2005, replaced an uneven system of county-run programs, many of which were found unable to provide adequate representation.
At Thursday's hearing, Golick expressed concern about the expense of defending conflict cases. "We can't keep on the current path," he said. "It's just unsustainable."
Golick urged leaders of the defender system and the state's legal system to find a workable solution. "We're going to give this one last chance," he said.
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Justices defend decision on complaints
By Phillip Rawls, The Associated Press
April 21, 2010
Two Republican justices are defending a decision by the GOP majority on the Alabama Supreme Court to reject rule changes that would have made it easier for the public to file complaints against judges.
Justice Patti Smith wrote that Alabama's rules discouraging complaints against judges may be out of step with the rest of the nation. But she said they take into account that Alabama, unlike most states, picks judges in partisan elections that are hotly contested.
Most states have appointed judges or nonpartisan judicial elections, but Alabama's judges run as Democrats or Republicans and must win full terms in elections.
Smith said the Supreme Court's decision "occurred in the unique context of this state."
A committee of the American Bar Association had recommended that Alabama do away with a rule that requires the state Judicial Inquiry Commission to notify judges when someone files a complaint against them and the commission is investigating it. The rule also requires the commission to notify the judge of the evidence that is gathered.
The ABA panel said the rules had a "chilling effect" on those filing a complaint.
On April 1, the Alabama Supreme Court's eight Republicans disagreed with the ABA committee's recommendation. The court's lone Democrat, Chief Justice Sue Bell Cobb, favored changing the rules, which she said are "out of the mainstream of America law."
Two weeks after the decision was released, Smith and Justice Mike Bolin issued special writings defending it and saying they were never notified the decision was going to be released on April 1. The decision was not publicly announced, but The Associated Press disclosed it April 11 after learning of it from court officials.
Bolin said he was trying to balance "the rights of all concerned in matters involving judicial discipline."
The Judicial Inquiry Commission receives complaints against judges. If it decides they have merit, it refers the complaints to the Court of the Judiciary for trial.
Alabama residents used to be able to file anonymous complaints against judges, but the Supreme Court ended that in 2001. Advocates of anonymous complaints say lawyers and court employees are reluctant to file complaints against judges they practice before or see on a daily basis.
Smith wrote that complaints against judges increased after Republicans started winning more seats on Alabama's courts in the mid-1990s, and they declined after the 2001 rule change.
Alabama is one of seven states that elect Supreme Court justices in partisan elections. Bills have been introduced in the Legislature many times to change Alabama to nonpartisan elections for all judges, but none has ever passed.
Back when Democrats dominated Alabama's appellate courts, the Democratic Party fought the legislation. Now that Republicans hold all but one seat on the appellate courts, the Republican Party opposes nonpartisan elections.
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Court should rethink inquiry rules – [Editorial]
The Montgomery Advertiser
April 19, 2010
An allegation of unethical conduct by a judge is a serious matter, all the more so because the confidence of the people in the court system rests to a great extent on their confidence in the integrity of judges. Yet Alabama has rules on judicial inquiries that can serve to discourage complaints, and that cannot be healthy for the state in the long term.
Earlier this month, the Alabama Supreme Court, which sets the rules, declined to adopt changes in those rules recommended by a committee of the American Bar Association. The vote was 8-1, with only Chief Justice Sue Bell Cobb supporting the changes. There was no public announcement of the decision, but The Associated Press reported it last week.
In her dissent, Cobb noted that Alabama's rules impose requirements that are not found in any other state and that "engender a fear of retribution" in anyone who might know of possible improprieties. "Why would the highest court in Alabama make it more difficult to discipline an unethical judge?" she wrote.
Why indeed? Judges are not Olympian figures who stand above scrutiny, or at least they shouldn't be.
Under the current rules, an accusation of unethical conduct by a judge may be filed with the Judicial Inquiry Commission, which operates somewhat like a grand jury in investigating the matter. If the commission finds evidence of wrongdoing, it refers the case to the Court of the Judiciary, which conducts a trial of the judge. Depending on the outcome of that trial, the Court of the Judiciary can go as far as removing the judge from office.
However, Alabama's inquiry rules stand out among those in other states because they do not protect the identity of the person filing the complaint. They also provide the judge with information on evidence gathered and persons interviewed during the investigation. That's where the grand jury analogy ends.
This practice obviously creates the "chilling effect" noted by the ABA's Standing Committee on Professional discipline when -- at the Supreme Court's request -- it reviewed Alabama's rules and recommended changes. It is disappointing that the court has chosen to ignore that advice.
Under the current rules, it is easy to see why lawyers and court personnel, the individuals most likely to see indications of impropriety, would be reluctant to file complaints against judges before whom they must practice or under whose authority they work.
What is wrong with withholding the name of a complainant while the Judicial Inquiry Commission conducts an investigation, which may lead to no further action being taken? If -- and it's no small if -- the inquiry leads to filing of charges with the Court of the Judiciary, then of course the defendant judge should face his or her accuser.
And why should a judge be provided information on evidence and witnesses while the investigation is under way? If the inquiry leads to charges -- again no small if -- at that time the accused judge should be provided with that information.
The Supreme Court is from time to time asked to reconsider a decision. It plainly should rethink this one.
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Courts: Judicial ethics code updated – [Editorial]
Jackson Clarion-Ledger (Miss.)
April 19, 2010
The Judicial Code of Conduct is not something most average Mississippians would grab to read on a rainy day. In fact, it is something most lawyers and judges would read only when they had to do so.
But coming off a period of scrutiny on the legal profession and approaching another year of judicial elections, the Code of Judicial Conduct is something that is very important to the public as well as the legal world.
A special committee of lawyers and judges has recommended several changes to the Code of Judicial Conduct that tighten the rules and should give the public more confidence in the legal system.
Luther Munford, chairman of the Code of Judicial Conduct Study Committee, said the changes take into account revisions in the American Bar Association model code.
"We wanted to make the rules clearer so that lawyers and judges would know what is allowed, and what is not," Munford said.
That is important for judges; it also is important for the public to know in a state that chooses its judges at the ballot box.
One important change involves judges hearing cases that might involve a contributor to the judge's campaign. The proposal would change the current rule that requires a judge to recuse himself or herself in a case if a specific dollar amount has been given by a "major donor." The rule now would substitute a general requirement that a judge recuse himself or herself when a party, a party's lawyer, or an independent group has made contributions which are illegal or would "create an appearance of impropriety.'"
A West Virginia case involving a judge who received $3 million in contributions and voted to overturn a case involving the contributor resulted in a U.S. Supreme Court ruling. Munford said the proposed revision adopts the approach taken by the court.
The changes would toughen rules on contributions, including prohibiting judges from being involved with soliciting funds from other judges. It prohibits a judge from appointing anyone to a position who has given more than $2,500. It also would require reporting gifts of more than $500. There also is an advisory committee to advise judges or candidates whenever ethical questions are raised.
Justice court judge races also would fall under these new rules.
Voters will elect a Supreme Court judge, four Appeals Court judges, all Chancery and Circuit judges and County Court judges this year. The new rules will not apply this year.
Electing judges creates many ethical questions and issues. Some Mississippi high court races have turned into big money, special-interest-driven free-for-alls, in which the candidates don't even have control over attack ads.
The system needs reform, but -for now - it is the system Mississippi has. The Supreme Court and this committee are to be commended for seeking to provide clearer rules of conduct for judicial candidates. The voting public should hold judicial candidates to the highest standards.
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The new legal aid: Do it yourself
By DAVID CHANEN, Minneapolis-St. Paul Star Tribune (Minn.)
April 19, 2010
In bad economic times, public law libraries boom with visitors needing legal advice. Do-it-yourself legal work has become the way, from bankruptcy filings to fighting an eviction.
Edward McComb wandered into the Anoka County law library, his initial step in trying to gain child visitation rights. He was greeted by longtime library director Gene Myers, who knows how to make the burdensome legal task feel like an information-filled walk in the park.
As he printed out a stack of forms, Myers guided the patron to a useful website and tackled question after question. The next visitor was already perched at Myers' desk.
McComb is typical of the growing masses using law libraries during these tough economic times, Myers said. Hiring an attorney isn't an option right now, so he will try to navigate the legal maze himself.
Myers expects more than 12,000 people to drop in this year, compared with 2,000 in 2001.
Unexpected financial woes have made pro se, or self-representation, the way in court, he said. Any given day brings somebody to the library looking to fight an eviction or expunge a criminal record, for example. Myers may also research a request about a civil or criminal procedure or guide an Internet search to review trial court records.
"The court system is an adversarial system," he said. "When you walk into our environment, we don't take sides. We don't care if you are a judge or private citizen. We are respectful and responsive to everybody."
Every county in the state has a public law library at its courthouse, although only metro area facilities and a couple of larger outstate counties have full-time staff.
Some libraries are nothing more than a room with a computer, while those in Hennepin and Ramsey counties occupy an entire courthouse floor. Most funding comes from court filing fees and ticket fines.
Myers and his associate Merry Conway have worked together for more than 20 years, and they've pretty much seen it all. More than 75 percent of their patrons come from the general public, and family law issues involving divorce, child custody, child support and adoption are the most common subjects.
In Hennepin County, ordinary citizens use the law library less often, tending to go to two walk-in self-help centers instead. While the law library is a key resource for the county attorney's office, law clerks and the many large downtown Minneapolis law firms, the two centers and their staffs handled 43,688 visitors last year.
Emotions come through
Sometimes, Myers said, people will break down and cry while telling their story. Occasionally somebody becomes so agitated a deputy is asked to escort the person from the building.
"I saw a person in the courthouse three or four months after I helped him," Myers said. "He told me he might have killed himself if I hadn't helped him that day."
Court clerks and judges routinely send litigants representing themselves to get library help. Anoka County Judge Lawrence Johnson, a member of the library board, recently suggested that a pro se litigant visit the library because he didn't understand the concept of a summons. If the litigant isn't prepared, a judge's workload increases and clogs up the system, said Anoka County Judge Michael Roith.
"I was surprised that the percentage of library use by attorneys was so low," Johnson said. "At one point our library was a fairly small room hidden in the courthouse and you had to be on the inside to know where it was. But we now have a much more open facility."
Myers hears many stories about people having to let their attorneys go because their cases haven't been resolved and they're out of money. Increases in court filing fees and fines have also created a financial hardship for many pro se users of the court system, he said. Many are filing fee-waiver requests for civil matters, he said.
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Alabama Supreme Court keeps rules discouraging ethical complaints against judges
By The Associated Press
April 11, 2010
MONTGOMERY, Ala. -- The Republican majority on the Alabama Supreme Court has rejected proposals to make it easier for the public to file complaints accusing judges of unethical conduct.
The court's eight Republicans decided to maintain rules that legal groups say are out of step with the rest of the country and designed to stifle complaints. The rules include giving the judge the name of the person who filed a complaint, what it entails and any evidence gathered during the investigation of the complaint.
The rules do allow for the information in the complaint to be withheld from a judge if there are indications the judge might destroy evidence or pose a threat to someone.
The Supreme Court's lone Democrat, Chief Justice Sue Bell Cobb, urged the court to replace the rules with those recommended by a committee of the American Bar Association.
Cobb wrote that the current rules impose requirements that exist in no other state and "engender a fear of retribution" among anyone who complains about a judge.
"Why would the highest court in Alabama make it more difficult to discipline an unethical judge?" Cobb asked in her dissent.
The eight Republicans did not explain the majority's reasoning in their order of April 1. The order was not publicly announced, but The Associated Press learned of it from court officials.
Under Alabama law, the state Judicial Inquiry Commission receives complaints accusing judges of unethical conduct. The commission acts much like a grand jury. If it believes there has been wrongdoing, it refers the case to the state Court of the Judiciary, which tries the judge. The most serious action the court can take is removing a judge from office.
The court's most famous case in recent years has been the removal of Republican Chief Justice Roy Moore in 2003 for ignoring a federal judge's order to remove a Ten Commandments monument from the lobby of the state judicial building.
The Alabama Supreme Court sets the rules for the Judicial Inquiry Commission.
In 2001, when Moore was chief justice, the GOP-dominated Supreme Court changed the commission's rules to no longer protect the identity of people filing complaints. It wrote rules providing a judge with detailed information about a complaint, including who filed it, what evidence is gathered, and who is interviewed during the investigation.
That made the Judicial Inquiry Commission's work less like a grand jury, which operates largely in secret.
The Supreme Court made the rule changes retroactive so that they applied to charges the Judicial Inquiry Commission had brought against Supreme Court Justice Harold See. Those charges accused him of running false and misleading ads against Moore in the 2000 Republican primary for chief justice, which Moore won.
The Judicial Inquiry Commission chose to drop the See case rather than disclose its sources of information about his campaign ads.
See, who is now retired, said he hadn't seen the Supreme Court's recent ruling. But he said the Supreme Court's role is not to make it easy for the Judicial Inquiry Commission to prosecute a case; the court's role is to make the process just for everyone involved. He said it's the same reason police aren't allowed to write the rules for how criminal cases are handled in court.
The American Judicature Society, a nonprofit group that works to maintain the integrity of the courts, said Alabama's rules seemed designed to discourage complaints about judges and give more rights to judges than defendants in criminal courts get.
"No criminal who might lose their liberty or life is given these rights," said Cindy Gray, the society's director of judicial ethics.
In 2009, when Birmingham attorney Tom Wells was president of the American Bar Association, the association accepted an invitation from the Alabama Supreme Court to study Alabama's rules.
The ABA's Standing Committee on Professional Discipline recommended undoing several of the 2001 rule changes, including notification of the complainant and providing evidence while the investigation is in progress.
It found that telling a judge who filed a complaint "has a chilling effect on those who may want to file a complaint against a judge." The committee noted that complaints dropped significantly after the 2001 rule change that required a person's identity to be disclosed -- from 279 in 2000 to 159 in 2009.
Wells said the committee recommended rules changes that would put Alabama in line with the best practices in the country, but the Supreme Court has the final say. He said the court must balance the right of a person to face his accuser with the reluctance of a lawyer to file a complaint against a judge he must practice before or of a fellow judge to file a complaint against a colleague he sees every day.
DeKalb County Circuit Judge Randall Cole, a member of the Judicial Inquiry Commission for 13 years, said the commission was disappointed the Supreme Court didn't make more changes in the rules. He said lawyers and court personnel are in the best position to notice a problem with a judge, but they are reluctant to sign a complaint given the authority a judge has over them.
He also said supplying information to a judge during an investigation seems inappropriate. The time to supply it, he said, is if the commission decides to file charges with the Court of the Judiciary.
Moore, who was chief justice during the 2001 rule changes, declined comment on the Supreme Court's order.
In Chief Justice Cobb's dissent, she ended by saying: "How this court's action --or inaction -- today might serve to engender the 'respect of the people' that is so necessary for its existence, I cannot imagine."
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Judges should not be immune to public inquiries – [Editorial]
Opelika-Auburn News
April 13, 2010
Alabama does not need countless citizens or organizations making frivolous, unwarranted charges that the state’s judges conducted themselves without ethics from time to time.
However, men and women who serve on the bench should be subject to the same public cross-examinations as any other elected official – particularly if the positions they hold have become greatly politicized.
If they keep their noses clean they should have nothing to worry about.
Proposals to make it easier for the public to file ethics complaints against judges were quickly stamped out by eight Republicans on the Alabama Supreme Court. The lone dissenting vote came from Chief Justice Sue Bell Cobb, the only Democrat on the state’s highest court. It is disappointing that an overwhelming number of justices prefer to give their comrades immunity to ethical challenges. It is also disappointing that the Supreme Court voting in this manner was perfectly split along party lines.
Republicans want one thing. The Democrat wants another. Don’t think for a second that politics doesn’t play a hand in the courtrooms of Alabama. The scales of justice should be non-partisan.
Cobb asked the court to replace current rules for making public complaints, which she believes are discouraging to the public.
“Why would the highest court in Alabama make it more difficult to discipline an unethical judge?” Cobb asked.
She’s right, and it makes no sense.
Current rules for complaints are to include the name of the person filing the complaint, what the complaint is and what evidence they possess. Cobb contends those rules “engender a fear of retribution” toward persons complaining against a judge.
The public deserves equal treatment. Judges deserve the same – nothing more. We have been blessed in Lee County with some of the finest judges in the state and have a strong track record of continuity and respect in the courtroom to prove it.
Though today’s judges have such a demanding caseload, decreasing financial support and could face increasing challenges from the private sector, it is imperative that they are screened for their impartiality and conduct themselves in the ethical manner that they campaign in this election season.
We are facing tight and difficult times.
The demand for ethics in Alabama’s courtrooms should be at an all-time high.
Those who have nothing to fear should stand behind Cobb’s proposal.
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Several states look to boost retirement age for judges
Marcia Coyle, National Law Journal
April 13, 2010
As Justice John Paul Stevens is so ably about to prove, "90" may be the new "70," at least for judges, and state lawmakers are taking note.
Stevens announced last week that he would retire when the current Supreme Court term ends. He will turn 90 on April 20. If Stevens were a state Supreme Court justice, he would not have had the option of choosing when to retire because most states require those judges to step down after age 70, according to the National Center for State Courts in a recent study. But nine states this year have legislation pending that would either eliminate or raise the retirement age.
The Center noted that 20 states require retirement at age 70; four at 72; two at 74, and six at 75. Vermont is the only state with a mandatory retirement age of 90 for a state Supreme Court justice.
If applied to the U.S. Supreme Court, those states' retirement rules would force from the bench not only Justice Stevens, but also Justices Antonin Scalia, Anthony Kennedy, Ruth Bader Ginsburg, and Stephen Breyer.
In 2009, the Center reported, Kansas increased the age at which their justices must retire from 70 to 75, and South Dakota's House of Representatives also approved an increase from 70 to 75.
The nine states that have recently considered or are considering legislation to increase or eliminate mandatory retirement ages for state judges are: Alabama (from 70 to 72); Arizona (70 to 75); Massachusetts (70 to 76); New Hampshire (70 to none); New Jersey (70 to 75); New York (70 to none); Virginia (70 to 73); Washington (75 to none), and Wyoming (70 to none).
Justice Stevens' career, of course, is not the trigger for the action in the state legislatures. William Raftery, a court research analyst at the Center first noted what could be an emerging trend back in February.
Raftery suggested that the states have begun to reexamine mandatory retirement rules as the Baby Boom generation ages, life expectancies increase, and more veteran and able judges are forced into retirement.
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Law School Grads Face Tougher Economic Times
By Jessica Rettig, U.S. News & World Report
April 15, 2010
When Viraj Parmar graduated with a political science degree from Furman University in 2006, law school seemed like the logical next step. He wasn't seduced by the potential for a sky-high income or the allure of courtroom drama. Rather, he assumed that as a lawyer he could address the public-interest issues that resonated with him: human rights and the environment.
But now, $140,000 in school-related debt later, the Vermont Law School graduate worries that public-interest work may not pay enough. While the recession spurred layoffs and hiring freezes throughout the legal industry, law school tuition kept skyrocketing. For students like Parmar, the gap between reality and expectations may now be greater than ever: Jobs are no longer a sure thing, and loans are harder to pay back. Although the job market is improving, experts caution that law school hopefuls need to carefully weigh the costs and benefits of a law degree and, whether aiming for big law or Legal Aid, estimate their personal return on investment.
With tuition at an all-time high, more and more lawyers worry about finding work that will enable them to repay their loans. The American Bar Association reports that from 2007 to 2008, average tuition rose 6 percent at private law schools, to $34,298, and 9 percent at in-state public schools, to $16,836. Add in living expenses and pricey books, and at least 80 percent of students now rely on student loans to fund their law education.
It may seem out of touch for law schools to be raising prices in a lousy economy, but it's a reflection of supply and demand. Indeed, an increasing number of people appear willing to take on six-figure debt to get a law degree. In 2009, the number of people who took the Law School Admission Test hit a decade high, up 6.4 percent from the year before. "As long as people keep applying to law schools in record numbers, (a) there's no incentive at all for the universities to charge less for the law schools that are already established, and (b) there's every incentive for other universities to open new law schools," says Elie Mystal, editor of the popular legal blog Above the Law.
The good news for incoming students is that job prospects are improving. Carolyn Lamm, president of the ABA and a partner at White & Case, says the legal industry is showing signs of a turnaround. Big firms are beginning to hire again and are bringing back associates whom they had previously hired and then deferred when the market went south. "It's not as dead as it was in late '08 and early '09," Lamm says. "Things are moving forward."
Return on investment. While Secretary of Education Arne Duncan has complained that some schools of education serve as university "cash cows" that help subsidize other school departments, some, like Mystal, think the same could be said of law schools. But Claudio Grossman, dean of the Washington College of Law at American University, says law schools are integral to universities apart from the money that they bring in. At many universities, he says, law students often pursue joint or dual degrees in fields like business or international affairs, contributing to research in other subjects.
Tuition raises have become necessary at many universities, especially top ones competing for higher rankings, according to the Government Accountability Office. The heated competition induces schools to ramp up their programs by hiring better faculty, reducing class sizes, providing enhanced student services, and offering more practical coursework.
Expanded programs increase budgets, and tuition revenue must make up most of the difference, says Christopher Edley, dean and professor at University of California–Berkeley School of Law. With recent losses in private universities' endowments, reduced state funding at the public level, and fundraising difficulties across the board, law students now take on a much greater financial burden than before. Edley says that although tuition is rising swiftly at public law schools—especially in states where public funding has been gradually reduced—students are still willing to incur extra costs for a better education. "[Provided] we demonstrate that the tuition hikes are improving the experience in very apparent ways, from construction to faculty to research, they're generally quite supportive and excited about our progress," he says.
Students themselves are critical in establishing manageable debt levels. Many do not research the real economic costs and benefits of a law degree, says Prof. Herwig Schlunk of Vanderbilt University. "It's kind of blindly accepted that education in general, and legal education in particular, is always worth the money," says Schlunk. "[But] there's a lot of kids who do go to law school who really have no business, at least not as an investment matter, in going."
Being realistic about your career path is step No. 1. Success stories from the industry's glory days tend to fuel law students' assumptions that they will be able to get a high-paying job, says David Stern, CEO of Equal Justice Works, a nonprofit organization that promotes careers in public interest law. "In their mind's eye, [law students are] thinking of hitting the lottery and getting one of these $160,000-a-year jobs, and it is a fiction," he says. "By and large, it's just like the lottery. You're spending a huge amount of money in the hopes of hitting the jackpot, and there's relatively small chances, and the chances have gotten a lot smaller."
Students, nevertheless, can better their odds. Getting the best jobs still means keeping a high class rank and networking. Trial-based coursework and externships that put students in real-life legal situations will enhance a student's résumé and may enable close contact with potential employers, says Janet Stearns, dean of students at the University of Miami School of Law. Attending bar meetings can also help get a foot in the door, she says.
Keep in mind that although the supply of high-paying and high-prestige jobs may vary, demand for legal services is still great. Low-income areas across the nation continue to be underserved by the legal community, Stern says. Many people are unable or unwilling to pay for legal help. Corporate clients increasingly opt for a flat fee—rather than paying by the industry's notorious billable hour—or they will settle for paralegal services where they had hired associates, he says. Graduates who can afford it may want to take a lower-paying legal position now so they'll have the advantage of experience when applying for a higher-salaried job after the economy picks up.
Now that some students are finding a law degree is not as immediately marketable as they had hoped, they may benefit from focusing on building nonlegal skills, such as Web producing or social media networking. Laura Bergus, a second-year law student at the University of Iowa and blogger for Social Media Law Student, got her first summer law job after an employer commented on one of her online posts. "Following blogs and commenting on blogs is a huge piece of this puzzle," she says. "That's how you showcase what makes you an individual that the firm you're interested in should hire."
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Volunteer Lawyers program
by Renee Kirby, WKRG-TV (Mobile)
April 7, 2010
MOBILE, AL - On April 7th the Young Lawyers Section of the Alabama State Bar held phon-a-thons across the state to recruit volunteers for Alabama’s four Volunteer Lawyers Programs. WKRG hosted the Mobile area event.
The Young Lawyers Section coordinates charitable activities and provides continuing education for attorneys under the age of 35. During the April 7th phon-a-thon, the Mobile group recruited 55 young lawyers to assist the VLP in providing free legal assistance in certain civil matters to low-income Alabama residents.
The Mobile Bar Association Volunteer Lawyers Program gives special thanks to this outstanding collaboration between the Mobile Young Lawyers and WKRG.
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State Bar president urges lawyers to give back
Brian Kennedy, Daily Mountain Eagle (Jasper)
Apr 05, 2010
When Tom Methvin was still pondering where to place his emphasis during a yearlong tenure as president of the Alabama State Bar Association, he was inspired by a series of sentences he had recited what seemed to be a million times — the Pledge of Allegiance.
“A pledge is a promise, and our national pledge ends with the words ‘with justice for all.’ Unfortunately, that is not always the case, especially in Alabama,” said Methvin, who moved into the leadership position of the ASBA last July. “There are people who can’t gain the legal representation of a lawyer because they cannot afford it, which is an injustice.”
Methvin, who visited members of the Walker County Bar Association last week, indicated that his efforts to provide “access to justice for the poor in civil cases” grew from his realization that lawyers are often the only people capable of opening the doorway for people’s rights.
Methvin pointed out, however, that access is critically challenged within Alabama, which is at the bottom of the list for funds available for legal services for the poor in civil cases.
“We are often at the bottom of lists comparing states, but in this area we are even surpassed by Puerto Rico. The average state has $1.4 million in available funding, while Alabama has $300,000,” he said. “This is in a state where we have approximately 1 million people living in poverty, and we are enduring an economic situation that is pushing so many more into that category.”
While the Administrative Office of the Courts and state Supreme Court Chief Justice Sue Bell Cobb are making a concerted effort to increase funding in this area, Methvin was urging local attorneys to join in the statewide Volunteer Lawyer Program. The initiative asks lawyers to take up to two civil cases within their specialty per year at no charge. The Legal Services Division of the Montgomery-based ASBA pre-qualifies clients who meet the poverty level requirements and then matches them with volunteer lawyers.
According to Methvin, who is a managing partner at the Montgomery-based law firm of Beasley Allen, almost 1,000 attorneys across the state have joined the volunteer program. In Walker County, only 20 of the 116 attorneys — 17 percent — are participants in the program.
“A part of my visit is to issue a call to action,” Methvin said. “Our firm, which I would consider to be a rather busy firm, has 100 percent participation. We would like to see more lawyers in Walker County join the volunteer program.
“The typical civil case requires only about five hours, and the overwhelming majority of the participating lawyers say it is some of the most rewarding work they do,” he added.
Jasper attorney Greg Williams, who is serving as the current president of the Walker County Bar Association, said he has been a participating member of the volunteer program for the past decade.
“I can assure you that participation is not going to bankrupt your firm,” Williams said. “I’ve been in the program for 10 years and have only had one case. You choose the area you feel comfortable with and you aren’t going to be overloaded.”
Robert Richardson, a Jasper-based attorney who also participates in the volunteer program, agreed that the initiative provides access to the justice system that would not be available any other way for some people.
“I’ve handled mostly divorce cases through the program, and I would like to express my appreciation to our judges for their cooperation in occasionally approving the waiver of filing fees when needed,” he said. “There are times when clients who cannot afford a lawyer also cannot afford to pay the fee to get their case in the system. That, equally, denies them access to justice.”
Methvin commended the local Bar Association for its past efforts in pro bono activities conducted by the ASBA and urged area attorneys to consider joining the Volunteer Lawyer Program.
“As lawyers, we do a lot of good things for people,” he said. “In light of our situation in this state, participating in a program like this is just the right thing to do.”
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Groups offer free walk-in legal clinics
By Cosby Woodruff, The Montgomery Advertiser
April 2, 2010
The Montgomery County Bar Association's Volunteer Lawyers Program and the Montgomery Community Action Agency will be holding free walk-in legal clinics, the groups announced.
The clinics will be from 3 to 6 p.m. the first Tuesday of each month at the Head Start Educational Building, 1100 Adams Ave. in Montgomery.
Lawyers will be available to answer questions from low-income residents about family law, debt, rental issues, wills and domestic violence.
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Paseur making run for office
By Mike Goens, Decatur Times Daily
April 5, 2010
Former Lauderdale County District Judge Deborah Bell Paseur is making another run for a state appeals court judgeship.
Paseur has qualified for a seat on the Alabama Court of Civil Appeals and will oppose Republican incumbent Tommy Bryan. Paseur is running as a Democrat.
Neither faces opposition during the June 1 party primaries.
"My career in public service was extremely rewarding to me, and I felt that I made a difference for the people in my community," Paseur said. "I want to continue to make a difference for Alabama by serving in this manner. I would consider it a great honor to have that opportunity."
This will be Paseur's third statewide run for office. In 2006, she was defeated by Samuel Henry Welch in a civil appeals race. Two years later, Paseur came up just short in a Supreme Court race against Republican Greg Shaw. The margin of victory was less than 13,000 votes in a race that attracted about 2.02 million votes.
"Seats on the appellate courts of Alabama are incredibly important to the people," Paseur said. "It is very important for the people to have a choice. My experiences on the trial bench and working with the people have prepared me to offer my services in this manner. I think I can make a significant contribution."
Paseur is touting her experience of more than 27 years as a district judge as a significant difference between her and Bryan. She was elected five times by Lauderdale County residents, including the last four without opposition. She retired in April 2008.
Paseur was the first woman attorney and judge in Lauderdale County, and no one has served as a judge in the county longer. She continues to practice law in Florence.
"Every election cycle is different and there are different factors that influence the outcomes," she said. "I've always believed my duty has been to work hard to make people feel like they will be treated fairly and that they are on a level playing field. Then you make a decision based on the facts and the law. It should have nothing to do with politics."
Republicans dominate the appeals courts in Alabama, including the Supreme Court. The 10 people who make up the courts of civil and criminal appeals are Republicans. The only sitting Democrat is Supreme Court Chief Judge Sue Bell Cobb.
"Judicial elections should not have anything to do with partisanship," Paseur said. "People in my community don't define me by party but for the job I did as a judge for my county. People are tired of partisanship, and I offer fairness, knowledge of the law and the experience of working with people in the community."
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Mess with a law school clinic? Prepare for a fight – [Editorial]
St. Louis Post-Dispatch
April 5, 2010
An old story line resurfaced in The New York Times recently: Powerful interests are pushing back against law school clinics that cater to low-income clients.
The focus was on a lawsuit filed by the University of Maryland’s law clinic against poultry giant Perdue, a major Maryland employer. The lawsuit alleges that Perdue’s suppliers have been polluting the Chesapeake Bay with chicken manure.
State lawmakers responded with legislation that would cut clinic funding unless the clinic provided details about its clients and cases — information usually protected by attorney-client confidentiality. [Update: Annapolis lawmakers will not withhold any funds from the University of Maryland's law clinic for pursuing an unpopular environmental lawsuit, quieting a debate about academic freedom that raged in the state legislature last week. The law clinic still will be asked to turn over information about its clients for the last two years and its outside funding sources.]
Law school clinics have been dealing with similar challenges for decades. Law professors at the University of Mississippi faced firing for pursuing civil rights litigation in the 1960s. Since then, various powerful entities have tried to throw their weight around in response to the inconvenience caused by student-staffed law clinics.
Now, many clinics are under siege. In Louisiana, lawmakers want to prohibit clinics from suing the state. In Michigan, a prosecutor tried to call law students to testify against a client in a criminal case. In New Jersey, a strip-mall developer has sued for a clinic’s records.
They complain, wrongly, that the clinics aren’t accountable. Clinics follow the same rules, including those prohibiting frivolous filings, that apply to counsel in all cases.
Critics could be irritated because law clinics create accountability for public agencies and private interests accustomed to getting their own way.
The clinics work in behalf of poor people, often with legal aid and other non-profit organizations. Powerful entities that don’t win in court resort to trying to cut funding at public universities and narrowing the rules allow law students to provide supervised legal representation.
The law schools at Washington University and St. Louis University have outstanding clinical programs with a long tradition of students helping to represent low-income clients in divorce, domestic violence, consumer and juvenile law cases. They defend the accused in criminal cases, represent people who have been wrongly denied public benefits and fight violations of environmental protection laws.
Defending poor or unpopular clients is a vital part of legal education. That St. Louis’ legal clinics have pursued such cases largely without intimidation may be a testament to how professionally the clinics are managed or a function of university officials standing tall.
Would-be bullies should be forewarned: Meddle with law school clinics in this community, and you’ll have a fight on your hands. Lawyers here would not stand for that.
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Buy Your Own Judge
by Adam Skaggs, The New Republic
April 6, 2010
If you're worried about what 'Citizens United' will do to congressional races, just wait until you see what it does to the justice system.
Illinois is home to the nation's costliest judicial election ever: the 2004 contest between Lloyd Karmeier and Gordon Maag. The two candidates in Illinois's fifth judicial district together raised almost $9.4 million, nearly double the previous national record. It topped the money raised in 18 of 34 U.S. Senate races decided that year. Even Karmeier, the winner of the race, described the money poured into the campaign as "obscene."
The eye-popping fundraising resulted from a parade of special interests on both sides of the "tort wars." The fifth district had been known for large damage awards against corporate interests, and the election's winner was expected to play a crucial role on a closely divided Illinois supreme court. Trial lawyers funneled millions to Maag, while Karmeier got buckets of cash from the U.S. Chamber of Commerce. Karmeier also got a boost from a company with a very real interest in the race's outcome: State Farm Insurance Company, which happened to be appealing a damage award of more than $450 million. Karmeier got $350,000 in contributions from employees, lawyers, and others directly involved with State Farm and another $1 million from larger groups affiliated with the company. After he won the election, Karmeier cast the deciding vote that saved State Farm roughly a half-billion dollars.
The Illinois election wasn't an anomaly. In the last decade, state judicial elections across the country have evolved from quiet, civil contests into extravagant affairs with exorbitant spending, mud-slinging, and bitter personal attacks. Special interests in particular have helped engineer many of these races, pouring money into campaign coffers and negative TV ads. For instance, in a 2006 race in Washington — the most expensive judicial election that state had ever seen — every TV spot was paid for by a special interest group. As an Ohio AFL-CIO official put it, "We figured out a long time ago that it's easier to elect seven judges than to elect one hundred and thirty-two legislators."
And now, the problem is likely to get a lot worse. Much has been made about how Citizens United v. Federal Election Commission (FEC), the recent Supreme Court decision that lifted the ban on corporate spending in elections, will allow special interests to dump money into presidential and congressional races as never before. But the decision was handed down, in the words of Justice John Paul Stevens, just "when concerns about the conduct of judicial elections have reached a fever pitch." Indeed, thanks to Citizens United, the likely explosion of special-interest spending in this year's judicial races threatens to further erode the judiciary's independence.
This year, candidates in 18 states will face off to fill 34 supreme court seats. More than 30 other high court judges will sit for unopposed "retention" elections, in which voters will vote "yes or no" to keep them on the bench. And, because of Citizens United, many legal observers are expecting that these elections will be special-interest spending frenzies. Retired Supreme Court Justice Sandra Day O'Connor said at a conference at Georgetown University Law Center in January that "Citizens United has signaled that the problem of campaign contributions in judicial elections might get considerably worse and quite soon."
Early comprehensive campaign finance numbers for this year's state judicial races aren't available yet, but there are a few key races to keep an eye on. In Illinois, Chief Justice Thomas R. Fitzgerald is vying to keep his seat after alienating the business community in early February by striking down a 2005 law that capped awards for certain medical malpractice claims. The same interests that pumped millions into Karmeier's 2004 campaign are sure to pull out their checkbooks to defeat the chief justice.
Or consider Alabama, where state supreme court candidates raised over $40 million in the last decade — the most in the country and nearly double that of the state with the next highest total. Four years ago, candidates running for chief justice there set a state record by raising $8.2 million, largely from business and lawyer groups. This year, three seats currently held by Republicans are up for grabs, including one held by Justice Tom Parker. Groups like the Business Council of Alabama (which spent $4.6 million on judicial races in the last decade) and the Lawsuit Reform PAC ($1.3 million) are expected to invest heavily in Parker because they hope that, unlike his three Democratic challengers, he'll be a reliable conservative vote on economic issues. These groups will face off against the plaintiffs’ bar and other more liberal groups that usually funnel their money through the state Democratic Party (which spent $5.4 million on judicial races from 2000-2009).
The obvious question here is whether special-interest spending sways judges once they're presiding over cases. Three in every four Americans believe the answer is yes, according to a 2001 poll by Greenberg Quinlan Rosner Research. More importantly, even judges believe there is a connection: Of over 2,000 state judges polled in a 2002 Greenberg Quinlan survey, nearly half said campaign contributions influence judges’ decision-making.
Ohio provides a good case study. Four years ago, Justice Paul Pfiefer, who is one of three state justices up for reelection in 2010, said that every dollar spent by business and consumer special interests in judicial elections was "buying a vote." A 2006 New York Times study suggests he may be right. The study found that, over a twelve-year period, Ohio justices (including Pfiefer) routinely sat on cases after having received campaign contributions from the parties involved. And, in those cases, the judges voted in favor of their contributors in seven cases out of ten. One justice voted for his contributors 91 percent of the time.
And then, there's Nevada, where a 2006 investigation by the Los Angeles Times revealed that even judges running unopposed collected hundreds of thousands of dollars in contributions from litigants, "frequently" dated "within days of when a judge took action in the contributor's case." In the case of one judge who raised $70,000 from 140 attorneys and law firms, all of these donors who gave at least $500 had a case pending before her. Public concerns about Nevada’s court races prompted the legislature to put a referendum on the ballot this coming November that will ask the public to scrap contested judicial elections entirely and instead adopt a system of appointments.
Given recent history, it's not surprising that the public is concerned that justice is for sale to the highest bidder. A February 2009 USA Today/Gallup Poll found that 89 percent of those surveyed believe the influence of campaign contributions on judges’ rulings is a problem. More than 90 percent said a judge should not hear a case if it involves an individual or group that contributed to the judge's election campaign. And Citizens United will likely only exacerbate these worries.
So what's to be done? First, states should adopt public financing systems for judicial elections (something West Virginia, North Carolina, New Mexico, and Wisconsin have already done). Public financing gets judges out of the unseemly business of dialing for dollars to make sure they win. States also need to adopt stricter disclosure rules, so the public knows which individuals and groups are spending in judicial campaigns. And states should institute new disqualification regulations to ensure that, if a judge is assigned to hear the case of a major campaign supporter, he or she must step aside and let a wholly impartial judge preside.
Enacting these rules would help protect the principle of impartiality that is so critical to our court system — and that Citizens United has seriously jeopardized. Unlike legislators and executive officials, who are expected to act in accordance with the interests of their constituents, judges don't "represent" anyone; they are answerable to the law, not to special interests that can cut the biggest campaign checks. The very legitimacy of the courts depends on the public believing that judges will treat every party without bias or favor. If, in the Citizens United era, states don’t adopt public financing and strong disclosure and disqualification rules, the judiciary's credibility will dissolve -- and quickly.
