Governor announces plan for ethics reform
Dianne Stallings, Ruidoso News ( New Mexico)
12/26/2006
Last week, Gov. Bill Richardson announced a comprehensive ethics reform package for the state that includes the establishment of an independent ethics commission, limitations on gifts and campaign contributions and public financing for judicial candidates.
"New Mexicans expect a government that's honest and honorable," Richardson said. "Holding the highest ethical standards is our responsibility as public servants. It's also the best, and only way, we can protect the public's faith in their democracy."
In May of 2006, Richardson formed an ethics reform task force to conduct a bi-partisan review of ethics and campaign finance in New Mexico. Led by University of New Mexico Law Dean Suellyn Scarnecchia and former governor Garrey Carruthers, task force members put together a series of recommendations.
Based on those recommendations and his own priorities, Richardson proposed an ethics reform package that he will seek to pass during the upcoming legislative session.
The key points include:
Establish an independent ethics commission. This commission would provide independent oversight of the executive and legislative branches and all state employees. It would receive and investigate complaints by concerned citizens and whistle blowers.
The commission would also have strong powers to investigate and discipline, including the ability to fine, censure and reprimand public officials, state employees, lobbyists, contractors and officials.
Set limits on gifts. The governor proposed that no state official, employee or candidate, be allowed to receive a gift greater than $250. During the legislative session there would be a ban on gifts greater than $100. There would be criminal penalties for those who break the law.
Set campaign contribution limits. The governor proposes that statewide races match the federal level of $2,100 per individual, per election. His package will also recommend $1,050 limits for PRC and District races, and a ban on cash of more than $100 from one person.
"Clean Elections" public financing. The governor's ethics reform package proposes a phased approach toward public financing beginning with judicial elections, based on the successful Public Regulatory Commission campaign system. Using the PRC model, candidates in contested judicial elections could choose to run as a "Clean Elections" candidate. These candidates would qualify for public financing if they meet a threshold based upon the number of $5 contributions they receive from individuals. If the opposition opts out of the public system and spends more than public funding provides, "Clean Elections" candidates would be given matching funds.
Better campaign reporting. The package calls for more detailed reporting of campaign finances, more frequent reporting in non-election years and cumulative totals of campaign contributions by each individual to each candidate.
Amend the Governmental Conduct Act. The amendments will help prevent public officials and employees from abusing public office. These amendments will expand coverage of the Governmental Conduct Act to include all public servants, including judges.
"This is not an issue that affects the few," Richardson said. "Every citizen benefits from a government that is open, transparent and accountable. And every citizen is harmed by one that is not."
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Exodus of state's legal-aid lawyers is forecast
By Michael Higgins, The Chicago Tribune
December 27, 2006
Forty-two percent of the state's legal aid lawyers plan to leave their jobs in the next three years, which would further strain the state's legal services for the poor, legal-aid groups say in a recently released report.
Many of the lawyers feel pressure to find higher-paying jobs, saying legal aid salaries have not kept pace with the rising cost of law school, according to a survey and report issued last month by the Chicago Bar Foundation Association and Illinois Coalition for Equal Justice.
"If you look at law school tuition and debt, it keeps rising each year. But after about 2000, it just goes up dramatically," said Joseph Dailing, executive director of the Illinois Coalition for Equal Justice. "You need to provide a living wage and also help these people with these debts."
The legal-aid groups hope the report sounds an alarm that will be heeded by the federal Legal Services Corp., state government, private donors and others who help pay for legal aid.
The state's 280 full-time legal-aid attorneys already are stretched thin, trying to advise low-income clients in landlord-tenant cases, disputes over the denial of government benefits and other civil matters, the report said.
Legal aid attorneys typically start at $38,500 a year, the report found. But they must repay typical law school debts of about $60,000, and as much as $100,000 for more recent graduates, the report said.
Even committed legal-aid lawyers feel the strain, said Zenaida Alonzo, staff attorney for Chicago Coalition for the Homeless.
Alonzo graduated from the University of Notre Dame's Law School in 2004 and began working at the coalition on a two-year fellowship that paid $37,500 a year.
Although financial aid and scholarships had helped pay her tuition, Alonzo still had debts from her living expenses while in school. "It's always a struggle," Alonzo said. "Sometimes I feel like I'm living paycheck to paycheck. ... You definitely prioritize what you want and what you can't live without."
Alonzo, who lives with a roommate and doesn't own a car, said she plans to stay in legal aid. "I'm single," Alonzo said. "I don't have a family and I love my job, so it balances out for me."
The report found that among lawyers who joined the profession since 2000 and were their families' sole earner, 73 percent planned to leave in the next three years.
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Report: Lawyers' support is sparse - N.C. near bottom in U.S. in providing free legal services
By Titan Barksdale, WINSTON SALEM JOURNAL
Sunday, December 31, 2006
North Carolina ranks near the bottom nationally in its financing for providers of free legal services, which are meant to help poor people with civil cases, according to a report published by the North Carolina Bar Association.
Ranking 42nd in the country, North Carolina is "significantly behind its southern neighbors," the report says. The report lays some of the blame on in-state lawyers because of their lack of financing to legal-service providers.
"Lawyers in our state are not doing an adequate job of supporting legal-services programs with our money," says the report, which was published recently.
The legal community nationwide contributes about $1.60 per indigent person to legal services each year. In contrast, North Carolina's legal community contributes about 25 cents per person.
The report says that researchers viewed the names of lawyers offering pro bono work from lists maintained by legal-service providers statewide. Pro bono is a Latin term used to describe legal work donated for the public good.
An assessment of those lists from legal-services providers shows that about 29 percent of lawyers are members of the state bar association. That figure has remained largely the same since 1996, the report says.
In Forsyth County, the Legal Aid Society of Northwest North Carolina Inc., Legal Aid of North Carolina, and the Children's Law Center of Central North Carolina are the primary legal-service providers. The Legal Aid Society and the law center are nonprofit organizations, and depend on grants and contributions to remain functioning.
Staff attorneys with the Legal Aid Society often represent women at hearings who are asking for protective orders in domestic-violence cases. The legal representation enhances the safety of the women, according to the Legal Aid Society's Web site.
Additionally, the Legal Aid Society recommends placement for children in high-conflict custody proceedings, provides volunteer lawyers to draft living wills for elderly clients, and represents immigrants in consumer-law matters and other civil cases, the Web site says.
Michelle Reingold, the executive director of the Legal Aid Society, said that Forsyth County lawyers have provided some support through volunteerism and financing. The Young Lawyers Division of the Forsyth County Bar Association created the Legal Aid Society in 1962.
" Forsyth County attorneys are wonderful in giving their time for pro bono work," Reingold said. "They have always done a first-rate job in offering their services. As for funding, there is a generous group of attorneys, but everybody is asking for money and it's hard to give to everyone who needs something."
Reingold said she spends most of her days writing grant proposals for the Legal Aid Society, which is a nonprofit corporation. Contributions from charitable organizations and private donors also help to support Legal Aid, she said.
The report includes some goals to try to increase support.
The goals propose creating a statewide Legal Aid fund, publicizing the pro bono and public-service contributions of lawyers, and working with local bar associations to increase the number of lawyers who are listed to provide pro bono work.
District Court Judge Chester Davis, the president of the Forsyth County Bar Association, acknowledged the need to support legal-service providers locally and across the state. He said that in May, the Forsyth association held a fundraiser that took in $5,000 to $10,000 for the Legal Aid Society.
It can be difficult, however, for private lawyers in small firms to provide consistent support of legal services, said Tripp Greason, the pro bono director for Womble Carlyle Sandridge & Rice.
"It's very easy for folks to get insulated from the wider world," Greason said. "If you're working on these cutting edge, complex legal issues that affect one of your clients, then most of the time you don't get a chance to get out and see what's going on in the world. It's going to be a difficult move for you to stop, take a deep breath and call someone at Legal Aid or see if there's a pro bono project you can put together."
Greason said he believes that "it should be a priority" to increase the awareness of the need to support legal-services providers and to "increase the ease in which a lawyer can pick up a pro bono matter."
"The accepted truth in pro bono service is that only 20 percent of all the legal needs of those eligible to receive pro bono services are being met, and that leaves a number of people out in the cold."
Lawyer under ethics cloud takes oath
Montgomery Advertiser
December 24, 2006
A Jackson lawyer who was sanctioned by the Alabama State Bar has been sworn in early as a circuit judge despite lingering questions about whether he will actually be able to serve.
The state bar ordered that Stuart DuBose's law license be suspended because of his role in an estate in which he collected a $1.2 million fee for writing a client's will without ever meeting the dying man.
DuBose maintained that his actions were in line with common legal practices, but the Alabama Supreme Court ruled that the 45-day suspension wasn't sufficient punishment for his actions.
DuBose must now appear before a disciplinary committee which has the authority to impose a longer suspension or even disbar him if he is found guilty of violations of the code of professional conduct. It is unclear what any suspension would do to his ability to serve as a judge.
He will not officially take office until Jan. 15, but DuBose was sworn in Friday in a courthouse ceremony during which he acknowledged the troubles throughout his quest to be the judge serving Choctaw, Clarke and Washington counties.
"Each campaign is like placing yourself in a forge," he said. "You are beaten with a mallet until everything in you is scourged. This time, I've not only been beaten by a mallet to the point of being made into steel, but I may be a diamond in the rough."
Tony McLain, the bar's general counsel, said the panel's disciplinary committee is expected to review the case and a new hearing has not yet been held.
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High court becomes more media friendly
By MARK SHERMAN, Associated Press Writer
December 25, 2006
Many Supreme Court justices prize the anonymity that comes with their lifetime appointments and camera-free courtroom. Unrecognized, justices have snapped pictures for tourists in front of the court or been asked to move out of the way of a shot.
On rare occasion, a justice might consent to an interview on the C-SPAN cable network to discuss a recent book or be shown addressing a lawyers' gathering somewhere.
Lately, however, some members of the court have been popping up in unusual places — including network television news programs — and talking about more than just the law.
For an institution that has kept the media at a comfortable distance for much of its existence, the Supreme Court's increasingly public face is astonishing, said University of Chicago law professor Dennis Hutchinson, who served as a law clerk for Justices Byron White and William Douglas.
"More and more, the justices are spending time talking off the bench informally to reporters, on the record, off the record, in public, on tape, on film," Hutchinson said.
Justices Antonin Scalia and Stephen Breyer recently debated their competing views of the Constitution. Breyer and retired Justice Sandra Day O'Connor have talked publicly and repeatedly about threats to judicial independence. Justice Samuel Alito proudly affirmed his membership in the conservative Federalist Society, speaking in a packed ballroom at its recent convention.
Perhaps most noteworthy, though, has been the media-friendly attitude adoped by new Chief Justice John Roberts, in contrast to his predecessor William Rehnquist. Roberts recently was featured on ABC News' Nightline discussing both his view of the court and his son Jack's Spiderman imitation at Roberts' introduction by President Bush.
"Roberts is putting a smiley face in the center chair," said Hutchinson, who recalled earlier eras in which chief justices rigorously avoided the press and looked askance at their colleagues who consented to the rare interview.
Having spent more of his legal career as an advocate than as a judge, Roberts is at ease on a public stage. He has longstanding professional relationships with many in the court's veteran reporting corps.
For many years, justices held to the view that the court's mystique and reputation were enhanced by their distance from the public. The justices spoke through their written opinions, laying out not only what they had decided, but why.
Their unbending refusal to allow cameras in the courtroom has been part and parcel of this belief that the Supreme Court is unlike the Congress and the presidency in that it does not serve at the pleasure of voters.
Rehnquist could stroll around the court, unrecognized by tourists. Justice Anthony Kennedy snapped a photograph for visitors who had no idea who he was. Justice John Paul Stevens once was asked to move out of the way by a picture-taking tourist.
Now comes Roberts, who appears intent on allowing the public more of a look inside the court, although the prospect of televised court sessions still seems remote. He also heartily endorsed tighter ethics rules for judges, although those rules do not apply to the Supreme Court.
Douglas Kmiec, a Pepperdine law professor and Justice Department official in earlier Republican administrations, said Roberts' public relations effort is in line with his desire to have the court issue narrower, more consensual rulings.
"I think he feels a burden of explanation. The court has become so much the storm center of cultural controversy. Roberts is committed to not having that be so," Kmiec said. "If that's the case, it requires a certain amount of public explanation."
Stephen Wermiel, a law professor at American University, agreed that "the idea of more consensus brought about by narrower decision making enhances the public image of the court."
Yet Breyer and Scalia, for instance, have said they don't necessarily agree with the chief's call for greater consensus on the court. Scalia made clear he prefers bold rulings that serve as a guide for lower courts and lawyers, saying narrow rulings can be so constricted as to be useless
Another possibility, said University of Virginia law professor G. Edward White, is that the court will stay in the middle of national controversies and that Roberts believes its credibility will be enhanced if the justices appear less remote.
It may also be that the justices believe they can keep proponents of even greater openness, especially cameras in the courtroom, at bay.
At this early stage in his tenure, it is unclear just where the court is headed. With Roberts and Alito two new conservative faces on the court, high-profile cases involving abortion, race and the environment await decisions.
But by courting the media, the chief justice already has broken with his predecessors in one respect.
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Cobb: No parties in justice
Incoming Alabama chief justice seeks non-partisan races
By M.J. Ellington, The Decatur Daily
December 23, 2006
MONTGOMERY — Take $4.3 million here, another $1.6 million there, add them up and you’ll have one expensive 2006 race for chief justice of the Alabama Supreme Court.
Alabama’s highest court race in 2006 drew national attention because of its cost, expected to end up as the most expensive state judicial race in the country. Experts blame Alabama’s partisan judicial elections and lack of caps on political contributions by individuals and political action committees.
“If this is not a call for nonpartisan elections, I don’t know what is,” said incoming Chief Justice Sue Bell Cobb. In Alabama’s 2006 state chief justice race, Drayton Nabers, the Republican, was high spender, and Cobb, the Democrat, was the winner.
Historically, Cobb said, partisan races cost more because parties contribute more to candidates running under their banner.
Voters identify partisan judicial candidates with party positions,
something that Cobb said should not be a factor when a judge gets to the bench.
While the U.S. Supreme Court ruled that judicial candidates could state their own political beliefs during campaigns, Cobb said once a judge is on the bench, personal opinions should not matter.
“If you announce your position as a candidate, voters are thinking they will vote that way because you will decide cases that way in court. That is not the case or should not be.” said Cobb, who served 25 years as a judge in state district and appellate courts.
“Judges should make decisions based on law,” she added.
Cobb, 50, said as the only Democrat on the state criminal appeals court during the past six years, she and her Republican colleagues worked together on decisions based on law and the canons, or rules, of judicial ethics.
“It is a violation of the canons of judicial ethics not to do so,” she said.
Changing elections
Former Chief Justice Gorman Houston, a member of the Alabama State Bar group studying court elections, said he supported nonpartisan elections beginning in 1988. Judges and bar association members widely support some change in the way the state elects its judges, he added.
“Generally, you have the businesses on one side and the trial lawyers on one side,” said Houston, who ran as a Democrat in most of his races but as a Republican the last race.
“I really and truly think what we are working toward is a level playing field. I definitely think something needs to be done about judges elections on an appellate court level.”
Cobb proposes that Alabama choose its judges using a combination of merit appointment to fill vacancies and nonpartisan elections when the seats are up for regular election.
The proposal is a hybrid of the pure merit selection process in use in some states and the nonpartisan elections used by some others. Alabama is one of seven states with partisan elections.
Cobb’s proposal
In Cobb’s proposal, appointees chosen by a merit selection system that establishes credentials would fill vacancies that occur when a judge leaves the bench before the end of a term.
Appointed judges interested in election to their seats would run in a nonpartisan election for a full term.
Several metropolitan areas, including Birmingham, use a merit appointment system for vacancies now, said Cobb who was first an appointed and then an elected judge.
Groups including the Alabama State Bar Association, state judges and others are seeking a plan they can all agree on and present to the Legislature.
For now the groups are only in the discussion stage, Cobb said.
Cobb concedes that Alabama is not likely to stop political party influence entirely, especially from third party or 529 groups organized to distribute political contributions.
But she thinks a nonpartisan system would be a move in the right direction.
Judicial elections in states with nonpartisan races cost less, she said.
Final costs for state elections will not be in until January when candidates file their yearly contribution and expense reports with the state.
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Judicial Elections: Free the judges [Editorial]
Seattle Post Intelligencer
December 27, 2006
One of the most intriguing items in Gov. Chris Gregoire's proposed budget is $4.4 million to publicly finance judicial elections.
"Judges should be impartial. In order to protect judicial independence," the governor recommends funding this as a pilot project, "so that the election of judges can be free from money influence -- real or perceived. By protecting judicial independence, we protect the public trust in the justice system."
We think it makes a lot of sense for judges to get out of the fundraising business. Unlike other political offices, judges can't tell voters what they will do when elected. A 2002 study by the American Bar Association found that judges are "uncomfortable soliciting contributions, which may discourage outstanding judicial candidates from seeking or remaining in judicial office."
And the more judges campaign, the more the public perceive them as political creatures instead of an independent judiciary, the ABA said.
The ABA study also said no state had fully funded a judicial campaign, which brings us back to the governor's budget. The governor's plan should be seen as a first step toward public financing of judicial elections. We don't think it goes nearly far enough, basically exchanging a candidate's agreement for a clean campaign code for matching state money. We'd rather see judges get a set amount of money -- and have them out of the fundraising business altogether. But we also recognize that perfect is the enemy of the good. Gregoire's proposal is a good first step.
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COURTS NEED WATCHDOG
BY RONALD D. ROTUNDA, THE WASHINGTON POST
December 24, 2006
WASHINGTON - - The Judicial Transparency and Ethics Enhancement Act of 2006, now before Congress, would create an inspector general for the courts. It offers modest reforms that would keep our judiciary independent (because no one favors a dependent judiciary) and help keep it accountable (because no one favors a judiciary that is above the law).
Nonetheless, there are those who greet it the way Dracula would greet a bouquet of garlic. Justice Ruth Bader Ginsburg, for example, has said of the proposal: “That’s a really scary idea.”
On the contrary, this bill would strengthen judicial independence because it would give people greater faith that if there were problems, the inspector general for the courts would deal with them and not sweep them under the rug. An inspector general would also protect judges from frivolous or false charges.
WHY ARE COURTS EXEMPT?
There are already 57 inspectors general for other organs of government — for the Justice Department, Iraq reconstruction and so forth. The House of Representatives has imposed an inspector general on itself. Indeed, one wonders why it has taken so long to create one for the courts.
Giving an IG the power to audit federal judicial expenditures, to recommend changes in laws or regulations governing the judicial branch, and to investigate fraud, waste and abuse, is a modest reform that would not dislodge the heavens. That’s why the House Judiciary Committee recently voted in favor of this bill by a bipartisan majority, 20-6.
After I testified in favor of the legislation in June, I received many supporting letters. Federal judge John Kane wrote: “I’ve been a district judge for 29 years and think the federal judicial house has brought this legislation on itself.” He sat on the 10th Circuit Judicial Council when the first complaint about a judge came up for consideration: A district judge was trying to coerce counsel into establishing a library on product liability cases in honor of the judge.
Kane’s e-mail is worth quoting at length. He voted for discipline. The vote was 3-3, “and so the Chief Judge voted against sustaining the complaint because it was the first such complaint and he thought a close vote was too slender a reed upon which to proceed. As we were leaving the meeting, one of the judges who had voted to dismiss collared me and said, ‘John, think about it. The next time it could be you or me. We’ve got to stick together.’ ”
Kane added: “I’ve recently heard of a number of judges who ruled on cases involving companies in which they owned an interest, yet nothing was done about it. The point is that the current system is a ‘kiss your sister’ operation that hasn’t worked and won’t as long as judges are covering one another’s butts. The present system is ineffectual and I think that could be demonstrated by the very sorry record.”
Other judges may not favor these conclusions, but they do not dispute the facts. Justice Stephen Breyer’s commission on judicial discipline recently reported that the judiciary failed to conduct a proper investigation of judicial misconduct in five of 17 “high visibility cases” between 2001 and 2005. This error rate, the report admitted, is “far too high.”
We can do better.
The discipline process is conducted largely in secret. The proposed bill would give us sunlight, the best disinfectant.
NO INTERFERENCE
As for the independence of the judiciary, the proposed bill provides that the chief justice would appoint, and could remove, the inspector general. Federal judges already have lifetime tenure and salary protection. Giving them an inspector general whom the chief justice appoints and removes would not interfere with their independence.
Opponents of this bill say the sky is falling. But there are no cracks in the sky. Instead, there is a real need for change.
Ronald D. Rotunda is university professor and a professor of law at George Mason University.
Keep judicial system free from influences [Op-ed]
By Jay Cook
Atlanta Journal-Constitution, 12/20/06
This election season, threats to judicial independence rippled through ballot boxes across America. But the voters spoke loud and clear: We do not want partisan and special-interest factions interfering with our impartial courts.
In Georgia, special-interest money did not prevail after producing "one of the most negative judicial campaigns in American history," according to a national news report.
In South Dakota, voters soundly defeated the "JAIL 4 Judges" initiative. Only 10 percent of voters backed the measure that would have stripped judicial immunity and established an unaccountable fourth branch of government to intimidate judges.
In Colorado, voters defeated Amendment 40, which sought to impose four-year term limits for Supreme Court justices and appellate judges. If the amendment had passed, five of the state's seven high-court justices would have been removed from the bench within the next two years.
But this is no time to rest on our laurels.
According to news reports, these same special-interest groups (trying to convince some of our own state legislators) are hoping to get around the voters by adding two justices to Georgia's seven-seat Supreme Court. Because the state constitution allows "up to nine justices," they can legally stack the court without voter consent.
Sounds to me like having failed to get their candidates approved by the voters in the last two Supreme Court elections, they're looking for new ways to pack our courts with their partial pals. Sounds to me like they're looking to tamper with judicial independence. Sounds to me like they're looking to discount democracy.
The elections affirmed what we already knew. Georgians believe in the sanctity of the constitution and impartial courts. In a statewide poll conducted last year by the State Bar of Georgia, nine out of 10 respondents strongly agreed with the following statements:
*Everyone should have access to equal justice under our court system.
*Judges should be impartial and free from political interference.
*No one should be above the law, and the courts should make that possible.
Apparently, what voters want doesn't matter. At least that's the message they're sending: "If you don't vote the way we want, we'll find other ways to put our judges on the bench. If the judges you elect don't rule the way we want, we'll find other ways to intimidate them."
Was the last congressional election cycle not a referendum on the culture of corruption?
Shannon Goessling, executive director of the Southeastern Legal Foundation, claims that her group was asked by "legislative leadership" to look into ways of "revamping" our court. It's hard to imagine any legislator would do such a thing. The Safety and Prosperity Coalition also has pledged support for these and other court-maiming measures.
Looks to me like they're not going away. But neither are we. Not as long as America's promise remains "justice for all," not "justice for sale."
Jay Cook, an Athens attorney, is president of the State Bar of Georgia.
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Ga. lawmakers mull expansion of state Supreme Court
GREG BLUESTEIN, Associated Press
December 19, 2006
ATLANTA - Stung by defeats of conservative judicial candidates in the last two elections, Republican lawmakers could consider transforming the way Georgia's highest court is run.
The Southeastern Legal Foundation said it was asked by legislative leaders to review several changes to the state's judicial branch, including whether to add two justices to the seven-member Supreme Court. The change would require only a majority vote of the Legislature because the state's constitution already allows as many as nine members on the high court.
House Speaker Glenn Richardson said Tuesday the Legislature would review the proposal if it ever arises.
"If it would assist our courts and their caseload, then I think we ought to look at it carefully," he said. "I'm just going to let the case be made."
Although the GOP has gained control of Georgia's legislative branch and most executive offices, efforts to oust sitting Supreme Court justices and replace them with more conservative jurists have so far failed.
In 2004, Republicans backed Grant Brantley's bid to dump Justice Leah Ward Sears from the bench and Gov. Sonny Perdue taped messages for his campaign. Voters weren't swayed. Sears defeated Brantley, 62 percent to 38 percent, to claim another six-year term.
This year, Republicans rallied behind Michael Wiggins in his bid to oust Justice Carol Hunstein from the court. Wiggins labeled Hunstein an activist judge and openly campaigned with Republican candidates for office in the final days of the race, but he only earned 37 percent of the vote.
Supporters of the Supreme Court expansion say it's not a political retaliation, but a response to Georgia's growing population. Shannon Goessling, the foundation's executive director, said adding two justices would help the Supreme Court manage its growing caseload, which she said has exploded along with the state's population.
The main reason for the court's caseload - which court officials say is among the nation's heaviest - is that the court does not have the power to pick and choose its cases, but instead must weigh each case filed to the court within two of the three terms it holds each year, court spokesman Rick Diguette said.
But the court's caseload has fluctuated only modestly over the past 15 years, flattening out in recent years after reaching a high of 2,119 filings in 1997, according to records kept by Diguette. Since then, the court's caseload has hovered below 2,000. The 2005 total is 1,949 filings. It includes each petition, appeal and attorney discipline filing submitted to the court.
Similarly, number of opinions issued by the court each year has varied only slightly in the past decade. In 1996, the court handed down 404 opinions, but since then the number has topped 400 only once. That was in 1999 when 402 opinions were issued. The 2005 total was 398 opinions.
Early signs show that Republicans are reluctant to take up the issue.
State Rep. Wendell Willard, R-Alpharetta, chairs the House Civil Judiciary Committee which would likely handle any change to the judicial system. He said he sees no problem with the current system.
"I'm slow to make any changes to our court system," he said. "I'm thinking what they're proposing may be knee-jerk reactions."
The Senate's president pro tempore, Eric Johnson, also tried to pour cold water on the idea.
"I'm open to considering it," he said, "but I don't see support for radical changes in the judiciary."
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Scalia Argues for Better Judicial Pay
By MATTHEW BARAKAT, Associated Press Writer
December 13, 2006
McLEAN, Va. -- The federal judiciary will increasingly fail to attract the best-qualified lawyers if judges' pay doesn't improve, Supreme Court Justice Antonin Scalia said Wednesday.
"If you become a federal judge in the Southern District of New York ( Manhattan), you can't raise a family on what the salary is," Scalia said during a speech to the Northern Virginia Technology Council.
Federal judges earned salaries of $165,200 in 2006. Scalia said lawyers can easily earn significantly more by staying in the private sector.
The result, Scalia said, is that the judiciary will increasingly appeal only to those who have made a career out of public-sector work.
"More and more, we cannot attract the really bright lawyers. It's too much of a sacrifice," he said.
Scalia spent most of his speech advocating a theory of constitutional interpretation called originalism, which seeks to discern the meaning of the Constitution as envisioned by the Founding Fathers.
He mocked those who interpret the Constitution as a living document that has evolved over time.
He referred to the Supreme Court's jurisprudence on the death penalty, which has cited "evolving standards of decency" to ban the death penalty for juveniles and the mentally retarded as cruel and unusual punishment.
"I have no idea what the standards of decency are out there. I'm afraid to ask," Scalia said.
Justice Stephen Breyer has publicly articulated a more liberal interpretation of Constitution, saying that seeking to interpret sometimes vague wording through the eyes of the Founding Fathers can be impossible.
"If we're going to decide all these things from history, let's have nine historians and not nine judges," Breyer said earlier this month in a joint forum with Scalia.
Scalia acknowledged Wednesday that it's not always simple to divine original intent, but he said any other theory leaves judges unleashed to interpret the Constitution however they see fit.
The result, he said, is a sort of "mini-Constitutional convention" during every Supreme Court nomination in which interest groups seek nominees who will rewrite the Constitution to their standards.
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Web of confusion
Broward Business Review ( Florida)
December 14, 2006
By: Jordana Mishory and Harris Meyer
To Google or not to Google is the dilemma plaguing The Florida Bar in its protracted debate over how to regulate law firm Internet sites.
Because the Bar board of governors deadlocked on proposed new Web site rules at its monthly meeting last Friday in Key Biscayne, law firm sites could be completely unregulated as of Jan. 1 — unless the Florida Supreme Court takes action. The board tabled its discussion until next month.
The impasse reflects the legal community’s uncertainty and confusion about the brave new world of marketing to consumers via the Internet. Lawyers realize that instead of turning to the Yellow Pages, the public increasingly uses online search engines and other Internet tools to find needed goods and services.
The Florida Bar long has had some of the toughest rules in the nation on how lawyers advertise, and some of its leaders want to extend those stringent rules to Internet communications. But are law firm Web sites the same as direct mail, broadcast and print advertising? And should consumers be at least partly limited in what types of information they can access about a law firm when they do a specific Internet search?
The deadlock at Friday’s meeting seemed to reflect both a disagreement about basic policy as well as confusion about the technological aspects of implementing such rules.
On Friday morning, after a lengthy debate, the Bar board rejected a proposal to subject law firm Web sites to the Bar’s full advertising rules. Those rules prevent attorneys from offering statements on the quality of their legal services and past results, providing testimonials and offering “manipulative portrayals.”
Then, late Friday afternoon, the board narrowly rejected a revised proposal to subject only law firms’ home pages to the full advertising rules. The revised proposal would have allowed firms to provide testimonials and statements about quality and results on pages inside their Web site as “information on request.”
Under that proposal, consumers first would have to click through the home page to indicate their consent to receive the more detailed information. That information would still be subject to Bar rules prohibiting fraud, deceit, dishonesty and misrepresentation.
Miami attorney and board member Steven Chaykin urged approval of the revised proposal, arguing that the Bar had been considering the issue for four years and needed to finally make a decision.
But the proposal failed after Coral Gables personal injury attorney and board member Ervin Gonzalez recommended amending it to allow the public to directly access law firms’ inside pages through searches using Google and other search engines. He argued that when people do Internet searches — for instance searching for “ Miami” and “lawyer” and “greenfraud” — they essentially have consented to receiving the “information on request.”
In an interview, Gonzalez argued that “when you go to the dictionary to look up the meaning of the word red, it doesn’t tell you to go to the front of the book and ask the book to go back inside. If I look up red, I want the definition of red now.”
In addition, other board members argued that the board lacked sufficient technical information to make a decision Friday. Miami attorney Ben Kuehne said he wanted the Bar’s information technology experts to assure the board that it was feasible for law firms to easily and affordably construct their Web sites to block access to the inside information without a visitor’s specific request.
In an interview, Chaykin said the board wants to make sure that any requirements — such as requiring firms to install a firewall to halt regulated information from popping up on search engines — do not disadvantage smaller law firms. Chaykin advocates regulating Web sites like the Bar regulates advertising on other media.
“It is important for the dignity of the profession and for the protection of our present and prospective clients that all ads meet certain standards,” Chaykin said. “Web sites are now a powerful form of advertising and information, and should meet the same standards we apply to all other advertisements.”
But Gonzalez told the Daily Business Review that “limiting the access to the information needed to make an educated decision on one lawyer or another based on the lawyer’s experience and past results is like going back into the Stone Age.”
In addition, he said, limiting the information Florida lawyers can offer on their Web sites gives a big advantage to out-of-state attorneys who do not have to follow Florida rules.
Rule vacuum
In 1999, Florida became one of the first states to establish Web site rules for lawyers. Previously, the Bar applied its general advertising rules to the Web.
Currently, the Web sites of Florida Bar members can cite past results and make statements that characterize the quality of their legal services. Unlike lawyer advertisements, however, Web sites don’t have to be reviewed by the Bar.
But that was expected to change at the start of 2007, when new advertising regulations approved by the Supreme Court go into effect. The court adopted rules requiring lawyers to clear television and radio ads with the Bar 15 days before they hit the airwaves.
Previously, lawyers had to file their ads with the Bar before they ran, but the ads were allowed to run while the Bar reviewed them. Under that system, by the time the Bar board ruled that an ad violated the rules, it often was too late to do anything about it.
In addition, the new rules require out-of-state lawyers who advertise in Florida to follow The Florida Bar’s advertising rules. The Supreme Court did not issue an opinion on Web site rules because the Bar had a task force examining the subject.
But since the Bar board could not agree on the rules Friday, there could be no rules as of Jan. 1 unless the Supreme Court continues the current partial rules or develops new rules on its own, said Elizabeth Tarbert, ethics counsel for the Bar. The Bar has filed a motion for the high court to reconsider.
Florida Supreme Court spokesman Craig Waters said he does not know when the justices will rule.
Debated for years
The issue of Web site regulation has been debated by the Bar board for more than four years. An initial task force created to examine advertising rules recommended last year that Web sites be exempted from those rules on the grounds that Web sites provide information on request.
The Bar board rejected that recommendation because board members wanted Web sites to be more closely regulated. In the meantime, it recommended maintaining the status quo.
The board then created the Special Committee on Website Advertising Rules, headed by Daytona Beach attorney Chobee Ebbets, to examine the issue. In an interview, Ebbets said his committee recommended that Web sites be subjected to the general advertising rules, except that Web sites would not have to be reviewed by the Bar.
That recommendation was rejected by the Bar board Friday. The board also rejected a revised proposal, which would have fully regulated only home pages.
The revised proposal stated that “a lawyer or law firm Web site may contain information that would be considered information on request if the information is not accessible through a general Internet search but is only accessible by the view taking a specific affirmative action from a portion of the Website that complies with [the Bar’s full advertising rules].”
At the board meeting next month, an information technology expert will discuss the technological aspects of the issue.
In an interview, Miami criminal defense attorney and board member Dennis Kainen fretted about how the proposed new Web site rules would affect lawyers like himself in solo or small practices, who have simple, unsophisticated Web sites.
Currently, he said, he has a scholarly legal article he wrote posted on his site, which cites several of his own cases. If the full Bar advertising rules are adopted for Web sites, he would have to take the article down, or else place it on an inside page. He expressed uncertainty about how he would do that.
For the past year, the Bar has temporarily stopped disciplining attorneys who violate Web site rules because many lawyers were confused by what the rules said or were unaware of their existence, Tarbert said.
Many lawyers think “you can’t start regulating the Internet,” she said. “But we’ve been regulating the Internet for years.”
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Gregoire wants public financing of judicial campaigns
By David Postman, Seattle Times ( Washington)
December 19, 2006
Gov. Christine Gregoire proposed today a pilot program for public financing of judicial campaigns.
She wants to use $4.4 million so "judges can be free from money influence — real or perceived," according to material released by her office this morning. What the governor calls the "Judicial Independence Act," or JIA, is not yet in final form. But a memo from her policy office outlines how it would work:
To qualify for the JIA, candidates must raise a specific amount in qualifying contributions. Qualifying contributions must be between $10 and $50, and must come from individuals (not PACs, unions, or corporations). Contributors must designate the contribution as a qualifying contribution, and must submit name and address along with the contribution. Only campaign volunteers can collect qualifying contributions.
- Court of Appeals: Must raise at least $2,000 (and no more than $5,000) from at least 100 contributors.
- Supreme Court: Must raise at least $10,000 (and no more than $25,000) from at least 500 contributors.
There would also be public money available for exploratory campaigns.
Candidates would have to agree to a clean campaign code to get the money, though. That would include a prohibition on "disparaging or disrespectful communications." Candidates could respond to attacks from opponents.
The program would provide a minimum amount of public financing and then additional matching funds if an opponent who is not participating raises more than the minimum. The matching funds could also increase for a candidate if independent expenditures are used to favor another candidate.
The proposal is based on public financing programs similar to what is in place in Arizona, Maine and North Carolina, which has a specific public financing plan for judicial candidates.
Here's the explanation from the Arizona commissions FAQ page:
Question: How exactly does the Clean Elections Act work?
Answer: Candidates who choose to participate in Clean Elections (commonly called, participating candidates) collect a set number of $5 qualifying contributions (donations) that can qualify them for Clean Elections funding: Two-thirds of Clean Elections funding comes from surcharges on civil and criminal fees; the remainder comes from a voluntary $5 state income tax check-off, a dollar-for-dollar income tax credit for up to $500, civil penalties imposed on candidates for violation of the Commission rules & policies and the $5 qualifying contributions. To qualify for funding, participating candidates must adhere to strict spending and contribution limits and gather $5 qualifying contributions from registered voters in their districts.
During this year's campaign, Gregoire complained about what she said was special interest money pouring into campaigns for Supreme Court challengers. To counter that, she decided to raise money for incumbent justices. She solicited donations from political heavyweights and gave at least $25,000 from a PAC she controls.
In Arizona, there is a separate citizens group that monitors the Clean Election program. The group tracks which candidates participate in public financing and says that nine of 11 statewide offices, including governor, are held by Clean Election participants. There are also citizen groups in Maine and North Carolina.
In November, California voters defeated a ballot measure that would have created a similar system. In a story before the election, the San Francisco Chronicle looked at Arizona's experience and reported: “Six years into its brave new world of publicly financed campaigns, Arizona's "clean money" elections system already is creaking with signs of age.”
Ga. chief justice "horrified" by tone of Supreme Court race
The Associated Press, December 12, 2006
ATHENS, GA. - The state's top judge said Tuesday that she was "horrified" by the sharply negative tone of the recent campaign for the Georgia Supreme Court.
Chief Justice Leah Ward Sears added that she opposes the idea of adding two more justices to the seven-member state Supreme Court, an idea that is being pushed by a conservative legal group.
Speaking to reporters after an address to state lawmakers at the University of Georgia in Athens, Sears said the state's top court is able to handle its current caseload and hasn't even asked for a new law clerk. Each additional justice would cost about $2.1 million a year, when pensions and other fringe benefits are added in, she said.
"We do not have a caseload problem," Sears said. "Typically, if we have a need we make a request and we have not made that request."
Sears said she has had private conversations with state lawmakers and does not believe the justices will be added. She declined to identify the legislators. But Sears cautioned that she will not have the final say.
"I'm not in the Legislature. I'm not a soothsayer," she said.
Later Tuesday, Gov. Sonny Perdue said he has not formed an opinion yet whether additional justices are needed. But he took a jab at Sears' concerns over cost, noting that the judicial branch is requesting a budget increase of about 17 percent.
"I'm glad to hear she's concerned about cost and I hope she will go back and look at the judicial budget that has been submitted," he said.
The Southeastern Legal Foundation has said it will draft legislation to allow for two more justices on the Georgia Supreme Court. Critics say the group wants to stack the bench with conservatives.
Sears said she has become increasingly concerned about the partisan nature of judicial races, including her own re-election bid two years ago.
"We have got to keep the (political) parties out of the campaigns," Sears said. "These are not partisans."
The hard-fought race this year between Justice Carol Hunstein and challenger Michael Wiggins raised eyebrows as it turned into a slugfest. Wiggins labeled Hunstein an activist judge who legislated from the bench and Hunstein accused Wiggins of suing his own family members. Wiggins openly campaigned with the Republican candidates for office in the final days of the race. Hunstein won re-election with 63 percent of the vote.
Sears said she is convinced that Georgians do not want judicial candidates to behave like politicians.
"Judges are different," she said. "We are not better and we can stand for election and that's fine."
In the wake of the Hunstein-Wiggins race there have been calls for a ban on contributions to judges from lawyers with cases before the jurists.
Sears threw cold water on that idea, saying lawyers know the judges best and are often the only ones motivated to give to their campaigns.
But Sears said she could support limits on the amount of money political parties pour into judicial races. She conceded an outright ban could raise First Amendment issues.
Sears' re-election bid two years ago became a political battle as Gov. Sonny Perdue tried to help defeat her. She is the first woman chief justice in Georgia.
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Higher Hurdles Set in Corporate Crime Cases
Business Pressure Spurs Rules Change
By Carrie Johnson, Washington Post Staff
December 13, 2006
The Justice Department announced new rules yesterday that will make it harder for prosecutors to bring criminal charges against companies, bending to intense pressure from business groups that claim the government has overreached in its pursuit of financial malfeasance.
In presenting the revised rules, Deputy Attorney General Paul J. McNulty called the changes a substantial and direct response to a lobbying drive by the U.S. Chamber of Commerce, the National Association of Manufacturers and the National Association of Criminal Defense Lawyers, among others.
Since devastating bankruptcies at Enron and WorldCom prompted Congress to pass a stringent corporate accountability law four years ago, business interests increasingly have pushed back on efforts to police their operations, arguing that the government has imposed too many costs on companies with too few benefits for investors.
The new concessions focus on the sensitive issue of when prosecutors can force companies to waive their legal rights to protect e-mail messages and other internal communications, essentially instructing government lawyers that they must jump through additional hoops before winning access to information they desire. Previously, prosecutors could consider the failure to waive those rights in deciding whether to charge a company with a crime.
Under the revisions, prosecutors who seek information about suspected wrongdoing must first win approval from the top official in their home offices before asking a business to waive its attorney-client privilege. Government lawyers who want to review contacts between a company and its attorneys under a privilege waiver must go all the way to the Justice Department in Washington for permission from its second-highest-ranking official.
The issue carries profound implications for businesses that run afoul of the law. Indictments against companies, particularly financial services firms, can be a death knell, as with the obstruction of justice case four years ago against the accounting firm Arthur Andersen. As a result, former prosecutor Andrew Weissmann said, such moves should require formal consent by top Justice Department authorities.
Weissmann said the government follows a similar approach before sentencing individuals to death. "Corporations deserve the same oversight, since a corporate indictment can lead to similar dire consequences," he added.
The new rules also bar prosecutors from directing companies under investigation to stop paying employees' attorneys fees, a strategy that was declared unconstitutional last summer by a federal judge in New York who blasted the government, saying it "let its zeal get in the way of its judgment."
In practice, former government lawyer Timothy J. Coleman said, the changes likely will reduce the number of waiver requests by adding another layer of red tape, taking resources away from the investigation itself and directing often unwanted attention onto a rank-and-file prosecutor.
The revisions come just days after Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) introduced a bill that would force the Justice Department's hand. Lawmakers have held two hearings this year on the issue, spurred by a coalition of trade groups that yesterday assailed the new policy as "a day late and a dollar short," in the words of Frederick J. Krebs, president of the Association of Corporate Counsel.
At the same time, a handful of prosecutors in U.S. attorneys offices around the nation said they viewed the changes as a clear attempt to placate business interests that have been pushing back on rules in recent weeks.
The motivation among industry groups is in no small part a pocketbook issue. Waiving legal privileges to avoid criminal indictment can put scores of sensitive documents into the hands of plaintiff lawyers, driving up the costs of settling related shareholder lawsuits.
Last month, a report by a private committee, financed in part by an executive who is fighting civil charges and with support from Treasury Secretary Henry M. Paulson Jr., proposed indicting companies only as a "last resort" and requiring state officials to get permission from federal authorities in Washington before filing such charges.
In an interview, Deputy Attorney General McNulty rejected the notion that the concessions would cripple ongoing fraud investigations. "Our efforts to prosecute corporate crime will continue vigorously," he said.
In the short term, however, the revisions will buy Justice additional time before Congress takes up more far-reaching legislation proposed by Specter last week. Sen. Patrick J. Leahy (D-Vt.), who will lead the Judiciary panel come January, said the government had curtailed "its most excessive practices" but expressed reservations about how the changes would work over time.
The move carries potent symbolic value in a climate in which business has been emboldened in its efforts to return to a pre-Enron regulatory environment.
"The tide has turned," said Craig Margolis, a defense lawyer for a former executive at the audit firm KPMG, which waived its legal rights last year to help prosecutors build a case against more than a dozen former officials. "It should restore needed balance to the investigation of business entities and their employees."
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More Judges Packing Pistols in Courtrooms
By Amanda Bronstad, The National Law Journal
12-07-2006
Despite increased security at courthouses following shootings in Chicago and Atlanta about one year ago, many judges are bringing their own guns into their courtrooms for protection.
Earlier this month, a Florida judge was ordered to accept mentoring after warning a defense attorney that he was "locked and loaded." In May, a judicial ethics committee of the New York State Unified Court System found that it was ethical for a judge to carry a pistol into his courtroom.
In Nevada, Oklahoma and Texas, incidences of violence in the past year have prompted new laws or solidified rules allowing judges to bring guns into courtrooms.
"Judges in our courthouse have been carrying guns almost all the time," said Cynthia Stevens Kent, a Texas judge in the 114th District Court, where a man in a family law case killed his ex-wife and son last year on the steps of a Tyler courthouse.
"We feel strongly about providing adequate security, but it comes down to personal responsibility. And you've got to take responsibility for your own safety," Kent said.
Security concerns were raised last year after a rape suspect grabbed a deputy's gun and killed an Atlanta judge and others. One month earlier, a litigant had killed the husband and mother of a Chicago federal judge who ruled against him.
COVERING THE DOORWAY
Some states allow judges to arm themselves.
In June, a man shot the Nevada judge overseeing his divorce case through the window of his courtroom. Chuck Weller, a judge in the Nevada 2nd Judicial District Court in Reno, who survived the incident, said that judges in Nevada are allowed to carry weapons into the courtroom if they obtain permission from the chief judge.
He declined to say whether he keeps a gun in his courtroom, but noted, "I'm not opposed to it at all. The culture in the community I live accepts firearms."
The shooting prompted U.S. Senator Harry Reid, D-Nev., to introduce legislation to enhance security at both state and federal courthouses.
In another recent incident, Oklahoma District Judge P. Thomas Thornbrugh said he grabbed his gun from his chambers after he heard a loud slam against the wall and shouts for help. He said he knew deputies were taking a prisoner to a nearby bathroom.
"I thought the deputies were being overcome by this prisoner, and their service weapons would be taken," said Thornbrugh, recalling the Atlanta incident. "There were no other deputies around, so I got a pistol out of my desk and covered the doorway until the other deputies arrived."
The scuffle prompted the Oklahoma House of Representatives to pass a bill in March that would allow district judges to have guns in the courthouse. Current law is unclear.
The bill died before reaching the state Senate, but state Rep. Dan Sullivan, R-Tulsa, who introduced the bill, said he plans to try again next year.
In Texas, which permits state judges to carry concealed handguns into courtrooms, a new law became effective that expands that right to include federal judges and district attorneys. The law followed the Tyler shooting.
"We believe each judge should be able to make sure he has a system of self-defense," said Kent, who wears a shoulder harness and carries a gun at all times. "One of our biggest areas of target is when we're in the court making decisions."
FIGHTING GUN BANS
In May, New York's Advisory Committee on Judicial Ethics issued an opinion that found it ethical for a judge to carry a pistol while on the bench.
In Florida, where Bay County Judge Michael Hauversburk recently threatened a defense attorney with his handgun, state law permits concealed weapons. But a bill that died last year would have specifically allowed judges to bring concealed firearms into courtrooms. Similar bills were introduced and failed last year in North Carolina and Illinois.
On Jan. 1, Kansas plans to permit judges and whomever they designate to carry concealed firearms in the courtroom. Phillip Journey, the state senator who authored the bill and a practicing attorney, said he spent a decade seeking to overturn a blanket prohibition on firearms in the courthouse.
"If I had a judge's permission, I'd do it every day," he said of bringing a gun into the courtroom. "Guns are like lawyers: Better to have one and not need it than need one and not have it."
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State judge elections a disgrace [Editorial]
Bob Ingram, The Thomasville Times
December 7, 2006
I am not sure many Alabamians lie awake at night worrying about it, but the election of state court judges in this state has become a national disgrace.
The battle for control of the courts between the trial lawyers on one hand and big business on the other is now completely out of control. If not how can you explain that more money has been spent in judicial races in this state in the past decade than any state in the union? It is indeed disgraceful.
Now comes Chief Justice-elect Sue Bell Cobb with an idea which might well restore some sanity to judicial elections. It is not the plan backed by the Alabama State Bar which in effect would do away with the election of judges, but Cobb's plan would be a giant step forward.
First, she proposes that judicial elections be non-partisan...that the candidates not run as Democrat or Republican. That in itself is but a modest step in the right direction...you know full well that the voters would know which candidate was backed by the trial lawyers, which was backed by big business, whether than ran as a Democrat or Republican,
But Step Two in Judge Cobb's plan has merit. Once a judge has been elected in a non-partisan election, when his or her term expired they would run in what is called a "retention" election- the voters would simply decide whether the judge merited another term or should they be removed from office.
If the voters said the judge deserved another term then there no other election; if the voters said they should not be retained, than the nonpartisan election process would kick in again.
As I said, this is not the perfect solution to the problem, but it is a step in the right direction...
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Judicial election results spawn talk of reform by GOP
By Dave Williams, The Gwinnett Daily Post ( Georgia)
December 10, 2006
During the last two election cycles, Republicans have poured money into conservative candidates for the Georgia Supreme Court in a bid to “balance” a court populated by justices appointed by Democratic governors.
It hasn’t worked. In 2004, Justice Leah Sears rolled up 62 percent of the vote in defeating challenger Grant Brantley.
Then last month, Justice Carol Hunstein garnered 63 percent in her win over Mike Wiggins.
Although judicial elections in Georgia are officially non-partisan, those losses were frustrating for Republicans, particularly in the context of GOP victories in the other two branches of state government.
Four years ago, Sonny Perdue was elected Georgia’s first Republican governor since Reconstruction. Within a week, his monumental victory had led to a flurry of party switching that tipped the state Senate into the GOP column.
Republicans completed their takeover of the General Assembly by capturing a majority in the House in 2004.
That leaves only the courts in the hands of office holders who, according to GOP leaders, are out of step with the conservative tide that has swept over Georgia during this decade.
Not being able to rectify that situation at the ballot box, legislative Republican leaders are looking into ways of reforming judicial elections in Georgia.
Among the possibilities that have emerged is giving in to the reality of what judicial elections have become by allowing candidates to run with party labels. In a state that has become solidly Republican, GOP Supreme Court candidates presumably would have the edge.
Another idea that’s making the rounds is adding two more justices to the seven-member court.
That strategy harkens back to the 1930s, when President Franklin D. Roosevelt, a Democrat, tried and failed to “pack” the U.S. Supreme Court with additional justices. Roosevelt was upset with court decisions that were unfavorable to some of his New Deal policies enacted by Congress and was looking to create vacancies he could fill with justices who would give him a better shake.
“Our Constitution allows for up to nine judges,” said Eric Dial, president of the Safety & Prosperity Coalition, a group of business leaders that was a major financial backer of Wiggins’ campaign. “This is not a new idea. Our court has increased in size as our population has grown.”
Senate President Pro Tempore Eric Johnson, R-Savannah, was receptive to the idea of partisan judicial elections when he addressed the press last month shortly after Perdue won a second term as governor.
“I have no problem with putting a party label on judges,” Johnson said.
But neither idea is going over well with either Democrats or good government groups.
Although Democrats are in the minority in both the House and Senate, what they think about partisan judicial elections matters. Because such a change would require a constitutional amendment, Democrats have enough votes to deny it the two-thirds majority it would need to pass.
Bill Bozarth, executive director of Common Cause-Georgia, said switching to partisan elections would put more special interest money into judicial races than even the last two Supreme Court elections, which were the most expensive in the state’s history.
“That’s the wrong direction to go to address something we all believe should be looked at,” he said.
One reason that’s been given for expanding the court is to ease the justices’ workload.
But House Minority Leader DuBose Porter, D-Dublin, isn’t buying it. He dismissed the proposal as a blatant attempt to sway future decisions.
“The only reason to do this is to pack the court ... to manipulate rulings,” Porter said. “The people want an impartial judiciary.”
Groups including Common Cause are pushing a third reform that they argue would pull the plug on special interest influence in judicial elections.
A bill to be introduced during this winter’s session would provide public financing of judicial races, either through a checkoff on the state income tax form or possibly through a fee on lawyers.
Previous efforts to have taxpayers foot the bill for elections have been dismissed as “welfare for politicians” and haven’t taken hold in many states.
“I think public financing is a non-starter,” Dial said. “It’s a liberal idea, the kind of thing you see up in New England.”
But Bozarth said he believes voters are willing to hold judicial candidates to higher standards than those running for other offices because judges aren’t supposed to be politicians and shouldn’t be subject to the same influences.
“Would you rather have a modest public expenditure that wouldn’t really put much cost on taxpayers ... or a lot of special interest money electing these folks?” he said.
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State bar association to take its time on ad rules - Lawyers say changes hurt free speech
Arnessa M. Garrett, Acadiana Advertiser ( Louisiana)
December 11, 2006
The Louisiana State Bar Association will take a little more time to consider new rules for lawyer advertisements after a series of meetings around the state with lawyers.
Lawyers raised questions about whether the some of new rules would infringe on their freedom of speech, said state bar association president Marta-Ann Schnabel.
The bar has been working on changing the rules regarding advertising for several months. Among other things, the new rules would ban lawyers from making claims in ads regarding amounts of settlements won. They also would ban lawyers from using some testimonials in ads. One of the most controversial provisions of the proposal is the requirement that some ads be viewed by the state bar before their use.
Schnabel said the rules now are so general that almost anything is permitted. The new rules, she said, would give clearer boundaries to lawyers on what is acceptable.
"The reexamination after the public hearings is to be assured that the proposed rules actually do that as opposed to curbing constitutionally protected speech," said Schnabel.
The Louisiana bar based many of the changes on Florida's rules for lawyer advertising, she said, and that state recently has made some changes to its requirements.
Schnabel said the Louisiana bar wants to see what happens in Florida before it adopts certain rules.
The Louisiana Supreme Court must approve the rules before they go into effect. Initially, the bar's House of Delegates was to review the proposal in January to give a recommendation to the Supreme Court. Now, the House of Delegates will review the proposed rules in June, Schnabel said.
At the same time, a resolution by Sen. Rob Marionneaux, D-Livonia, requires the Supreme Court to report in March to the state Legislature on what it plans to do to clean up lawyer advertising. Schnabel said the proposal should be in sufficient form by March for the Supreme Court to give a report.
According to Frank Neuner, immediate past president of the state bar, the process of adopting new rules began before last year's hurricanes. The new rules are necessary for a number of reasons, he said.
"I think a lot of us are just tired of the kinds of ads that are unprofessional, that don't serve the public, and don't help the public make reasonable decisions on who to hire," Neuner said.
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Jury perfection never possible [Editorial]
The Montgomery Advertiser, December 14, 2006
Juries are not perfect; they never have been and never will be. And the first perfectly run criminal trial has yet to be conducted.
U.S. District Judge Mark Fuller recognized those truisms Wednesday when he refused to grant a new trial for former Gov. Don Siegelman and former HealthSouth chief executive Richard Scrushy.
Siegelman and Scrushy had claimed that juror misconduct violated their rights to a fair trial, claiming that some jurors communicated by e-mail and accessed outside materials about the trial on the Internet. But the judge rejected the defendants' claims that these actions justified a new trial, and even seemed to be defending the jury in his ruling.
Fuller wrote: "While it is true that certain members of this jury have been criticized for a lack of perfection regarding their service in this matter, there can be no question that this jury has sacrificed a great deal of their time and energy in the interest of justice. They have fulfilled their obligations to their country and to this court. For that, this court will be forever grateful."
While the jury's actions are troubling, the judge is probably right in ruling that the outcome of the trial was not affected by those actions.
But this does not mean that Siegelman and Scrushy are out of options. They already are appealing other aspects of the case, and can appeal Fuller's ruling this week once he sentences them.
Even if Siegelman and Scrushy lose all their appeals and motions, it could be months before either of them ever sees the inside of a cell. And that assumes prison time is part of their sentences.
However, this case does underscore the need for the criminal court system to address the potential negative impact of juror access to the Internet and e-mail.
At the very least, trial judges need to include specific instructions to jurors that they should never use the Internet or e-mail to access non-trial information about the case or to communicate with other jurors. The pervasiveness of cyber-communications also should cause judges in high profile cases to more readily consider sequestering jurors.
And potential jurors in other cases need to realize the possible harm they could cause by not heeding a judge's orders not to discuss a case outside the jury room, even by e-mail.
But that is something that the courts need to address for future trials, not this one. The U.S. Constitution guarantees Siegelman and Scrushy the right to a fair trial, not a perfect one.
Cobb seeks nonpartisan elections for state judges
By Tommy Stevenson, Tuscaloosa news.com
December 7, 2006
TUSCALOOSA | Newly-elected Alabama Chief Justice Sue Bell Cobb called on the Alabama Legislature Wednesday to find a way to hold non-partisan elections for the state’s appellate courts.
“The people have said they do not want partisan elections for the highest courts," Cobb said in her first address to the new Legislature at an orientation session at the University of Alabama law school. “But we can take a step in the right direction."
Fresh off a bruising and expensive campaign to become the first woman to hold the highest judicial office in Alabama, Cobb said her campaign against incumbent Drayton Nabers was the second most expensive judicial campaign in American history.
“And that is wrong," said Cobb, who said she spent nearly $4 million and Nabers more than $5 million leading up to the November 7 election. Cobb will be sworn into office in January.
Cobb, who is also the only Democrat among the state’s 19 appellate, Supreme Court and courts of criminal and civil appeal jurists, said such expenditures “cannot help but damage the image of the state."
She said Alabama is only one of seven states that pit Democrats and Republicans against each other in general elections for the states’ top judgeships.
She suggested that in the 2008 primaries, those appellate judges up for re-election be subject to a referendum on whether they should keep their jobs and if they get a majority they would not have to face fall opposition.
Should they fail to garner a majority vote, “they would be subject to a nonpartisan election in the fall" and in the future all open seats be contested in a non-partisan fashion, much as most municipal elections are.
Her suggestion did not come out of the blue, said Alabama House Speaker Seth Hammett, a Democrat.
“We’re going to discuss that among members of the Democratic caucus," said Hammett, who leads a 62-43 majority in the House. “But I understand the Republican Party is against it.
“But something has to be done to take the money and the politics out of running for judgeships because judges are supposed to be impartial and appear impartial."
Cottondale Rep. Gerald Allen said he was one of those Republicans who is “definitely against non-partisan elections of any kind.
“Every individual who is elected has their own philosophy and ideology and the two parties tend to separate themselves along definite lines," he said. “I think party labels tell a lot about what a person thinks."
Although her proposal was the most provocative part of her address to the new Legislature at the three-day orientation session that ended Wednesday, Cobb spelled out other priorities.
In addition to chief justice, she will also head the Administrative Office of Courts, which oversees 143 circuit judges, 102 district judges and 2,243 employees of the court system in all 67 Alabama counties.
Getting the Legislature to restore funding for county clerks’ offices, which was lost several years ago in budget cuts, would be her “top priority," she said.
“The clerk’s office is where the rubber meets the road," she said. “There is no question they need more funding and more employees."
Cobb, who served 12 years on the criminal court of appeals before being elected chief justice, also said she would conduct an online survey of court employees and would like to establish a system of “exit polls" for people who have dealings in courthouses across the state.
The online survey would be for people who have professional dealings with the courts, “to find out what we’re doing right, what we’re doing wrong and what we can do to do a better job."
She said she would like to have employees periodically poll those leaving courthouses to determine their opinions about how well they were served.
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Picking the right direction [Editorial]
The Birmingham News
November 26, 2006
THE ISSUE: Judicial selection is the better solution for the public perception that courts aren't independent or impartial.
The election for chief justice of Alabama was all about labels. And no, it wasn't simply Democrat Sue Bell Cobb vs. Republican Drayton Nabers Jr.
At its core, the chief justice's race pitted trial lawyer candidate Cobb vs. business candidate Nabers. Those special-interest groups fueled what appears to be the most expensive court race in America this year and the second most expensive in the nation's history, according to the Justice at Stake Campaign, a group that tracks spending in judicial elections.
Through mid-September, Cobb reported raising $1.9 million while Nabers had raised $4.4 million. Their final reports, which aren't due until the end of January, could reveal millions more collected and spent before Nov. 7.
It was a disheartening, dispiriting campaign that distorted two quality candidates into villainous caricatures.
Last Sunday, readers of The News learned of two possible solutions to such nasty elections. They read in the Local News section that Cobb plans to push for nonpartisan elections for judges. And they read in the Commentary section that Jefferson County Circuit Judge J. Scott Vowell has a better idea: merit selection of judges.
Cobb, while acknowledging nonpartisan elections won't fix all the problems, says they would "take the issue of party out of it." Alabama is one of just seven states with partisan elections for their highest court.
"I want us to have a method for selecting judges that improves the public's perception of independence and impartiality of the courts," Cobb said.
Cobb said she liked the idea of having incumbents stand for retention during the primary election in June. If voters want to keep the incumbent, he would get another term. If voters want to dump the incumbent, there would be a nonpartisan race on the general election ballot in November to elect a new judge.
But having judicial candidates run without party labels doesn't solve the perception problem. That's because party labels don't create that problem. Instead, it's the special-interest money fueling judicial races. Business interests and trial lawyers will continue to dump millions into court races, even if candidates have no "R" or "D" next to their names.
The problem, as Vowell noted, is the public finds it hard to believe a judge will be as fair to the side that doesn't fund him as he is to the one that does.
The best way to drain special-interest money from judicial elections is to do away with elections. Vowell pointed to a judicial commission in Jefferson County that could serve as a model for selecting judges based on merit.
When there's a judicial vacancy in Jefferson County, the commission investigates applicants for the judgeship, selects the best three candidates and submits names to the governor. The governor must appoint one to fill the unexpired term. The new judge serves until the next election, then has to run for office.
In a true merit selection system, that judge would be named to a full term. At the end of the term, voters would choose whether to retain or reject her.
Yes, politics plays a role in judicial appointments. Special interests can even spend money for or against a judge up for retention. But it's nothing like what we've got now with a system in which spending in three of the four Supreme Court races ranked in the top four in the country.
Nonpartisan elections are a step in the right direction. Merit selection is the right direction.
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Nevada judges can keep raising funds
The state's high court decides against one of several proposals to reform the judiciary
By Scott Gold, Los Angeles Times
December 7, 2006
CARSON CITY, NEV. — The Nevada Supreme Court has rejected a proposal to prohibit judges from personally soliciting or accepting campaign contributions.
In a hearing earlier this week, Chief Justice Robert E. Rose had called the measure a "serious proposal." But the court's seven justices ruled unanimously that the measure would impose an unconstitutional restriction on judges' right to free speech.
Most states have such restrictions on their books, and several state courts have upheld the measures.
But the justices noted that in recent years, two federal courts had found the measures to be unconstitutional. And they said that Washoe County District Judge Brent Adams, a leading voice in the reform campaign, had "not articulated a sufficient state interest to be protected" by the measure.
The decision was announced in court documents filed late Tuesday.
"The provision is still the law in virtually every state that elects judges, and we thought there was both ample legal authority and analysis to support it," Adams said.
"This would have been a simple, immediate, cost-free way to distance judges and the judiciary from money and thus enhance the independence and integrity of the judiciary. It will not be the law in Nevada. But it's still a good policy," he added.
Al DiCicco, a longtime Nevada court reform advocate who now lives in Arizona but follows the issue closely, said he was disappointed by the decision but not surprised.
"I thought it would have been a step in the right direction," he said. "But I've seen so many decisions made that were not helpful to the public. They want to perpetuate the system."
A recent Los Angeles Times investigation found the state's judiciary to be rife with problems, including judges who raised large sums from attorneys and corporations with cases pending before them.
The state Supreme Court signaled its intent this week to adopt other reform measures, including a proposal to cap the amount of money judges can keep after elections, one to allow parties in some civil cases to seek the removal of "senior judges," and one to make judges divulge when their former law clerks appear before them in court.
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National dollars find, defeat circuit judge - What happened in Cole County to Tom Brown represents a growing trend across the U.S.
By TIM HOOVER, The Kansas City Star
December 4, 2006
JEFFERSON CITY | If you’re irritated by a local judge’s decision on an issue dear to your heart, a national group opposed to “judicial activism” has a blueprint to ease your angst.
Just bankroll a campaign against that judge or a fellow jurist right before voters cast their ballots. The target doesn’t have a chance to rebut the allegations before the election, and bingo, the judge is bounced from the bench.
That’s exactly what happened last month to Cole County Circuit Judge Tom Brown.
Brown, a Democrat seeking his third six-year term, lost to a Republican challenger Nov. 7 after a media blitz against him right before the election.
A mysterious group called Citizens for Judicial Reform paid for the negative ad campaign.
Its only financial contribution, according to Missouri Ethics Commission reports, was $175,000 from Americans for Limited Government less than two weeks before the election. The Chicago-based limited government group “aims to make our nation’s judges accountable to both the rule of law and to the citizens whose rights they are sworn to uphold,” its Web site says. “Recent years have shown a flurry of power plays by unaccountable, activist judges.”
Justice at Stake, a Washington-based group that defends judicial independence, said the Brown race was a new twist in an ongoing assault on judges.
“Most of this sort of politics and big money from interest groups has been in the world of state Supreme Courts,” said Jesse Rutledge, a group spokesman. “It’s not common to see the interest groups pour this type of money into a local race.”
Cole County, home to Jefferson City, became the target of the campaign because it is the first stop for most cases involving state government or a challenge to state law. Decisions by Cole County judges on the constitutionality of state laws go directly to the Missouri Supreme Court.
Following the issues
To understand why Brown became a target, it helps to know the interests of Howard Rich, listed as chairman of Americans for Limited Government.
Rich, a New York real estate investor, has backed term limits for lawmakers and judges, limits on the government’s taking of private property, and state spending lids.
His group this year backed a ballot measure in Montana that would have allowed the recall of judges for any reason. The measure was pulled from the ballot after courts found pervasive fraud by signature gatherers.
In Colorado, the group backed term limits on judges. Voters defeated the measure, which would have applied retroactively, thereby unseating five of seven Supreme Court judges and seven of 19 appeals court judges.
In Missouri, a Rich-backed group called Missourians in Charge earlier this year spent more than $2 million trying to place measures on the ballot that would have limited state spending and the taking of private property for public use. Cole County Circuit Judge Richard Callahan upheld the secretary of state’s decision to bar the issues from the November ballot because of mistakes in the initiative petitions.
Callahan, a Democrat not up for re-election this year, saw the campaign against Brown as a message to all Cole County judges.
“It appears to be retaliation for some of the decisions regarding the proposed ballot issues,” Callahan said.
Senior Judge Byron Kinder said he’d never seen a judge’s race so expensive or nasty.
“This is a scalp they can wave around in people’s faces and say, ‘See? If you don’t get in line, this is what’s going to happen to you,’ ” Kinder said.
Brown’s Republican challenger, Jon Beetem, has said publicly that he didn’t have anything to do with the negative campaign. He was not available for comment. Rich did not return telephone calls or e-mails. Rachel Maxam, a spokeswoman for Americans for Limited Government, refused to comment.
As a federally registered tax-exempt organization, the group is not required by Missouri law to identify its donors.
Mike Clark of Jefferson City, listed as treasurer for Citizens for Judicial Reform, said little about his committee, formed Oct. 6.
“I was just asked to be the treasurer,” said Clark, a Department of Mental Health employee. “I was asked by a friend here in town. I cannot discuss it.”
‘Activist decisions’
The campaign against Brown involved TV and radio ads, as well as direct mail pieces. Some of the mail referred to Brown’s “activist decisions,” and Brown said the literature grossly misrepresented his rulings.
One mailing said: “If you’re lucky enough this Christmas, you may get invited to one of Judge Tom Brown’s lavish Christmas parties. Food, drink, even presents for each guest, all at taxpayer expense.”
Brown in 2004 asked Cole County commissioners to approve $600 in court funds for a courthouse employee Christmas party at his home to boost morale. Commissioners denied his request. But the mailer, with its illustration of a bow-tied man holding a tray full of drinks, left the impression Brown had been holding elegant soirees at taxpayer expense.
Brown, who raised $57,000 for his re-election, said so much opposition money pouring in during the final days of the campaign made it impossible to respond to the allegations. He lost 53 percent to 47 percent after winning his two previous terms with at least 59 percent of the vote.
“There’s no other explanation for how this vote turned out except this last-minute campaign,” Brown said.The opposition group deliberately filed campaign reports as late as possible to hide the campaign that was under way, he said.
Citizens for Judicial Reform filed a spending report with the Missouri Ethics Commission at 10 p.m. on Election Day that showed it paid Axiom Strategies, a Republican political consulting firm in Kansas City, $173,195 on Nov. 7. Missouri law requires that reports be filed within 48 hours of incurring expenses.
Jeff Roe, who leads the firm, declined to discuss who paid him to work on the campaign against Brown.
However, public comments Roe made in Kansas City on Nov. 13 shed light on the Brown race.
The recorded comments came while Roe sat on a panel sponsored by legal and business groups on the independence of the judiciary.
“There are large groups around the county that are in place to defeat judges,” Roe said.
Roe said those groups know that spending a significant amount of money in a local judge’s race is more cost-effective than spending perhaps $250,000 or more to oppose the retention of a statewide judge.
“If you place large sums of money quickly in a judicial race, you have the immediate impact,” Roe said.
At one point, he was asked about the Brown race.
“They (interest groups) want to influence public policy, and they see, maybe, risk with a certain judge,” he said. “I think some of these groups just want a scalp.”
Rachel Caufield, a researcher at the American Judicature Society, based at Drake University in Iowa, said the “attacks are not based on … whether the judges are following the law. They’re based entirely on ideological goals or political goals.”
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The High Cost Of Electioneering [Editorial]
The Lakeland ( Florida) Ledger
December 6, 2006
In Illinois, two candidates spent a combined $3 million in an effort to get elected. In Georgia, spending for the same type of office hit a new record of more than $1.1 million.
But these weren't congressional or gubernatorial races. Nor were they even common hotly contested legislative seats. They were for judgeships.
Big money from out-of-state special-interest groups have come to judicial politics. Those sleepy, low-profile elections aren't sleepy-and-low-profile any more.
The voters are worse off for it.
Battling with dollars for contested judicial offices has been a worrisome problem since the amount spent on the races began rising about six years ago. In 2002, spending records for state Supreme Court offices in Ohio and Illinois were broken, and the use of television ads for judicial elections - unheard of in previous decades - spread to twice as many states as in 2000.
"Americans depend on their courts to be the ultimate example of fairness and impartiality," said U.S. Sen. John McCain, R-Ariz., in pointing out the trend four years ago. "But special interests are spending millions to influence decisions and elect judges to serve their narrow interests, not the public interest."
Since McCain's observation in 2002, judicial races have become even more intense, and contested races have become more widespread.
In Washington, the Public Disclosure Commission was prompted this year to look at what other states are doing to limit special-interest money in judicial races. Three Supreme Court justices were returned to office, but not before going through what a Seattle Times editorial termed "a dirty battle of half-truths."
The Nevada Supreme Court last month announced the creation of a 28-member commission to study the state's judicial system, and the influence of money and special interests in judicial elections.
The results of these elections have already had an impact on the outcome of court decisions. In 2004, a $9 million battle between two candidates resulted in Lloyd Karmeier being elected to the Illinois Supreme Court. The court had been split over a case involving customers of State Farm insurance company who had won a class-action lawsuit against State Farm Automobile Insurance for its refusal to pay for quality replacement parts on damaged cars.
Karmeier, who was backed by the business community, decided the case in favor of State Farm. That resulted in the verdict being thrown out. He also voted to overturn a $10 billion fraud judgment against Philip Morris over the marketing of "light" cigarettes.
In March of this year, the U.S. Supreme Court refused to hear the appeal of the State Farm case overturning the $1 billion judgment. A dozen public-interest groups had urged the court to review the case, arguing that the high finances of judicial races "engender an appearance of corruption that critically threatens the very foundation of the courts and the rights of the litigants who appear in them."
Floridians fortunately have been spared having to watch television ads smearing incumbents or candidates for the Florida Supreme Court or judges on the state's five district courts of appeal. Unlike 38 states that elect Supreme Court judges, Florida has operated under a merit-retention system since the 1970s: Voters decide if they want to vote for or against retention of a sitting judge. If they don't, the judge is removed from office, and a judicial nominating commission meets to make recommendations to the governor for a replacement.
There is a reason the cost of campaigning for judicial office continues to go higher. Researchers looking at the 2003-2004 election cycle found 43 state supreme court races on the ballot. In more than four out of five races, the candidate who raised the most money won the election.
States that still cling to the election of judges for their higher courts should follow Florida's example of judicial retention. One state, North Carolina, has turned to public financing for judicial races. That system was set up after a judge named Henry Frye spent a record $907,000 in an unsuccessful re-election bid in 2000.
Big money is taking sides in judicial politics. Losing a race can be expensive, but the biggest loss yet is the public perception that justice's blindfold has been auctioned off.
