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Electing judges gives impression state has pay-to-play judicial system – [Op-ed]
The Birmingham News
June 21, 2009

Occasionally, I have been known to take issue with the positions taken by this newspaper's editorial board. Today, I must testify that the editorial board got it right.

As The News reported and commented on last week, the U.S. Supreme Court recently ruled that the acting chief justice of the only appellate court of West Virginia was wrong when he refused to recuse himself from a multimillion-dollar appeal involving his major campaign contributor.

For the first time, the Supreme Court found that contributions to judicial campaigns can lead to a judge having to step aside from ruling on a case concerning those campaign contributors due to concerns about the judge's ability to be fair and impartial in his or her decision-making process. While this result is cause for celebration by those who fight against the image of a judicial system influenced by campaign contributions, it is no quick fix for Alabama's broken, partisan judicial campaign system.

You see, we have a problem in our state. An Alabama statute already mandates recusal of a judge from cases involving campaign contributors whose donations exceed $2,000 for trial judges and $4,000 for appellate judges. Among other flaws, the statute does not cure the inability to trace those contribution dollars, which makes the law virtually ineffective. However, even this admittedly imperfect statute has not been enforced.

Confronting the problems in the statute has been avoided by the simple fact that its enforcement has been on hold pending the resolution of the 12-plus-year standoff between the Alabama attorney general's office and the U.S. Department of Justice as to whether preclearance of the statute is required under the Voting Rights Act.

To further compound the issue and despite this recent Supreme Court ruling, those who seek to influence the hand of justice in Alabama with enormous campaign contributions can still hide behind unlimited transfers between political action committees.

Those transfers permit vast sums of money to be funneled to judicial campaigns outside the $2,000/$4,000 limit, skirting the state law but no doubt violating the spirit of this new court ruling. Even worse, the out-of-state and third-party "issue" groups that pour money into our state lack sufficient transparency to allow the public to know who's really behind the ads they fund. "Pay no attention to the man behind the curtain" should be a theme of children's movies, not our state's judicial elections.

The elections of 2010 will be here before we know it. Campaigning for the next round of judicial elections will likely begin in a matter of days, if it hasn't already.

An estimated 99 benches around the state will potentially be in play in the 2010 elections, including three state Supreme Court seats. Regardless of whether you believe we should elect our judges, our current partisan system of electing judges gives the impression, at the very least, that justice is for sale in Alabama.

At a time where we desperately need judges who are viewed as and are, in fact, impartial decision-makers, more than 75 percent of the public believes that there is a correlation between campaign contributions and judicial decisions. Worse yet, more than 49 percent of the trial judges in this country share the same feeling. And one thing one can be assured of in a partisan judicial election -- it's expensive. In 2006, which was the last major election cycle here in Alabama, $17 million was spent on judicial campaigns in our state. Last year, more than $5 million was spent on the race for a single open Supreme Court seat. More and more money is poured into judicial elections with every election cycle, with no end in sight.

The reality is that judicial campaigns and the resulting judicial terms must avoid even the appearance of impropriety.

We must push our state Legislature to repeal the current ineffective and unenforced judicial campaign finance law and draft new legislation in light of the U.S. Supreme Court's decision. Our Legislature should also enact laws to shed light on murky PAC-to-PAC transfers. Better yet, the Legislature could ban PAC money from judicial races altogether. Action should also be taken to hold out-of-state entities, as well as third-party groups, accountable to report the sources of their monetary contributions.

The candidates themselves must also be held responsible for the content and tone of their individual campaigns. Removal of the negative personal attacks from our judicial campaigns will allow Alabamians to cast their votes based on experience, integrity, professional competence, judicial temperament and service. It will also permit candidates to campaign on their commitment to the law, rather than attempt to influence public opinion through mudslinging.

Blaming personal attacks on the advice of political consultants is unacceptable. The ethical compass must always point to the candidate. The candidates involved in the election process must take the lead in ethical and honest campaigning. The rest of us should expect and accept nothing less.

Our system of justice must not only appear to be just -- it must also be just in action. We must take action here in Alabama before we see the sorts of headlines seen in West Virginia.

The perception that Alabama has a "pay-to-play" judicial system must be tackled, and the impending 2010 judicial elections make time of the essence. Each of the 99 seats up for election is a reason for our Legislature to act.

The image of a morally bankrupt judiciary damages our state and our democracy at large, and must be confronted head-on. Justice is at stake, and there's no time to waste.

Birmingham lawyer J. Mark White is president of the Alabama Bar.
Helping Lawyers Help the Poor – Congress should free legal aid lawyers from burdensome restrictions – [Editorial]
The Washington Post
June 22, 2009

THE HOUSE was right last week to call for a substantial increase in funding for the Legal Services Corp. (LSC), the nonprofit organization that provides legal assistance to poor people in civil matters. But House members left in place unwise and unwarranted restrictions on how the LSC could use that money; senators considering the matter should lift those restrictions.

Created by Congress in 1974, the LSC's services have never been needed more. The organization provides grants to civil legal aid organizations that in turn help represent the poor -- and in these times, the newly poor -- who are struggling to survive the economic downturn. Many clients find themselves battling foreclosure or eviction or are forced to secure unemployment benefits or food stamps. The LSC also helps the indigent navigate a host of other legal thickets, including medical or insurance matters.

On Thursday the House approved a budget of $440 million for the LSC -- up $50 million from 2009 funding and $5 million more than the amount requested by the Obama administration. Lawmakers also lifted a restriction that kept legal aid lawyers who prevail in cases from recovering attorney's fees from the losing party -- a benefit available to winning lawyers in many civil rights or consumer protection cases. This move was important because those fees could be used to further supplement the LSC's budget.

The Senate, which is scheduled to take up the funding measure this week, should go even further in freeing legal aid lawyers from federal restrictions. The LSC has long been prohibited from using public funds to lodge class-action suits, represent undocumented workers or participate in any abortion-related litigation. While some limitations on the use of tax dollars may be warranted, there is no legitimate reason for federal restrictions on how local legal aid groups use privately raised funds or money they receive from state or local governments. The Obama administration, which supports the lifting of these restrictions, estimates that roughly $490 million in private and non-federal funds that find their way to local legal aid providers are "tied up" and subject to these federal limitations.
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Stage Set for Litigation Over Judicial Recusal - Big campaign cash can compromise litigants' due process rights -- but what about the First Amendment?
Amanda Bronstad, The National Law Journal
June 22, 2009

The U.S. Supreme Court's ruling in Caperton v. Massey has prompted the American Bar Association and several states to consider stricter rules to help elected judges decide whether to step down from cases due to conflicts of interest born of campaign contributions. The proposals, if adopted, could prompt lawsuits from campaign contributors who fear that the changes would discourage participation in judicial races in violation of the First Amendment.

The Supreme Court concluded on June 8 that Justice Brent Benjamin of the West Virginia Supreme Court of Appeals, the state's court of last resort, should have recused himself from a case because the petitioner's chief executive, Don Blankenship, had spent more than $3 million to support Benjamin's election to the court in 2004. Benjamin's failure to recuse himself violated the due process clause of the Fourteenth Amendment, according to the 5-4 decision.

Although the Supreme Court stressed that the facts of that case were unique, the ruling has emboldened reformers concerned about the appearance of bias in the courts. Lawyers on both sides of the recusal debate, however, anticipate constitutional challenges to any new rules. That's what happened following the Supreme Court's 2002 decision in Republican Party of Minnesota v. White, which found that a Minnesota judicial code section prohibiting candidates from announcing their views on legal and political issues violated the First Amendment.

"If anybody tries to draw a rule from this that is generally applicable, they're wrong," said James Bopp, a partner at Bopp, Coleson & Bostrom in Terre Haute, Ind., of the Supreme Court's recent decision. Bopp successfully argued the White case and at least a dozen subsequent lawsuits challenging state judicial rules prohibiting campaign speech. "They're distorting the court's decision. It would be challengeable."

Even supporters of the proposed rule changes concede that First Amendment considerations could complicate their efforts and toss the debate back to the courts.

"There are a lot of issues we need to examine here, and we have to always be sensitive to First Amendment issues," said William K. Weisenberg, chairman of the American Bar Association standing committee on judicial independence, which is finalizing draft recusal rules in light of Caperton. "We all recognize there may very well be future challenges. We expect more court cases to try to define what the Caperton case is about."

GUIDANCE IS NEEDED
Most states require recusal whenever a judge shows an appearance of impropriety or impartiality; only Alabama and Mississippi have identified campaign contributions as reasons to step down from a case. In light of Caperton, however, the ABA is taking a closer look at the role that contributions and independent expenditures play in determining whether a judge should step away from a case, Weisenberg said. "There's a lot of money being spent in judicial elections across the U.S.," he said. "What we need to examine is: What are the factors that give rise to a Caperton situation?"

Some states, particularly those where judicial races have attracted considerable cash from outside groups in recent years, might review their recusal rules of their own volition. In Wisconsin, for example, the existing recusal rules do not address campaign contributions, said James Alexander, executive director of the Wisconsin Judicial Commission.
"Obviously, this will force states to review how they look at recusal, especially in light of the campaign contributions and the issue of financial support given to candidates by third parties, whether independent expenditures or through third-party groups," Alexander said. "I would imagine that most states will review their rules to see if they can establish standards that would protect the impartiality and appearance of impartiality."

In Washington state, a task force appointed by the Washington Supreme Court has been considering new recusal rules that would cover campaign contributions. One proposal would designate twice the state's contribution limit, which was about $1,600 per election in 2008, as a benchmark for determining when a judge must decide whether to recuse from a case, said Charlie Wiggins, a partner at Wiggins & Masters in Bainbridge Island, Wash., who was involved in drafting the proposal. A second proposal would mandate recusal based on a much higher multiple of the contribution limit.
The rules need to provide clear guidance, he said. "What are parameters? How much money? What are the circumstances?" said Wiggins, who filed a brief in the recent Supreme Court case on behalf of more than two dozen current and former judges. "A prospective donor needs some guidance. How much can I give without putting this judge in a position where the judge will have to be removed from the case? From both sides of the equation, guidance is needed."

FIRST AMENDMENT CLAIM
Court challenges appear virtually guaranteed. "They all have a First Amendment claim," Bopp said. "And these proposals are light-years away from what the Constitution requires under the due process clause according to [ Caperton]. We're in the territory of people unjustly exploiting the decision for their own purposes."

Bopp, who filed a brief on behalf of the James Madison Center for Free Speech in Caperton, said that the Supreme Court's ruling provided too narrow a frame upon which to build to model recusal rules.

The case involved a confluence of factors, not the least of which was the $3 million in contributions -- an amount far beyond what most individual donors give in judicial races, Bopp said. The Supreme Court noted that Blankenship's contributions had a "significant and disproportionate influence" because, among other things, they were three times the amount spent by Benjamin's own campaign committee.

Contribution limits would hurt a judge's ability to effectively run a campaign, particularly if extended to independent expenditures, Bopp said. In Caperton, Blankenship had given the $1,000 maximum to Benjamin's campaign, plus $2.5 million to a political organization supporting Benjamin and $500,000 in independent expenditures.

Mike Wittenwyler, a professor at the University of Wisconsin Law School who teaches campaign finance and has represented third parties in judicial races, said that such rules would have a "chilling effect" on speech not unlike the judicial code addressed in White. "Say I'm a prominent labor union and trade association in any state, and I spend money on judicial campaigns," he said. "Now I'm concerned that active involvement could limit my involvement to have a judge hear my case. That's not unrealistic at all. There's a likelihood that'll happen at some point."

Drafting recusal rules based on specific contribution limits in light of Caperton might not solve the problem. In Alabama, where such rules already exist, outside groups have poured significant contributions into what have become the most expensive judicial races in the country, but these groups are not required to report their sources of funding during campaigns.
"If it prevents a small-business owner or an individual or a law firm from being able to contribute in a court race, but doesn't prevent Exxon Mobil from bundling money through third parties…that doesn't seem fair," said Joe Turnham, chairman of the Alabama Democratic Party, a frequent participant in the state's judicial races. "I'm looking for clarity as to what that means, and I think there's some First Amendment free speech issues rolled into being able to contribute."
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Help is nigh on the student loan front - A federal program will help public interest lawyers structure their repayments and eventually win debt forgiveness
Karen Sloan, The National Law Journal
June 22, 2009

Moaning about massive student debt is a time-honored tradition among law school graduates.

Some members of the class of 2009 will have less to complain about, however. A new federal program intended to help borrowers manage their student debt goes into effect on July 1. The legislation — called the College Cost Reduction & Access Act — will cap monthly loan payments according to income and forgive student debt balances after designated periods of time. For attorneys, the main beneficiaries will be those who go on to have long-term public interest careers. But the program will also make loan payments more affordable for all attorneys with high debt loads and relatively low incomes.

"There are a lot of things that are making it tough for new graduates, with the tight job market and the deferrals," said Heather Jarvis, a senior program manager at Equal Justice Works, an organization that encourages attorneys to undertake public interest law careers. "But there has never been a better time to graduate, as far as student loans."

The program will benefit law students in two key ways. Most prominent is loan forgiveness for public interest workers. After a borrower makes payments for 10 years on government-backed student loans, the government will forgive the remaining loan balance for those who qualify. The program guarantees loan forgiveness not only to lawyers who serve the public interest but also to a wide array of public service workers including teachers, law enforcement officers and certain health care professionals.

The loan forgiveness provision is intended to make it more affordable for college graduates to pursue public interest careers, which often come with lower salaries than in the private sector. Even with the recession, first-year associates at many major law firms are paid as much as $160,000; public interest attorneys can expect starting salaries of about $41,000, according to a survey last year by the National Association for Law Placement.

INCOME-BASED REPAYMENT

The second aspect of the new federal program that will benefit law graduates is the income-based repayment option, in which monthly loan payments are capped according to the borrower's annual income. Public interest attorneys must choose this repayment option to qualify for loan forgiveness, but graduates who don't go into public interest also may choose to participate. Under income-based repayment, monthly student loan payments are capped at 15% of the borrower's discretionary income. After the borrower makes qualifying payments for 25 years, the federal government will forgive any remaining loan debt.

There are several online calculators to help borrowers determine whether they qualify for the income-based repayment option. Most of those who do will have their student loan payments set at less than 10% of their annual income, according to The Institute for College Access & Success, a nonprofit group that seeks to make higher education more affordable. This option wouldn't make sense for graduates who take jobs at large firms paying upwards of $100,000, Jarvis said, but it might be right for the sizable segment of law school graduates who don't earn that kind of money.

"The reality is that most law graduates don't take those jobs and earn those salaries," she said. "A lot of people make $60,000 or $70,000 a year. At these salaries, they would qualify for the income-based repayment plan. Debt loads are getting so high that it's typical for someone to graduate from law school with $100,000 or more in debt. If you were going to stretch out paying your debt anyway, [income-based repayment] is a good option to consider."

Another benefit of the college cost reduction act is that the funding for its loan forgiveness provision is more reliable than similar state loan forgiveness programs geared toward teachers, health care workers and other specialty careers, said Haley Chitty, the director of communications at the National Association of Student Financial Aid Administrators (NASFFA). Legislators in cash-strapped states have begun looking to loan forgiveness programs for potential spending cuts, but the funding for the federal program will not be subject to the Congress' annual appropriations process, Chitty said.

When Congress passed the law in 2007, it decided to fund its programs by reducing the subsidies the federal government pays to private lenders in order to get them to loan money to college students. The money that in the past paid those lender subsidies will now pay for the federal loan assistance programs. Funding under the act is considered "nondiscretionary."

"These benefits are very secure, as far as students being able to count on the funding," Chitty said.

Although the new law will make student loan repayment more affordable for some law school graduates, financial aid administrators and advocates worry that the rules and qualifications are so complicated that borrowers may not get the information they need to decide whether the program will benefit them. "The program is complicated enough that it is difficult for students to understand on their own," Jarvis said. "As of right now, hardly anyone has a clue about this legislation, and in my mind it's the biggest thing to hit public service in a decade."

Borrowers can take advantage of the federal government's public service loan forgiveness only if they have the right type of job, the right type of loans and have made the right type of payments, so they need to know the rules, Jarvis said.

GETTING THE WORD OUT

Several organizations — including Equal Justice Works, NASFFA and The Institute for College Access & Success — have launched educational campaigns or Web sites to help students understand their loan-repayment options. Several law school administrators said they are trying to spread the word to students, but largely are relying on the expertise of outside organizations to help students understand the fine details of the program.

Northeastern University School of Law — which is know for its strong public interest program — held two sessions during the past academic year to familiarize students with the program, said financial aid director Linda Schoendorf. But the coaching isn't too detailed.

"We're giving them basic information. We don't go into the nitty-gritty," Schoendorf said. "We're referring them to the experts for that."

Jennifer Marsh is the type of student who likely would benefit from the program. She graduated from the University of North Carolina School of Law in May and hopes to land a job in public interest law. She's still vague about what, exactly, the federal program is offering, however. "We've been told that [the program] is starting, but I don't know that we've received very much information about the details," Marsh said.

Tam Ma, a 2L at the University of California, Berkeley School of Law and a member of the school's financial aid committee, has noticed a similar lack of understanding on her campus.

"I don't know that the information has really trickled out to students," Ma said. "The students who are really interested in it are going out and doing their own research."

Duke Law School held a workshop on the new federal program last semester and has been offering individual loan counseling for students, said Bill Hoye, associate dean of admissions and student affairs. Even though the new program will go into effect next month, Hoye and other law school administrators said that it's difficult to predict how many of their graduates will participate. "We just don't know right now," Hoye said. "It's so hard to predict because it's a new program. We're also seeing changes in the employment market, as far as the types of jobs people are taking."

One factor to consider is that there are fewer associate positions at large firms; this may lead more recent law school graduates to take jobs that come with lower salaries, which in turn could lead more borrowers to sign up for the income-based repayment option. Utilization rates for the federal program won't be available for months, since most recent graduates won't start paying their loans until December or later.

Adding to the confusion is that the U.S. Department of Education, which oversees the program, hasn't developed any official forms for borrowers to register for the public interest forgiveness option. Instead, borrowers must make sure that they have signed up for income-based repayment with their lenders and follow all the other necessary steps. "It's been hard to promote the program because there isn't really an application and the Department of Education hasn't given us a lot of guidance," Chitty said. The department did not respond to requests for comment on the program.

In addition to helping students and alumni explore their loan repayment options, the federal act is prompting some law schools to revisit their own loan assistance repayment programs for public interest attorneys. Jarvis has been encouraging law schools to redesign their own programs to work in conjunction with the new federal program and fill in its funding gaps. Schools might want to direct more of their financial support to earlier graduates, Jarvis said, because students who graduated before federal Grad PLUS loans became available in 2006 tend to have far more private loan debt. Private loans aren't covered by the new law.
Northeastern and Duke are among the schools taking a look at their loan-repayment assistance programs, but neither has made any changes yet, administrators said.

Officials and students at Berkeley's law school spent the past academic year adjusting the school's assistance program in light of the new federal law, said Eric Biber, an assistant professor and member of the financial aid committee. The school can afford to be more generous with its own money because of the infusion of federal assistance.

Berkeley's existing loan-repayment assistance program provides full loan coverage for public interest attorneys making $58,000 or less a year on up to $100,000 in student loans. The new rules eliminate the $100,000 loan cap and provide full coverage for public interest attorneys making $65,000 or less a year. Graduates must enroll in the federal income-based repayment option to qualify for the school's updated program. "Our goal was to provide better coverage for our students in a way we could sustain in the long term," Biber said.

Other schools may see the new federal assistance as an opportunity to cut spending on their loan-repayment assistance programs, Jarvis said. She did not know of any school that had taken that step, however.

Haeya Yim was among a group of public interest students at Brooklyn Law School who became concerned this year that their school's local program might be scrapped once the federal assistance becomes available. "It was definitely a worry that the school would say, 'Now you're taken care of. We don't have to do it,' "said Yim, who recently graduated and is looking for a public interest position.

However, Brooklyn Law School officials told the students that they remain committed to maintaining the school's program, Yim said. She would like to see it modified to better supplement the federal aid, perhaps front-loading assistance payments for new graduates who are studying for the bar and purchasing work wardrobes. No changes have been announced yet.

The tough economy is having an impact on at least one law school's ability to financially assist alumni in public interest jobs, however.

Budget pressures forced the University of  North Carolina School of Law to cancel the launch of its loan-repayment assistance program this year, said Sylvia Novinsky, assistant dean for public service programs. The state government cut funding to the school, and the money that was earmarked for the program was part of that reduction. Still, the school hopes to revive the program next year.

"We're all frustrated," Novinsky said. "But this is a time when we don't get to make those decisions. It's hard." 

 

INCOME-BASED REPAYMENT SCENARIO
Single borrower
Student debt	$100,000
Interest rate	6.8%
Annual salary	$40,000 with 5% annual raise
Starting monthly payment under income-based repayment	$297
Monthly payment under standard 10-year repayment plan	$1,151
Amount of debt forgiven after 10 years in a public interest job	$115,959
Amount of debt forgiven after 25 years in a nonpublic interest job	$51,921
For more information on the new loan programs, visit www.equaljusticeworks.org and www.ibrinfo.org.

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Mock constitution isn't a scaremonger – [Editorial]
Mobile Press-Register
June 23, 2009
THE MOCK state constitution being circulated by Alabama Citizens for Constitutional Reform is short and efficient. It proves that replacing the 1901 version is doable and that Alabama can govern itself without 799 amendments.

Speaking of all those amendments to the real constitution, consider No. 799, the last one listed by the Alabama Legislative Information System online. It is exactly the sort of thing you won't find in ACCR's version.

Amendment 799 amends Amendment 756. It reads, "In Shelby County, the Legislature, by local law, may provide for the enforcement of traffic laws on private roads in private gated communities and platted subdivisions with 35 or more existing houses whose roads are not public in the county."

Do you care about traffic laws in Shelby County? Probably not. But people in that county do, so someone had to get the amendment through the Legislature and residents had to vote on it.

The mock constitution came out of a mock convention held earlier this year as part of the ACCR's fight for reform. The group welcomes comments; the draft is available at www.politicalparlor.net/dock/mock-constitution-draft/. ACCR is even willing to change it before "adopting" it in late August.

The draft is unlikely to please everyone. For example, the Press-Register editorial board disapproves of exempting legislators from arrest while attending or traveling to and from legislative sessions. There are exceptions for treason, felonies, violation of oaths of office or breach of the peace (which ought to cover senators trying to slug each other in the Statehouse). But legislators deserve no immunity from drunken-driving arrests.

However as a starting point for debate, there's much to like:

--An open meetings and open records clause in Section 2.

--Basic rights for crime victims, including the right to be informed, to be present and to be heard "when authorized, at all crucial stages of criminal proceedings."

--Home rule. That means citizens, together with their municipalities and county governments, can decide for themselves about how to handle local issues like mosquito control, dangerous dogs, road maintenance and traffic laws.

--Hunting and fishing rights. OK, maybe it's not absolutely necessary, but this is Alabama, and a lot of people will find the "inviolate" right to hunt and fish far more important than such housekeeping provisions as the terms of office for senators and representatives.

--No more double-dipping. No state employee could hold elected state office, and no one could hold two state offices "for profit" at the same time.

There's much more, and it's worthwhile reading for anyone concerned about reform in Alabama. Join the debate.
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Disclosure remains key component – [Editorial]
The Montgomery Advertiser
June 15, 2009

Alabamians who thought they saw a glimmer of hope for our state's money-tarnished judicial elections in a recent U.S. Supreme Court decision are in for a disappointment. That decision won't mean much in Alabama.

For the first time, the court addressed the issue of whether a large campaign contribution from a party with a case before a judge should cause that judge to recuse himself or herself from the case. In Caperton v. Massey, the court held that it should.

The case involved a West Virginia Supreme Court justice whose election was largely funded by a coal company executive who spent $3 million on his campaign -- three times what the justice's own campaign committee spent. The coal company had appealed a huge judgment against it, and the justice ruled in its favor -- twice.

One need not be a scholar of judicial ethics to see the problem here. The perception of impartiality that is crucial to maintaining confidence in the courts was obliterated.

Alabamians have seen plenty of big-bucks judicial races. Since 1993, interests and individuals have spent more than $60 million on races for the state Supreme Court, more than in any other state.

So shouldn't this West Virginia case offer some hope for an end to these costly, often highly negative campaigns in Alabama that are harmful to the judiciary's image? Sadly, no.

There is a critical distinction between the states. In West Virginia, this scandal was widely known because the state's election laws require much clearer disclosure of campaign contributions, whether made directly to a candidate or expended by a person or group on the candidate's behalf.

In Alabama, however, contributions can easily be masked by shuffling the money around through multiple political action committees -- the practice of "PAC-to-PAC transfers" that is roundly criticized in each session of the Legislature even as lawmakers decline to do anything about it. In addition, third-party groups don't have to disclose their donors. That means that lots of money can be poured into an Alabama Supreme Court campaign without it ever becoming clear whose money it is or whether a conflict calling for recusal would result from it later.

Ironically, Alabama actually has a law restricting the amount of campaign money a judge can accept before recusal is required in cases involving the contributors -- $4,000 for an appellate judge and $2,000 for a trial judge. However, without a way to know who gave to whom and how much, it's useless.

"It's a pretty good statute," Thomas Wells, the Alabama lawyer who is the current president of the American Bar Association, told the Birmingham News. "The problem is Alabama has no transparent way to track campaign contributions to judges, so that statute can't be used."

Absent that transparency, Alabama will always be vulnerable to scandals such as the West Virginia case, in which judges clearly ought to step aside from a trial or an appeal. We simply might not know it when such a travesty occurs.
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Restoring judicial credibility – [Editorial]
The Huntsville Times
June 14, 2009

Suppose a case challenging the legality of video bingo goes before the Alabama Supreme Court. Should the case handled by judges who had taken tens of thousands of dollars in anonymous campaign donations, either from gambling interests or their opponents?

That's not an implausible scenario for any number of issues that might reach the court someday.

Last week, people who say the state's campaign finance laws should be overhauled and appellate judges appointed picked up support in Washington.

And those who don't want anyone to know about their campaign donations came away with a new reason to fight change, at least in appellate races.

Because so much may be at stake, state Supreme Court campaigns have become highly partisan, drawing millions of dollars in donations every time races for justice or chief justice are on the ballot.

Even in this poor state, four candidates in two elections in 2006 and 2008 raised and spent nearly $12 million.

Monday, the U.S. Supreme Court ruled that huge campaign donations to judges jeopardize the constitutional right to a fair trial.

Actually, Alabama law anticipated the Supreme Court case.

Appellate judges in Alabama must abstain from cases of donors who have given them at least $4,000. The limit for trial judges is $2,000. The U.S. Supreme Court ruled 5 to 4 that a $3 million contribution to a candidate who won election to the West Virginia Supreme Court was too large to ignore.

But Alabama's stingy limits are easy to evade. The law sets no limit on how much someone or a political action committee can give a candidate, and it's impossible to trace the source of campaign money when it is laundered through one political action committee after another.

And candidates for the Alabama Supreme Court needs lots of money. In the only Supreme Court race last year, Democrat Deborah Bell Paseur raised $2.7 million. Republican Greg Shaw, who won, raised $1.7 million.

Two years before that, Sue Bell Cobb, a Democrat, raised $2.6 million in her race to defeat Republican Chief Justice Drayton Nabers. He raised $4.9 million during the Republican primary and general election.

Nabers' primary opponent, Justice Tom Parker, spent a little more than $600,000. That pushed the total in the chief justice campaign to $8.2 million, a record for the most expensive single judicial race in 2006, according to the National Institute on Money in State Politics (followthemoney.org).

Of course, someone with a pending court case wouldn't want anyone to know about a large contribution to a judge or the judges handling the case.

The Legislature could ban anonymous political donations in appellate court races. That might put a brake on campaign donations and help restore faith in the idea of an independent judiciary.
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Tennessee Bar Fight - Busting the monopoly on judicial selection –[Editorial]
The Wall Street Journal
June 15, 2009

Tennessee is moving the dial on how it chooses judges, changing parts of the so-called merit selection method that has governed the state for decades. Under a new plan approved by the legislature on Friday, the lawyers who have dominated judicial selection are getting put back in their place.

The extraordinary influence of the bar is a hallmark of the judicial selection method used by more than two dozen states. Sometimes called the Missouri Plan for its state of origin, a slate of potential nominees is chosen by a judicial nominating commission and presented to the Governor for a pick. Designed to reduce the pull of politics on judges, the plan instead gave power to lawyers who sat on the commissions and pushed state courts to the left.

Under Tennessee's old version of this plan, commissioners were chosen from lists submitted by various legal special interests including the Tennessee trial lawyers association, the district attorneys general conference and the Tennessee bar association. Under the new system, all 17 members of the Judicial Selection Commission would be picked directly by elected officials, rather than by the lawyers groups. The change should reduce the power of a professional guild to control state jurisprudence and reintroduce accountability through elected officials.
Tennessee is the latest state to push back against this insider "merit" selection amid widespread dissatisfaction. In 2006, Democratic Governor Phil Bredesen grew so frustrated with the subpar slates of nominees that he sued the judicial nominating commission for the right to consider others -- and won. The system was put on the path to extinction last year as lawmakers declined to renew it.

Tennessee would thus have automatically reverted at the end of June to the judicial elections required under its Constitution. The new plan buys the state two years to consider other alternatives. One good idea lawmakers should revisit would allow the governor to reject two slates of nominees and then choose a nominee from among anyone who applied for the position. Though likely a rare occurrence, the possibility of being rendered irrelevant would have a bracing effect on the nominators.

That improvement was excised from the state Senate's version of the bill, but Tennesseans are bound to hear more about it. Lieutenant Governor and Senate Speaker Ron Ramsey is one of several Republicans running for Governor in 2010, and voters should ask why he didn't push harder for broader choices of nominees. In its best incarnation, a judicial commission is designed to serve a useful editing function, providing a short list of desirable candidates for the Governor, similar to the way staffers might under a federal system. When it's dysfunctional, the Governor should be allowed to take the reins.

The Tennessee plan that was supposed to prevent the tawdry appearance of litigants and special interests involved in electing judges instead ended up with them selecting the judges behind closed doors. The state's reforms will open the commission's meetings to the public and are a good first step toward bringing transparency and accountability to those judging the judges.
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Calif wants to cut legal aid attorneys for poor
By DEBORAH HASTINGS, The Associated Press
June 15, 2009

Lawyers for the poor, who say they already are stretched to the breaking point by huge caseloads and dwindling staff, face layoffs across the country as local governments slash spending in these hard economic times.

Nowhere is the threat to public defenders more apparent than in California, the state with the biggest population — at 38 million_ and the largest deficit — $24.3 billion and counting.

There's far more at stake than cutting jobs, say prosecutors and defense lawyers alike. Eliminating attorneys for the indigent may actually cost more money than it saves.

Unlike any other public service, court-appointed counsel cannot be scaled back. According to the Constitution, every criminal defendant, rich or poor, gets one. If the defendant can't pay, the government does. And if public defenders aren't available, private attorneys must be hired, at rates costing at least twice as much and often more.

"Counties can't just say `I'm not going to pay,'" said San Francisco Public Defender Jeff Adachi, who's locked in a very public fight with Mayor Gavin Newsom over a recent directive to cut the defense lawyer's budget by nearly $2 million.

Adachi said his office would be devastated and would have to fire 15 to 20 attorneys, about 20 percent of his staff.

Then, he said, "The whole system would begin to fail."

Defendants would sit in jail longer, increasing incarceration costs, Adachi said. Cases would be delayed while private attorneys get up to speed, creating bigger clogs in a legal pipeline that barely trickles now.

Adachi's current budget is nearly $24 million — "less than half what the police and sheriff's departments spend in overtime," he notes. Slashing it would mean farming out 6,000 cases to private lawyers, ranging from misdemeanors to felonies. That would cost $3 million to $4 million, Adachi estimates, or up to twice as much as the cut itself.

"It's robbing Peter to pay Paul," he said, because, inevitably, it's the county general fund that has to pay the extra costs — the same fund that pays for his office. "It's really shortsighted."

Sacramento County has already laid off 18 staffers, and will give pink slips to 29 attorneys if it doesn't get a fiscal break quickly. Los Angeles County Public Defender Michael Judge said he doesn't know how much will be cut from his office, which employs about 600 attorneys and is the state's largest indigent defense system.

"I don't know if I'm going to have to lay anybody off yet," he said.

California counties are particularly troubled as they head toward a July 1 budget deadline for new fiscal year. Their local revenues have tanked, thanks to huge drops in sales tax and property tax incomes caused by businesses closing and home loan foreclosures.

Then there's further recession fallout, including shrinking amounts of state funds.

San Francisco and Los Angeles have experienced layoffs before in less dire recessions. But when expensive bills started coming in from private lawyers, stunned county officials rehired public defenders, who'd been doing the same job for considerably less.

Desperate Sacramento County officials face a deficit of $140 million and say legal services for the poor may be cut by 24 percent.

Prosecutors haven't been spared, either. The district attorney's office is braced to lose $13 million and 46 attorneys _about 23 percent — during the new fiscal year.

"It's bad for the system all the way around," said the DA's chief deputy, Cindy Besemer. "It's to the detriment of everyone involved. Victims get hurt because everything is left hanging. The longer you delay a case, the harder it is to prove because you're asking people to testify about something that happened a year ago."

The problems are far from unique to California.

Minnesota eliminated the jobs of 53 public defenders, or about 12 percent of the staff. Last summer, the office stopped representing parents involved in child welfare cases, referring them instead to counties, which hired private lawyers.

"The counties incurred a lot of costs they weren't happy about," said John Stuart, head of the state's public defender office. "It was about 9 percent of our caseload."

So far, Minnesota has avoided more attorney cuts, partly by finding unusual ways of generating revenue, including increasing the license fees of lawyers by $75.

"It's like telling the county pothole-filling crews to chip in an extra $10 to pay for the asphalt," Stuart said dryly. "But it's better than not following the Constitution."

Unlike California, where counties bear the burden of funding public defenders, Minnesota has a statewide office.

Court systems across the country also are targeted for drastic cuts. Some courtrooms will go dark for at least one day a month to save costs, adding more weight to backlogged dockets.

In Los Angeles County, which has the nation's largest court system with nearly 600 courtrooms, steep cuts will force nearly all operations to shut down one Wednesday per month, beginning July 15. But the furlough plan may not be enough to avert laying off 25 percent of the court's 5,400 employees, officials warned.

Though President Barack Obama's economic stimulus package has made billions available, it's still not enough to plug every budget hole.

"We're already in a very precarious position," said Fresno County Public Defender Kenneth Taniguchi, whose central California district lies in a vast agricultural area that supplies much of the nation's produce.

"It's inadequate right now as it is," he said. "It's not a pretty picture."
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Malpractice Lawsuits Are ‘Red Herring’ in Obama Plan
By Alex Nussbaum, Bloomberg News
June 16, 2009

Protecting doctors from lawsuits may do more to gain political cover for President Barack Obama’s health-care overhaul than to rein in medical costs.

While Obama vowed to address physicians’ malpractice worries in a speech yesterday, annual jury awards and legal settlements involving doctors amounts to “a drop in the bucket” in a country that spends $2.3 trillion annually on health care, said Amitabh Chandra, a Harvard University economist. Chandra estimated the cost at $12 per person in the U.S., or about $3.6 billion, in a 2005 study. Insurer WellPoint Inc. said last month that liability wasn’t driving premiums.

Obama told an American Medical Association meeting in Chicago yesterday that his efforts to cut costs and increase coverage couldn’t succeed without freeing doctors from the fear of lawsuits. While that may be what his audience needed to hear, the evidence that malpractice drives up health-care costs is “debatable,” said Robert Laszewski, an Alexandria, Virginia, consultant to health insurers and other companies.

“Medical malpractice dollars are a red herring,” Chandra said in a telephone interview. “No serious economist thinks that saving money in med mal is the way to improve productivity in the system. There’s so many other sources of inefficiency.”

Obama, appealing for doctors’ support for health-care legislation, said he would “explore a range of ideas” to reduce the effect of lawsuits, without giving specifics. While he opposes caps on jury malpractice awards, Obama said he recognized the legal threat spurs doctors to perform unnecessary tests and procedures -- so-called defensive medicine.

‘Fear of Lawsuits’

Making U.S. care more efficient will be harder “if doctors feel like they are constantly looking over their shoulder for fear of lawsuits,” the president said.

One possibility the Democratic administration has mentioned is shielding doctors from liability if they follow “best practice” guidelines developed by physicians’ groups, said J. James Rohack, incoming president of the 250,000-member AMA, in a news conference after the speech. Doctors were “thrilled” to hear Obama acknowledge the issue, even with the lack of specifics, said Nancy Nielsen, the outgoing president.

“What we heard we were very pleased with,” Nielsen said. “He is open to considering options that will lower the cost of defensive medicine.” While stating opposition to caps, the president “has not taken that off the table,” she said.

In a letter to Obama on June 1, the doctors suggested Congress fund pilot projects for state courts or administrative agencies specializing in malpractice. They also recommended experimenting with predetermined schedules for injury awards and “early offer initiatives” designed to speed settlements.

Exorbitant Premiums

“Exorbitant” malpractice premiums are making it harder for doctors to stay in the business, and hurting taxpayers whose money goes for publicly funded clinics, said William C. Parrish Jr., chief executive officer of the Santa Clara County Medical Association, based in San Jose, California. The group represents 3,600 physicians.

Capping awards is “going to ruffle the feathers of trial bar attorneys,” he said by phone. “They are going to say it’s affecting these poor victims. But if we could provide 5,000 more free visits at the county hospital for indigent care, as opposed to giving a huge settlement for one person for non-economic damages, socially that’s a good tradeoff.”

About 10 percent of the cost of medical services is linked to malpractice lawsuits and more intensive diagnostic testing due to defensive medicine, according to a January 2006 report prepared by PricewaterhouseCoopers LLP for the insurers’ group America’s Health Insurance Plans.

2 Percent of Spending

The figures were taken from a March 2003 study by the U.S. Department of Health and Human Services that estimated the direct cost of medical malpractice was 2 percent of the nation’s health-care spending and said defensive medical practices accounted for 5 percent to 9 percent of the overall expense.

A 2004 report by the Congressional Budget Office also pegged medical malpractice costs at 2 percent of U.S. health spending and “even significant reductions” would do little to reduce the growth of health-care expenses.

The proportion of medical malpractice verdicts among the top jury awards in the U.S. has declined during the past 20 years, according to data compiled by Bloomberg. Of the top 25 awards so far this year, only one was a malpractice case. At least 30 states cap damages in medical suits, primarily for “pain and suffering” awards.

‘Completely Broken’

The medical malpractice system is “completely broken,” said Chandra, a public policy professor at Harvard in Cambridge, Massachusetts. It rewards plaintiffs who are undeserving while leaving others with real injuries unpaid, prompts some doctors to perform needless tests and encourages others to refuse to care for patients deemed a higher legal risk, he said.

The development of new drugs and medical procedures, and their growth in price, has been a bigger factor in costs, said Chandra, citing his research and that of other economists. Studies haven’t found a link between increasing procedures, such as Caesarian-section births, and areas with rising malpractice damages, he said.

Medical malpractice is “not a major driver” of spending trends in recent years, Indianapolis-based WellPoint, the largest U.S. insurer by enrollment, said in May 27 report. The report cited advances in medical technology, increasing regulation and rising obesity as more significant reasons for rising costs.

Issue for Doctors

Malpractice is “a big issue for doctors but whether it’s a big issue for the American health-care system is another question,” Laszewski, the consultant, said in a telephone interview. “There are studies that indicate that medical malpractice reform would not have a huge impact on costs, but that is not what doctors think.”

A Washington-based trial lawyers’ group, the American Association of Justice, opposes curbing malpractice lawsuits.

The U.S. Institute of Medicine found a decade ago that medical errors kill 98,000 Americans a year, said Les Weisbrod, president of the lawyers’ association. “By taking away the rights of people to hold wrongdoers accountable, the quality of health care will suffer tremendously,” he said.

Without more details of Obama’s plan, it’s too soon to say how reforming malpractice insurance will affect companies providing insurance to doctors, said Michael Nannizzi, an analyst at Oppenheimer & Co. in New York.

“The insurance companies that are in the business now don’t want medical malpractice to suddenly become an easy business to write, because that takes away the expertise they’ve built over the years,” he said by telephone. “But they do want to have some predictability for their own financials. It’s a very fine line.”
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Uncertainty in Law Circles Over New Rules for Judges
By JOHN SCHWARTZ, The New York Times
June 10, 2009

Lawyers across the country said Tuesday that a Supreme Court ruling on conflicts of interest among elected judges could prompt a deluge of requests for judges to recuse themselves from cases. But judges predicted that few situations would involve conflicts serious enough for the new ruling to apply.

On Monday, the court ruled that judges must remove themselves from cases that involve people who donated huge sums to help them get elected. While judges and lawyers might disagree on the consequences, legal experts said that either way, scrutiny would increase.

“You’re going to see a much greater analysis put to the campaign contributions that elected judges get,” said H. Thomas Wells Jr., the president of the American Bar Association.

The court, in a 5-to-4 opinion written by Justice Anthony M. Kennedy, ruled that the Constitution requires judge to disqualify themselves from hearing a case when campaign spending by an interested party had “disproportionate influence” on a case that was “pending or imminent.”

The decision did not set detailed standards for recusal, but said the extreme facts presented in the case clearly crossed a line. In the case, Caperton v. A. T. Massey Coal Company, a coal executive had spent $3 million to help elect a justice of the West Virginia Supreme Court. The justice then voted twice to throw out a $50 million judgment against the executive’s company.

The court left many questions unanswered, inviting the states to sort out where the lines should be drawn to determine when recusal was appropriate. Some judges and legal analysts said the ruling would not have an enormous effect on judges, because contributions as large as the West Virginia ones were rare.

“I wouldn’t think you would find judges panicking” and saying “Whoo! I’d better go over my docket!” said Bradley A. Smith, chairman of the Center for Competitive Politics, a group that opposes campaign regulations on First Amendment grounds.

Mr. Smith called the ruling “sort of the Bush v. Gore of campaign finance law,” referring to the Supreme Court opinion that decided the 2000 presidential election. That ruling was written in a way intended to give it little value as a legal precedent.

Still, Mr. Smith added, if the first lower courts to apply the case give Caperton a broad reading, “then you would start to see the floodgates open.”

Lawyers, meanwhile, see opportunity. John Wesley Hall Jr., who has a practice in Little Rock, Ark., sees a future full of motions from lawyers like him demanding that judges step aside. Mr. Hall has filed such motions in the past, but said the new ruling “gives us an issue to argue” on constitutional grounds.

Some states are already reviewing where the line should be drawn. Wisconsin’s Supreme Court has announced that it will hold rule-making hearings in the fall on the influence of political contributions, based on petitions from the League of Women Voters and the Wisconsin Realtors Association.

To Mr. Wells of the bar association, the Caperton decision suggests that states should have tough standards on recusal like those proposed in the association’s model code of judicial conduct, including an “absolute dollar amount” for contributions to trigger recusal, determined state by state.

Has the proposal been broadly adopted?

“Not very,” Mr. Wells said. Just two states have gone in that direction.

Thomas R. Phillips, a former chief justice of the Texas Supreme Court, said the case showed the problems inherent in electing judges, a practice virtually unique to the United States.

Mr. Phillips, who filed a brief in the case on behalf of the Conference of Chief Justices, said states like Texas turned to judicial elections in the 19th century in part because political appointments were seen as corrupt. Those early races, he said, “were essentially money free — maybe a little whiskey at the polls.”

The world has changed since then, Mr. Phillips said, with money rising in importance. The best result of the case just decided would be “to reignite the national debate on how we choose our state judges,” he said.

Rebecca Love Kourlis, executive director of Institute for the Advancement of the American Legal System at the University of Denver and a former justice of the Colorado Supreme Court, noted that Arizona, California, Colorado and Utah appointed their judges but then held periodic elections to keep them on the bench.

“There’s a way to choose that makes a whole lot of sense,” Ms. Kourlis said, “and doesn’t get you into this political quagmire.”

Judges like Alabama’s chief justice, Sue Bell Cobb, said few cases would be likely to trigger the constitutional scrutiny set out by the Supreme Court in Caperton. Judges, Justice Cobb said, will still generally be guided by local canons of ethics.

But she suggested that there would be greater scrutiny after Caperton and said it would be “a good thing” because it will push judges to be more careful.

“All the court system has is the public’s respect,” Justice Cobb said. “If we lose the respect, we don’t have anything.”
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Supreme Court won't clean up judicial races – [Editorial]
Mobile Press-Register
Wednesday, June 10, 2009

IT WILL take more than a U.S. Supreme Court ruling to change Alabama's tawdry system of electing judges in nasty, big-money campaigns. But with its 5-4 decision ordering a West Virginia Supreme Court justice to step aside from a case involving a major contributor to the justice's election campaign, the nation's highest court did strengthen arguments for reforming the judicial selection process in Alabama and other states that elect judges.

Justice Anthony Kennedy, the author of the majority opinion in Caperton v. A.T. Massey Coal Co., described the case as an "extreme" example of a campaign contributor exerting influence on the courts.

West Virginia Supreme Court Justice Brent Benjamin refused to recuse himself from a case involving Don Blankenship, a coal company executive who was seeking to overturn a $50 million judgment against his company. Justice Benjamin, who received $3 million in campaign contributions from Mr. Blankenship, voted to throw out the jury verdict.

Justice Kennedy found that Justice Benjamin should have stepped aside from the case, given that there was "a serious, objective risk of actual bias" stemming from Mr. Blankenship's key role in funding the justice's campaign. The decision almost certainly will spur more challenges to rulings issued by elected judges, but it probably won't have a significant effect on how state judicial campaigns are conducted.

In Alabama, the impact of the Supreme Court ruling will be further diluted by the difficulty of identifying the source of campaign donations. The state allows contributions to be routed through a maze of political ac tion committees. These PAC-to-PAC transfers are intended to hide the real donors and keep the public from learning about possible conflicts involving candidates and their campaign sugar daddies.

So the U.S. Supreme Court isn't going to clean up Alabama's Supreme Court campaigns, which may be the nastiest and most expensive in the country. Those campaigns do create a "serious, objective risk of actual bias." The justices may not be compromised by the campaign support they receive from the trial bar or business groups, but the appearance that justice is for sale undermines public confidence in the courts and robs justices of the dignity their positions should command.

It's up to the Legislature to enact reforms that guarantee the independence of the judiciary and promote public respect for the courts. Lawmakers can find an appealing alternative to the state's ugly judicial election process in the system of judicial appointment and voter retention known as the Missouri Plan.

Under this system, the governor picks judges from lists submitted by a blue-ribbon selection committee. The appointed judges are required to stand for periodic voter retention elections.

Sixteen states have appointment/retention systems for judges. Nevada lawmakers recently decided to let that state's voters decide whether to switch from judicial elections to a Missouri-style plan.

If Alabama lawmakers do finally decide enough is enough in the state's judicial campaigns, they should follow the example of Nevada and move toward an appointment/retention system for judges.
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Opinions of U.S. Supreme Court recusal meaning differ
By Dana Beyerle, Gadsden Times
June 10, 2009

MONTGOMERY — The Alabama Supreme Court doesn’t have a rule telling judges when to recuse themselves from cases they hear, but that could soon change. Supreme Court Clerk Robert Esdale said Tuesday he will ask justices at their June 17 conference to formally outline when state judges should step down from cases they have or appear to have a conflict of interest.

Esdale said he’s convinced the U.S. Supreme Court will negate Section 5 of the Voting Rights Act that requires preclearance of laws in Alabama and several other states affecting voting and elections.

"That means we’ve got to get a rule up," Esdale said. "I’ve got it on the agenda for the next conference to come up with the best rule we can do to accommodate (a 1995 Alabama) law."

The 1995 law outlines when judges should recuse, but because it was never precleared, it’s "not legally enforceable," the Judicial Inquiry Commission said in 1999.

The law sought by Gov. Fob James in the wake of acrimonious state Supreme Court races says lawyers can file recusal motions if judges receive more than $2,000 or appellate judges receive more than $4,000 from a party or a lawyer in a case.

The discussion of a recusal rule is timely in the wake of Monday’s U.S. Supreme Court ruling in a $50 million West Virginia lawsuit ruled on by an elected state appellate judge who didn’t recuse in the lawsuit but should have.

In that 5-4 decision, the U.S. Supreme Court said a state Supreme Court of Appeals judge who got $3 million in election support from the loser in a $50 million lawsuit should not have heard his case on appeal. The judge ruled in favor of the defendant, whom a jury said owed the plaintiff $50 million.
The U.S. Supreme Court overturned the state Supreme Court ruling, saying the loser didn’t get due process from the state appellate judge who was the deciding vote. The U.S. Supreme Court didn’t say how much a political contribution has to be before a judge should recuse, but clearly $3 million was too much.

DeKalb County Circuit Judge Randall Cole is chairman of the Judicial Inquiry Commission that hears complaints against judges. "It appears from the opinion the contribution this litigant made was so significant the court found it to be in violation of due process," Cole said.

Administrative Office of Court spokesman Dean Hartzog said the AOC doesn’t keep records of requests for recusal but it may have to, at least unofficially. "I have a feeling there’s going to be a lot of motions for recusal as a result of this," retired Alabama Supreme Court Justice Gorman Houston Jr. said.

Alabama elects judges like more than three dozen other states and campaign laws don’t prohibit contributions by groups or persons interested in the legal profession. Cole said Alabama judges frequently recuse where there’s a perception they might be unfair, "whether they are or not."

"Motions to recuse are handled by the judge, and then parties that are dissatisfied can appeal to the appellate courts," Cole said.

Alabama Attorney General Troy King submitted a friend-of-the-court brief in the U.S. Supreme Court case. He argued against creating "an entirely new body of federal constitutional law to govern day-to-day recusal practice in state courts."

King said his point was not about the method of selecting judges in Alabama.
"I just happen to believe states are the better place to make policy, they’re closer to the people and better able to tailor situations," King said.

King said he believes the opinion is a narrow one that leaves room for regulation.
"Nevertheless, it may have an impact on our political process," added Cole.

Alabama Bar Association President Mark White said the bar advocates election reform, "and the Caperton decision may become a catalyst for change."

"The (Caperton) opinion from our nation’s highest court confirms the commitment to an independent judiciary free from the obscene amounts of cash spent in recent judicial election campaigns," White said. "I am more confident than ever that the citizens of Alabama want to end campaign practices that give the perception that cash in the courtroom affects the result."

Houston said judicial merit selection that he favors would eliminate the "perception" that justice can be bought.

With that said, Houston added that he cannot recall when a judge recused based on contributions.

"The perception is there, and that’s the thing that has to be overcome, in my opinion," Houston said.

Opponents of merit selection say since voters know so little about judges, one way to ride herd on them is to elect them.

In Alabama, Supreme Court races especially are dominated by trial lawyer and business contributors. Houston is pessimistic about changing the method of selecting judges.
"People have been working on it for years, but the (political) party in power opposes it, so I don’t think it will happen."

In the 2006 chief justice election and in a 2008 Supreme Court justice race, millions of dollars were spent by candidates and so-called 527 groups to influence their outcomes.

Gibson Vance, an attorney with the Beasley Allen law firm in Montgomery and president of the Alabama Association for Justice, said the U.S. Supreme Court opinion should rekindle debate about Alabama’s expensive appellate judge elections. The Alabama Association for Justice is the former Alabama Trial Lawyers’ Association.

"A rule would be better than nothing," Vance said. "If you didn’t have partisan elections for judges that require obscene amounts of money to be spent, I think that would alleviate the problem."
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Ruling on judges deciding cases of contributors has little effect in Alabama -
Contributors can hide who they are in state
ERIC VELASCO, The Birmingham News
June 9, 2009

Monday's U.S. Supreme Court ruling that elected judges must step aside in some cases involving large campaign contributors will have little effect in Alabama, which allows donors to shield their contributions, state and national experts said.

The 5-4 decision, Caperton v. Massey, said a West Virginia Supreme Court justice should have recused himself from hearing an appeal from a company run by a man who played a major role in the justice's election months earlier.

"There has been an unprecedented flood of money into judicial elections," said Susan Liss, director of the democracy program at the Brennan Center for Justice. "And this decision makes clear that campaign contributions must not be permitted to undermine the impartiality of the courts."

Monday's decision was the first time the nation's high court had said a judge's ability to be fair and impartial can be affected by campaign contributions. Alabama and 38 other states elect judges.

"It's a signal to states like Alabama that the time has come to get money out of judicial selection," said Bert Brandenburg, executive director of Justice at Stake, a Washington-based group promoting impartial courts.

Alabama is viewed nationally as an example of special interest spending to influence judicial elections.

Groups including business interests, trial lawyers and unions have spent nearly $60 million since 1993 on Alabama Supreme Court races, the most in the nation. In that time, the balance of power has shifted on the court from Democrats to Republicans.

Alabama already has a law limiting how much campaign money judges can get - $4,000 for appellate judges and $2,000 for trial judges - before recusing themselves from cases involving those donors.

"It's a pretty good statute," said H. Thomas Wells of Birmingham, president of the American Bar Association. "The problem is Alabama has no transparent way to track campaign contributions to judges, so that statute can't be used."

In Caperton, the court majority ruled Brent Benjamin was wrong to hear appeals of a $50 million judgment in 2004 against A.T. Massey Coal Co.

Massey's chairman, Don Blankenship, had recently spent $3 million to get Benjamin elected to the West Virginia Supreme Court. That was triple the amount spent by Benjamin's own campaign committee.

Benjamin twice ruled in favor of Massey.

The U.S. Supreme Court majority - Justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg, Stephen Breyer and John Paul Stevens - said Blankenship played a "significant and disproportionate" role in the election.

The timing of the contributions also helped create the appearance that Benjamin would be biased in favor of his benefactor, the majority ruled.

The four dissenters - Chief Justice John Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito - said the majority was wrong to create a new recusal rule to fix an extreme case.

"Today's opinion requires state and federal judges simultaneously to act as political scientists (why did candidate X win the election?), economists (was the financial support disproportionate?), and psychologists (is there likely to be a debt of gratitude?)," Roberts wrote in his dissent.

It's nearly impossible in Alabama to make a case that a judge has been biased by campaign contributions because it is so difficult to track campaign money, said Charles Hall, spokesman for Justice at Stake.

Donors can hide within a maze of political action committees, Hall said. But also third-party groups, now playing an increasing role in Alabama Supreme Court elections, aren't required to disclose their donors.

"You can't ask a judge to step aside if you don't know where the money is coming from," Hall said. "Alabama needs to open the windows and let the sunlight in."

In Caperton, Blankenship's influence was easy to trace because West Virginia law requires interest groups to disclose their donations, Hall said. About $2.5 million of Blankenship's spending went to the pro-Benjamin group "And For The Sake Of The Kids," some 66 percent of its total revenue, disclosures showed. He also gave $1,000 directly to the campaign and spent a half-million dollars on direct mailing and advertising for Benjamin.

In 2008, a Virginia group called Center for Individual Freedom spent about $1 million on ads supporting Greg Shaw, the Republican candidate for Alabama Supreme Court.

"The problem was no one really knew where the money was coming from," Hall said.

Wells, the ABA president, said Alabama can improve transparency by eliminating PAC-to-PAC transfers or at least banning PAC money from judicial elections.

In addition to requiring donor lists from third-party groups, Justice at Stake officials said potential reforms include publicly financing judicial elections or appointing judges and requiring them to run solo in retention elections.

"Polls show that three Americans in four believe that campaign spending can influence courtroom decisions," Brandenburg said. "Without measures to keep courts fair and impartial, spending to elect judges will continue to run away and public trust will continue to erode."

Election reform efforts in Alabama have failed in recent legislative sessions.

But J. Mark White, a Birmingham lawyer and president of the Alabama State Bar, said those efforts are gaining momentum.

The Caperton decision may become a catalyst. But a growing public sentiment favoring change will play a key role, he said.

"The citizens of Alabama would like to remove the obscene amounts of cash in judicial campaigns," he said. "We'll see where that goes. But I've been doing this for several decades and I'm more optimistic than I have been."
- - -

Ruling aims at judicial races
George Altman, Mobile Press-Register
June 9, 2009

MONTGOMERY — Alabama judicial campaigns, often among the priciest in the country, could see significant changes in the wake of a U.S. Supreme Court ruling issued Monday, state legal experts said.

The 5-4 decision, which ordered a West Virginia judge to recuse himself from a case involving a large campaign donor, may start a "new chapter" in state judicial races, according to Alabama Bar Association President J. Mark White.

"I do think that Alabama will take a fresh look at its judicial campaign laws and practices," White said.

"Justice should not be for sale to anybody, and that's really where the (U.S. Supreme Court) opinion comes down."

But others say that multimillion dollar Alabama Supreme Court races won't likely end any time soon.

The ruling "certainly is supportive of reform," said University of South Alabama political science professor Keith Nicholls. But "there have to be some real attempts at reform to begin with."

Monday's decision concerned West Virginia Supreme Court Justice Brent Benjamin, who received $3 million in campaign support from the chief executive of a coal company. During the campaign, that coal company was appealing a judgment ordering it to pay damages — now totaling more than $82 million — to a competitor.

The case eventually made its way to the West Virginia Supreme Court, where the newly elected justice cast the deciding vote in favor of the coal company.

U.S. Supreme Court Justice Anthony Kennedy wrote that there was "a serious, objective risk of actual bias that required Justice Benjamin's recusal."

Last year's Alabama Supreme Court race took in about $4.6 million in campaign contributions, second only to Texas' $5.3 million, according to the nonpartisan National Institute on Money in State Politics.

In 2006, Chief Justice Sue Bell Cobb won a $13.5 million race, which dwarfed any other high court election nationwide that year and was one of the most expensive judicial races in history.

Cobb, who has supported limiting contributions for judicial campaigns and making the races nonpartisan, said many state supreme court justices nationwide will applaud Monday's ruling.

"There is a concern, that I share, that the enormous amounts of money that are required in partisan elections can have a significant impact in the public respect and belief in the impartiality of the courts," Cobb said.

Alabama legal officials agreed that there should be tighter limits on judicial campaign contributions, but they disagreed on whether the U.S. Supreme Court decision means there will be.

Nicholls said it is "awfully hard to say" what effect the ruling will have on state judicial races, since it sets no clear limits on campaign contributions.

"The principle is in place, but the details are still kind of wanting," he said.

John Carroll, dean of Samford University's Cumberland School of Law, acknowledged that Monday's ruling didn't set parameters for which contributions are acceptable and which are not.

"The lower courts are going to have to sort that out," Carroll said. But "what I hope it will mean is that judges will be careful about where their campaign contributions will come from."

White added that special interest groups may self-limit their contributions to avoid forcing recusal.

"If you think this judge is favorable to you, and you give enough money to recuse, you've sort of just wasted your money," White said.
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Justices to Weigh Constitutionality of Controversial Bankruptcy Reform Act
Marcia Coyle, The National Law Journal
06-09-2009

The U.S. Supreme Court has agreed to resolve a long-simmering debate over the constitutionality of provisions in the controversial bankruptcy reform act of 2005 that include lawyers as "debt relief agencies" and restrict the advice they can give to clients.

The high court granted review in two cases, consolidated for argument next term, involving the Bankruptcy Abuse Prevention and Consumer Protection Act and an Edina, Minn., law firm.

In U.S. v. Milavetz, Gallop & Milavetz, the Obama administration is challenging a ruling by the 8th U.S. Circuit Court of Appeals that struck down, on First Amendment grounds, a provision prohibiting debt relief agencies from advising consumer clients "to incur any additional debt when the assisted person is contemplating bankruptcy."

The circuit court said the provision was overbroad and "would include advice constituting prudent pre-bankruptcy planning that is not an attempt to circumvent, abuse, or undermine the bankruptcy laws." The government contends that the provision can be given a narrow construction that avoids the constitutional problem. The provision, the government argues, should be interpreted to forbid only advice that a client take on new debt on the eve of bankruptcy with the intent of abusing the bankruptcy system.

The Minnesota plaintiffs firm Milavetz, Gallop & Milavetz argues that including bankruptcy lawyers in the definition of "debt relief agencies" is unconstitutional as are requirements and restrictions on their advice and advertisements.

The term "debt relief agency" is defined to include "any person who provides any bankruptcy assistance to an assisted person." The law requires them to clearly and conspicuously include in their advertising the statement "we are a debt relief agency." It also requires them within five days of first providing any bankruptcy assistance services to an assisted person to execute a written contract explaining services and fees. (Attorneys say this leaves no extra time for a client who needs to consult with family or friends.)

The 8th Circuit held that attorneys may be debt-relief agencies and that the debt-relief agency provision was constitutional. "When we started this lawsuit, economic times were not bad, but the climate has changed so dramatically that constitutional rights being impinged upon are of even greater concern to consumers," said Milavetz's Chad Schulze, who drafted the firm's petition. "Bankruptcy continues to be a large issue and [the law] restricts our ability to help people try to avoid bankruptcy all together and to give them the financial advice they need."

The high court has a third challenge pending, Hersh v. U.S., in which Dallas bankruptcy attorney Howard Spector is seeking review of the 5th U.S. Circuit Court of Appeals holding that the so-called "gag rule" on advice about additional debt is not unconstitutional.

Similar challenges pending in the lower courts include: Zelotes v. Adams and Connecticut Bar Association v. U.S. in the 2nd Circuit, and Olsen v. Holder in the 9th Circuit. Zelotes was argued in October, the other two have yet to be argued.
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Death Penalty Case Reveals the Blemishes in Alabama’s Courts
By ADAM LIPTAK, The New York Times
June 9, 2009

WASHINGTON - Kenneth B. Trotter had been practicing law for less than a year when an Alabama judge appointed him to assist two more-seasoned lawyers in defending a man facing the death penalty.

After the man, Holly Wood, was convicted in 1994 of murdering his former girlfriend, Mr. Trotter led the effort to persuade the jury to spare his life. The young lawyer came up just short: the jury recommended death by a vote of 10 to 2, the minimum allowed under Alabama law.

Mr. Trotter failed to pursue or present evidence that his client was mentally retarded, though he had a competency report in hand that said as much. In September, a divided three-judge panel of the United States Court of Appeals for the 11th Circuit, in Atlanta, ruled that he had made a strategic decision, not a grave error.

Judge Rosemary Barkett, the dissenting judge, saw it differently.

“An inexperienced and overwhelmed attorney,” Judge Barkett wrote of Mr. Trotter, “realized too late what any reasonably prepared attorney would have known: that evidence of Wood’s mental impairments could have served as mitigating evidence and deserved investigation so that it could properly be presented before sentencing.”

Last month, the United States Supreme Court agreed to hear Mr. Wood’s case. It will give the court a glimpse of Alabama’s capital justice system, which is among the most troubled in the nation. The state lacks a public defender’s office, elects judges for whom death sentences are a campaign promise, pays appointed lawyers a pittance, and sometimes leaves death row inmates to navigate the intricacies of post-conviction challenges with no lawyers at all.

The root problem is money, said Bryan Stevenson, the executive director of the Equal Justice Initiative of Alabama, a nonprofit law firm that represents poor people and prisoners. The lawyers appointed to represent Mr. Wood in 1994 were entitled to a maximum of $1,000 to prepare for the penalty phase of the trial.

“It ought not be a shock to anyone that you get this kind of defense with that kind of funding,” Mr. Stevenson said. “The poor quality of indigent defense is still the ugliest scar on capital punishment in America.”

Mr. Trotter, who now practices insurance law in Washington, would not discuss the case.

But in a 1994 letter to a colleague, Mr. Trotter said he was anxious and lost. “I have been stressed out over this case and don’t have anyone with whom to discuss the case, including the two other attorneys,” Mr. Trotter wrote.

There was little doubt that Mr. Wood would be convicted, said Cary L. Dozier, the lead lawyer on his defense team.

In September 1993, three weeks before Mr. Trotter was admitted to the bar, Mr. Wood broke into the home of his former girlfriend, Ruby Gosha, and killed her with a shotgun blast to her head while she was sleeping, the authorities said. Soon afterward, according to testimony from a cousin, Mr. Wood admitted to shooting Ms. Gosha, saying he had “blowed her brains out and all she did was wiggle.” Mr. Wood was the father of one of Ms. Gosha’s children.

Mr. Dozier said an acquittal was out of the question once Mr. Wood’s cousin testified. “His cousin basically slammed the door on him,” Mr. Dozier said.

Mr. Dozier added that money had played no role in how the case was handled. “If I was appointed to represent someone,” he said, “I done as well for somebody as if he was a paying client. We did the best we could.”

After the jury found Mr. Wood guilty, it turned to the question of the proper punishment. Mr. Dozier said his young colleague had performed capably in presenting the case for leniency. “I thought Ken had done a good job,” he said.

The defense team had a report that described Mr. Wood as competent to stand trial. The report also noted that Mr. Wood’s I.Q. was “in the borderline range of intellectual functioning” and that he read at a third-grade level.

Mr. Trotter did not pursue that point at the sentencing hearing, though evidence of mental retardation was a factor the jury could have considered as favoring leniency.

“Wood’s counsel were well aware that his intelligence is impaired,” Alabama’s attorney general, Troy King, wrote in the state’s brief filed with the United States Supreme Court in April, “and they made a reasonable strategic decision not to present that evidence.”

After the Supreme Court’s 2002 decision in Atkins v. Virginia, which barred the execution of the mentally retarded, a state judge ruled that Mr. Wood was not retarded. True, the court said, his I.Q. was around 64, less than the score of 70 that Alabama law views as “significantly subaverage intellectual functioning.”

But Alabama, like other states, does not rely solely on I.Q. in determinations about retardation in capital cases. It also looks at whether the defendant possessed fundamental practical skills.

The state judge noted that Mr. Wood had held jobs that used heavy machinery, managed his own money, planned and cooked meals, and subscribed to Hot Rod magazine.

Those findings were drafted by the prosecutors and adopted verbatim by the judge. That curious practice is widespread in Alabama trial courts.

“The problem in Alabama is that there are effectively no state court judicial decisions,” Mr. Stevenson said. “Decisions are made by prosecutors who write orders sometimes over 100 pages that are simply adopted by trial court judges.”

The practice is “subject to criticism,” a state appeals court in Mr. Wood’s case said mildly. But it upheld the determination that Mr. Wood was not retarded for the purposes of Atkins. “Even when the court adopts proposed findings and conclusions verbatim,” the appeals court said, “the findings are those of the court and may be reversed only if clearly erroneous.”

Still, the question of whether Mr. Wood was categorically barred from being executed is different from whether evidence of his mental limitations should have been presented to the jury considering his sentence.

At a hearing on a state-court challenge to Mr. Wood’s death sentence, Mr. Trotter testified that the jury’s 10-to-2 vote had been heartbreakingly close. “I felt like if I could have done just a little more,” he said, “that maybe it could have been 9-to-3, and that that would have been enough.”
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Nationwide, public defender offices are in crisis
By DEBORAH HASTINGS, The Associated Press
June 3, 2009

It wasn't the brightest decision she'd ever made. She admits that. But if she'd had enough money to hire a lawyer she might not have lost six months of her life.

Kimberly Hurrell-Harring, a certified nursing assistant and mother of two, had driven 7 1/2 hours to visit her husband and then secreted a small amount of marijuana in her private parts. He'd pleaded with her on the phone to bring it, saying he needed to get high in this awful place.

He was calling from a maximum-security prison, and someone must have been listening because when she walked into the Great Meadows Correctional Facility in upstate New York, guards immediately yanked her to the side.

They told her things would go easier if she handed over the dope without a fuss. She did, and things immediately got worse.

With a swiftness that made her head spin, she was handcuffed and hauled to jail. At her arraignment, there was no public defender available. Standing alone, she was charged with one felony count of bringing dangerous contraband into a prison.

And so she tumbled headlong into the Alice-in-Wonderland chaos of court-appointed lawyers, where even those lawyers say there is little time for clients. There are simply too many and not enough hours in the day.

"If you can't afford an attorney, and you fall into the criminal justice system, you are really, really screwed," said Demetrius Thomas of the New York American Civil Liberties Union.

Especially now. The spiraling recession and overwhelmed public defenders, some of whom have rebelled by filing lawsuits to reduce caseloads, pose one of the greatest challenges to the system since the U.S. Supreme Court in 1963 overturned the petty larceny and breaking-and-entering convictions of Clarence Gideon, a poor Florida man tried without a lawyer. In a landmark, unanimous ruling, justices said state courts must provide attorneys to every criminal defendant unable to afford counsel.

After her arraignment, Hurrell-Harring went back to jail because she couldn't afford bail, either. Three weeks passed before a public defender appeared, and she says she spent a total of 15 to 20 minutes with him before her sentencing hearing.

He told her not to fight the district attorney's recommended punishment — six months behind bars and five years of probation. It was the best she could hope for, he said. But she had no criminal record. Surely, she begged, couldn't possession of less than an ounce of pot, a misdemeanor under other circumstances, be bargained down to probation?

"It was like he had no time for me," she says now, still unemployed 17 months after her release because she lost her nursing license when she became a convicted felon. "He told me to plead guilty."

The accused, their lawyers, and even prosecutors agree that courts increasingly neglect their constitutional duties. In a series of Capitol Hill hearings, the latest scheduled for this week, Congress members are struggling to grasp the enormity of the crisis. But the options are far from clear, particularly when virtually every state and local government is crying poor.

Meanwhile, defendants suffer.

In Georgia, a man accused of murder spent eight months without a lawyer because the state's public defender office couldn't afford one. In Washington, an appeals court awarded $3 million to a man falsely accused of child molestation who was jailed for seven months because his public defender failed to investigate the case.

There are open lawsuits in at least seven states — including populous New York, Florida and Michigan — where overburdened defenders claim those presumed innocent until proven guilty are routinely denied their right to an attorney. Their suggested remedies: capping the number of cases assigned to them and completely overhauling state systems.

In April, the bipartisan, nonprofit Constitution Project released a phone-book-sized report titled "Justice Denied," a national review of court-appointed lawyers. The five-year analysis, the most comprehensive look at indigent defense in decades, said many states fail terribly in their constitutional duty to provide lawyers for the poor.

"Sometimes counsel is not provided at all, and it often is supplied in ways that make a mockery of the great promise of the Gideon decision," said the report signed by former Vice President Walter F. Mondale and former FBI Director William S. Sessions. "The call for reform has never been more urgent," the study said.

In May, a major reform battle was lost by court-appointed lawyers in Florida's Miami-Dade County. An appellate court harshly rebuked and reversed a lower court ruling that allowed the public defenders' office to refuse certain felony cases because it faced funding cuts and crushing workloads. Under the initial ruling, attorneys would have been brought in from a smaller state office and from private firms, which would have increased costs.

Reform advocates said the decision was history repeating itself.

"In the 1960s, the state of Florida believed Clarence Earl Gideon could get a fair trial without the guiding hand of counsel," said David Carroll, research director for the National Legal Aid and Defender Association. "Today, the assumption is that a poor defendant in Florida can get equal justice. They were wrong then and are wrong today."

But even in the best of times, public defenders say a quick plea bargain is sometimes as good as it gets. Court-appointed lawyers often have only seconds to whisper with clients they've just met — before standing while a judge sets bail.

Their days are spent like emergency room doctors performing triage. The worst cases get the most attention, the lesser cases wait the longest. Pleas are shuffled like prescriptions — take this, it's a good deal. Plead guilty, settle for time served. No, going to trial won't prove you innocent, it will get you convicted.

The pay is awful and so are the hours.

Hurrell-Harring's court-appointed attorney is a case in point.

For a yearly salary of $54,000, Patrick Barber juggles between 100 and 120 cases in his Washington County, N.Y., office — on top of his private practice. Between himself and four part-time defenders, he says they represent 1,661 cases.

He agrees with his former client. He doesn't have much time to visit clients. It's not possible to see every defendant, he said. Many have no car, and can't get to his office. Others are in jail, and he simply can't get to all of them, he says.

Barber claims he did the best he could for Hurrell-Harring.

"She couldn't have been charged with a misdemeanor because it wasn't offered. It wasn't going to be offered. The district attorney takes a very hard stance when it comes to prison contraband," he said.

Hurrell-Harring, 33, doesn't much care about Barber's caseload, and she has two pending legal actions over her incarceration.

In one, she's part of a class-action lawsuit filed by the New York Civil Liberties Union against the state, accusing it of "persistent failure" in providing legal services to the poor.

In the second, she's asked the appellate division of state Supreme Court to reduce her conviction to a misdemeanor because of inept legal representation, and because a recent appellate ruling said a small amount of pot did not qualify as "dangerous contraband" in prison settings and should be charged as a misdemeanor.

If the court agrees, Hurrell-Harring could get her nursing license back. She is living with her mother, who suffered a recent stroke, and her two girls, ages 5 and 18. She's getting by on Social Security.

Poor people like her constitute about 80 percent of criminal defendants. And in bad economic times, crime rates increase, legal researchers say, adding more weight to the groaning system.

In troubled Miami-Dade County, the public defenders office has lost 12 percent of its budget in the last 18 months, while the average felony caseload per lawyer increased from 367 to 500 over the past three years. The maximum number of cases an attorney should carry is 200, according to Florida's public defender association. And that's a conservative number — the Constitution Project study suggested 100 cases per lawyer is too many.

In April, New York became the first city to cap the number of criminal cases juggled by public defenders. Tucked inside the state budget bill, the law requires that standards be established by 2010, and phased in over the next four years as funding permits.

But like other legislation, it has been criticized for not going far enough.

"A major metropolitan area in our country is finally willing to enforce caseload standards," says Carroll. "But if you look at it, it says at some future date some standard will be enforced, if there's money to do it.

"How can you say someone in New York City deserves a reputable lawyer, but if you're in Buffalo, sorry? It's really not doing anything to help the indigent defense crisis," he said.

In some areas, attorneys say overhauling the system could actually save government money.

The Michigan Appellate Defender Office, for example, saved nearly $3.7 million in prison costs by correcting four years' worth of sentencing errors.

"You don't have to just throw money at it," said Carroll. "We could just allow law enforcement more leeway in deciding whether to issue a citation or arrest someone."

Hurrell-Harring, of course, wishes she had been given a ticket instead of six months in prison. But then she is asked what possessed her to smuggle a controlled substance into a state prison?
"I asked myself the same question," she says, matter-of-factly. "But let's be honest, we all did things for men that we shouldn't have did. I bet it's happened to you."
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Alabama Chief Justice Sue Bell Cobb torn between bench, call to governor's office
Pressure on to run, remain chief justice
CHARLES J. DEAN, The Birmingham News
May 29, 2009

Alabama Chief Justice Sue Bell Cobb on Thursday said she was torn between her current job and the lure to seek the state's highest office.

"In the past month, I have been torn between those who encourage me to run for governor, and those who want me to continue my work as chief justice," Cobb said in a prepared statement. "At this point, I'm not ready to make a decision, and it is too important, not only for my family and me, but more significantly for the state I serve, to make it in haste."

Cobb said she would continue to seek advice from people across the state about what she should do. She has come under pressure in the past six weeks to run for the Democratic nomination for governor.

That pressure has been applied by powerful interests in the party who are afraid the Democratic front-runner, U.S. Rep. Artur Davis, will not only lose the governor's race, but will endanger the election of other Democrats down ballot.

At the same time, Cobb has come under pressure from others in the party, especially long-time financial supporters such as trial lawyers who don't want to see her step down from the high court, where she is the only Democrat. Cobb would have to surrender her court seat if she runs, a move that would allow Republican Gov. Bob Riley to appoint her successor.

Cobb, who went from law school graduation and passing the bar to appointment as a judge in Conecuh County as a young woman, has spent nearly 30 years on the bench, a career that seemed very much on her mind Thursday.

"The legal system of Alabama has been my home for nearly 30 years. It would be hard to leave that home, and its future is more important than my own," Cobb writes.

"As governor, however, I could do even more to help Alabama's children, by working to end child abuse and neglect and to change the priorities in Montgomery so that we focus on creating jobs and improving our schools. Right now, I am not certain that the needs of the next generation always come before concerns of the next election."

Bradley Moody is a political scientist at Auburn University in Montgomery, a long-time observer of state politics and someone who knows and has supported Cobb.

"I think she's torn personally and politically," Moody said. "She starts with a sincere desire to serve the state and she knows as governor she would have a much greater opportunity to do that. On the other hand, there are no guarantees that if she leaves the bench she will be elected governor and she knows she has significant opportunities as chief justice to do things that matter."

Powerful forces:

Moody said Cobb is caught between powerful forces who don't necessarily care about her as much as they do their own political interests.

"Politically, she's torn between groups like the trial lawyers who have supported her and want her to stay put and then groups, like AEA (Alabama Education Association), who care about who is governor, yes, but who care more about who is in the Legislature and they think she would be better at the top of the ticket."

David J. Lanoue is a professor and chairman of the political science department at the University of Alabama. He said Cobb's statement is unusual and probably an effort aimed more at trying to help her determine support than an exercise in hand-wringing.

"I believe politicians do what they do for a reason and I don't think Judge Cobb is just saying, `Well, I can't make up my mind.'"

Lanoue said Cobb may be trying to telegraph possible supporters to hang loose, don't commit their support and dollars to any other candidate right now.

"It may also be a way to stir up support, especially a show of public support from those who want her to run privately but haven't said anything publicly," Lanoue said.
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