Alabama appeals courts [Editorial]
The Birmingham News, October 31, 2006
THE ISSUE: Alabama voters have 10 important choices to make about our state's appellate courts.
The decision about who sits on our appeals courts is an important one; ask anyone who has been arrested, sued, divorced, stiffed on a debt, affected by government actions, hurt on the job or injured in some other way. These courts often get the last word on cases affecting our money, our freedoms and our lives.
That's why it's so important we choose people of integrity to serve as appellate judges, people who will approach cases fairly, with no bias and no agenda except to follow the law.
The Nov. 7 ballot includes 10 contested appellate races.
Four are on the nine-member Supreme Court, which hears appeals on criminal cases and civil cases involving more than $50,000, as well as disputes from the Public Service Commission. Three races involve the Court of Criminal Appeals, which hears cases involving everything from serious felonies to misdemeanors to violations of city laws. The other three races are on the five-member Court of Civil Appeals, which hears appeals on cases involving workers' compensation, domestic relations, administrative actions by state agencies and civil cases with amounts up to $50,000.
Our recommendations:
SUPREME COURT
Chief justice
Voters have a choice between two strong candidates - candidates who are much better than their mean-spirited campaigns would suggest.
Democrat Sue Bell Cobb has not just been a capable judge for a quarter century, including 12 years on the state Court of Criminal Appeals. She also has been a leader in developing and promoting improvements in the justice system, and she has been a particularly strong voice on children's issues. She would be an able and innovative chief justice.
Our choice, though, is Republican Drayton Nabers, who has served as chief justice since 2004. Gov. Bob Riley appointed him to the job after former Chief Justice Roy Moore was removed from office for disobeying a federal court order to move a Ten Commandments monument from the rotunda of the state court building.
Even under these difficult circumstances, Nabers has performed the job well. As a former state finance director and chief executive officer of Protective Life Corp., Nabers is especially well-suited to administer Alabama's court system, which is a big part of the chief justice's job.
He is a competent judge and a person of integrity, although that hasn't been reflected in his savage campaign against Cobb. We recommend Nabers, hopeful he will put his ample leadership skills and connections to good use to address some of the systemic problems in our court system, from the need to ensure better legal representation for poor defendants to the need to restore sanity to the processes for investigating and punishing wayward judges.
Associate justice, Place 2
Republican Tom Woodall is the clear choice. The former Jefferson County circuit judge has served on the Supreme Court since 2000, and he has a well-deserved reputation for integrity and independence. Woodall's solid work ethic and judicial fairness have earned him another term. We strongly recommend him.
Associate justice, Place 3
Although both candidates in this race are qualified, we prefer Republican Lyn Stuart. A former district and circuit judge from Baldwin County, Stuart won a seat on the Supreme Court in 2000. Her varied experience, particularly in criminal work, has been valuable to the court.
Associate justice, Place 4
Voters in this race have two impressive choices and can't go wrong either way. Democrat John England has been a judge for 13 years, including two years on the Alabama Supreme Court. His work is solid, and his experience in criminal law would be a plus for the court now. Our recommendation goes to Republican Glenn Murdock, a Birmingham lawyer who currently serves on the Court of Civil Appeals. Murdock is known for his scholarly work; while he lacks experience in criminal law, he has shown a willingness to immerse himself in cases, learn the issues and reach the right decisions.
COURT OF CRIMINAL APPEALS
Place 1
Again, voters are blessed with two great choices. Democrat Aubrey Ford has been a longtime district judge in Macon County and would serve the state well on the criminal appeals court. But actual experience on the court gives Republican Greg Shaw the edge. Shaw, who grew up in Birmingham, worked as a staff lawyer for two former Supreme Court justices before being elected to criminal appeals in 2000. He has earned a second term.
Place 2
Republican Kelli Wise also has our recommendation in her re-election bid. She worked as a staff lawyer for state appellate judges and has served on the criminal appellate court since 2000. Although her opponent has far more experience as a lawyer, Wise has experience as a judge.
Place 3
Both candidates have great experience and the right disposition to serve as an appellate judge. The Democrat, Deborah Bell Paseur, has been a highly respected district judge in Lauderdale County for 25 years and would do well on the court. It's a tough call, but we recommend Monroeville Republican Sam Welch, who has been a circuit judge as well as a district and municipal judge. Although both candidates impress, Welch's breadth of judicial experience gives him a slight edge.
COURT OF CIVIL APPEALS
Place 1
Voters can go either way in this race and not make a mistake. While we recommend Republican Terry Moore, Democrat Ray Vaughan is experienced and would be a fine addition to the court. What gives Moore a leg up on Vaughan is his extensive knowledge of workers' compensation law, a major area of concern for this court. As Moore's campaign literature says, he "wrote the book" on Alabama's workers' compensation laws, a treatise regarded as the authority on the subject.
Place 2
Incumbent Craig Pittman, a Republican, is the much better choice. He has far more experience than his opponent, having practiced law for 19 years and served ably on the court since 2000.
Place 3
We strongly recommend Democrat Jim McFerrin in this race. Questions have been raised about his opponent's family's ties to Ku Klux Klan groups. Even if that weren't the case, McFerrin would be a solid choice. The Birmingham lawyer has significant experience in the kinds of cases that go before the court, and is well-regarded particularly in the area of workers' compensation.
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State Supreme Court [Editorial]
Huntsville Times, October 27, 2006
Five seats are on the Nov. 7 ballot; four are contested
For more than a decade now, the Alabama Supreme Court has been the focus of a bitter struggle between two powerful interests - the business community and trial lawyers.
At the moment, every member of the high court is a Republican. But at some point the pendulum may swing back the other way. Thus, the excessive campaign spending by Supreme Court candidates continues.
Alabama doesn't need a court identified with special interests. Alabama needs a court that is marked by superior judicial judgment and by members whose fairness and independence are beyond question.
Five seats for the state's highest court are on the Nov. 7 ballot. One of them, Place 1, has only one candidate, incumbent Justice Champ Lyons Jr., a Republican.
The other four are hotly contested.
For chief justice, longtime Criminal Appeals Court Judge Sue Bell Cobb is running against Republican Chief Justice Drayton Nabers, who was appointed to the post by Gov. Bob Riley in 2004 after former Chief Justice Roy Moore was removed from office.
Nabers was Riley's finance director at the time. As chief justice, he has brought his background in business and has greatly improved the efficiency of the court.
Cobb, however, has 24 years of experience on the bench, which is an important qualification for a chief justice. She has been an active advocate for children and families. The fact that she is the only Democrat now serving on the three appellate courts speaks to her broad appeal and her independence.
The Times recommends Sue Bell Cobb for chief justice. A bipartisan court made up of serious, thoughtful justices may well help to end the court's unwitting position as a special-interest battleground.
For Place 2 on the Supreme Court, incumbent Republican Tom Woodall is opposed by Democrat Gwendolyn Thomas Kennedy.
Woodall has served on the court since 2000. Earlier this year, he broke a gentleman's agreement among justices and spoke out against the lack of production by fellow Justice Tom Parker. At the time, Parker was running for chief justice.
Woodall took the risk a principled man must take.
The Times recommends Tom Woodall. On his Web site, he says, "I believe the role of a judge is to respect and comply with the law, and to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary. My philosophy is simply one of fairness." In our view, that says it all.
For Place 3, incumbent Republican Lyn Stuart is facing a challenge from Democrat Albert L. "Al" Johnson. Like Woodall, Stuart has extensive judicial experience and has served on the high court since 2000. She stresses "common sense" in her approach to the law, an attitude most Alabamians probably share.
The Times recommends Lyn Stuart. Her work has been solid.
For Place 4, neither candidate is an incumbent. Running as a Democrat is former Supreme Court Justice John H. England Jr. The Republican candidate is longtime appellate Republican Judge Glenn Murdock.
The Times recommends John H. England Jr. He has served on the court before and is widely respected in legal circles. He is an African-American and would bring to the court some much-needed diversity.
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Cobb best of 2 good choices for Alabama chief justice [Editorial]
The Decatur Daily, October 27, 2006
Alabama is fortunate to have two strong candidates for chief justice of the state Supreme Court.
Democrat Sue Bell Cobb, while the younger candidate, is also the most experienced. She has been on the bench since 1981, currently serving on the Court of Criminal Appeals. She has held leadership positions in several judicial organizations, most involving the juvenile justice system.
The Evergreen native has a down-home approach that we think will help draw the Supreme Court from its ivory tower in Montgomery. She proposes numerous reforms, almost all of which hold judges more accountable and increase the public’s access to the courts.
That said, Republican Chief Justice Drayton Nabers has done an outstanding job during his two years in office. Gov. Bob Riley appointed him to replace ousted Chief Justice Roy Moore. Mr. Nabers could not have taken the reins at a more difficult time. The court was in a shambles. Its 2,000 statewide employees were demoralized. Poor organization left the court behind most states in technological advancement.
Chief Justice Nabers came into this situation without judicial or trial experience. What he did have was management experience, and he has used his skills in that area to transform the state court system into one of the most efficient in the nation. Technologically, the court is fast becoming the most advanced in the United States.
Whether Judge Cobb can continue Mr. Nabers’ record of organizational reform is an unknown, but she has proven to be a good jurist. Her efforts to reach out to the people will help deflect the Supreme Court’s reputation for pro-business activism.
The people of Alabama won’t lose this race, regardless of the outcome.
THE DAILY recommends Judge Sue Bell Cobb as chief justice of the state Supreme Court in the Nov. 7 general election.
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Poll: Americans don't want politicians constraining judges
October 28, 2006
(CNN) -- Despite politicians' complaints about judges having too much power, two-thirds of Americans do not believe elected officials should have more control over federal judges, according to a new CNN poll released Saturday.
Sixty-seven percent of 1,013 people surveyed by Opinion Research Corp. on behalf of CNN said federal judges -- and the decisions they make -- should not be subject to more control.
Only 30 percent said they should.
Both a current and former Supreme Court justice told CNN they are not unaware of the criticism aimed at them, but they said such criticism is an integral part of life in a democracy.
"As I went through the last few years of service here at the court, I saw increasing indicator of unhappiness with judges," said retired Justice Sandra Day O'Connor.
But that unhappiness is a consequence of an independent judiciary, said Justice Stephen Breyer.
"It comes from the necessity that someone have the last word. And since for 200 years, people have thought in this country that the best guarantee that minorities will not be oppressed, that the Constitution will be lived up to, is to give the very last word to a group of judges who are independent," he said.
"Not because they are wiser -- they make mistakes -- but because, by giving them the last word, there is a better guarantee of that neutrality, insulated from politics, that can help those whom the Constitution wanted to help, that minority that might be oppressed."
Forty-one percent of poll respondents said federal judges were "about right" in their decisions. Thirty-four percent said they are too liberal, and 20 percent said they are too conservative. The sampling error for the poll questions was 3 percentage points.
"The fact is, once I'm appointed, I'm not a judge for one group or another group," Breyer told CNN. "And when I write a dissent or when I write a majority [opinion], the people that disagree with me the most, I'm their justice, too. I have to remember that. I can't write in a way that will please [everybody]. I know I can't. It's a big country."
But, Breyer said, America's strength comes in part because of our ability to follow even the most hotly contested rulings.
“We've learned as a nation to follow decisions even when we think they're wrong," he said. "And in a country of 300 million people and ... 900 million points of view, that is a national treasure.”
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Court launching program of à la carte legal services
The Springfield Republican, October 31, 2006
By MARLA A. GOLDBERG
SPRINGFIELD MASS. - The Hampden Division of Probate & Family Court will launch a new program tomorrow, enabling people to buy one legal service at a time from lawyers trained to provide limited representation.
The program may be helpful to parties in paternity, divorce, child custody and estate cases who can't afford a lawyer long-term, but need occasional aid, court officials said. Litigants can hire a lawyer for one-time advice, to file a complaint, write a motion, appear at a single hearing, or just at trial.
"In a sense, it's a menu," said Probate & Family Court Chief Justice Sean M. Dunphy last week. The 18-month "limited assistance representation" pilot program will launch in just Hampden and Suffolk counties, which both have large numbers of unrepresented litigants, Dunphy said.
The state Supreme Judicial Court recently issued an order allowing lawyers to "ghostwrite" family and probate court motions in the two counties. The move represents a fundamental shift by the court, said Massachusetts Bar Association President Mark D. Mason, of Cooley, Shrair in Springfield. "Ghostwriting, to date, has been forbidden," he said yesterday.
More than 400 lawyers statewide have been trained on the issues and procedures involved, Dunphy said. The group includes about 50 Hampden County lawyers, said Family Law facilitator Lori A. Landers, who directs the program at the Hampden Division of Probate & Family Court.
The court, on the fourth floor of the Hall of Justice at 50 State St., will have program information and a list of trained lawyers available at the front desk, Landers said.
The program doesn't include subsidies to help people pay lawyers, who set their own rates as usual, Landers said. Many area lawyers charge $150 to $200 per hour, she said, adding that some are offering flat fees for services, or might handle certain matters pro bono.
Parties might benefit most from meeting with a lawyer when their case begins, Landers said, so the lawyer can set out realistic goals and guidelines, or help bring about settlement.
In the past, for a lawyer to help a client, they had to file an appearance and sign any document they drafted, Mason said. Now, under the Supreme Judicial Court order for Hampden and Suffolk counties, a lawyer only needs to note "prepared with the assistance of counsel," on documents. The order also includes forms for filing and withdrawing "limited" appearances.
Mason said such programs operate successfully in several states, including Maine, Florida, California and states in the Southwest.
However, there are pros and cons to consider, Mason said. In complicated cases, where divorce, custody and financial issues are deeply entwined, limited assistance may not be enough. À la carte services "should not replace the depth of thought and counsel" that fully retained lawyers provide in complex domestic cases, Mason said.
Ruling could keep DuBose off bench
By ANDY NETZEL
Mobile Press-Register, October 21, 2006
A deal struck with a southwest Alabama circuit judge candidate in a disciplinary action concerning his handling of a will does not penalize the candidate harshly enough, the state's highest court ruled Friday.
The Alabama Supreme Court's decision could cost Stuart DuBose his would-be judgeship -- all because he wrote a will for a man he never met.
The rejected deal would have allowed DuBose -- the unopposed Democratic candidate for the circuit court that covers Choctaw, Clarke and Washington counties -- to serve a suspension between the Nov. 7 general election and the date he would be sworn in.
Now, he'll again have to face the Alabama State Bar disciplinary commission. If he's found guilty of the complaints and given a suspension of his law license that overlaps either of those two dates, he will not be qualified to serve as judge, according to the Alabama Constitution.
The dispute stems from a 2003 estate case in which DuBose was the attorney.
In that case, Cheryl Weaver visited DuBose and asked him to draw up a will for Joseph J. Sullivan. Weaver, Sullivan's caretaker, informed DuBose the man was dying and wanted to leave his entire estate to her.
He drafted the will, but never met with the dying man. He also drafted a certificate of competency for Weaver to have signed by the man's doctor.
According to court documents, Weaver soured on DuBose shortly after Sullivan died. After DuBose clarified in a letter that his cut of the estate was a fee of 40 percent, or about $1.2 million, she fired him as her attorney and tried to drop him as the estate's lawyer.
Weaver then sued him, accusing him of acting inappropriately, including legal malpractice, misrepresentation, negligently administering the estate and capitalizing on the death by designating himself both the attorney for the estate and Weaver without ever informing her of a potential conflict of interest. That case was tossed out.
When the dispute over the estate was settled, a judge ruled the $1.2 million in fees was "reasonable and necessary" and allowed DuBose to remain the executor of the will.
The Alabama State Bar, however, took him up on similar charges.
DuBose submitted a conditional guilty plea to the bar's disciplinary bar. He said earlier this month that it was a move made to put the matter behind him, preserving his ability to serve as judge.
DuBose did not return a phone call seeking comment on Friday.
The Supreme Court's ruling, in which the punishment was "denied for insufficiency of discipline," passed 8 to 0. Justice Patricia M. Smith was the only justice of the nine-member court not to sign the order, which was released Friday.
Jeremy McIntire, assistant counsel for the state bar, said he could not comment on the case because it is again confidential now that it has been sent back to the bar.
Tony McLain, the bar's general counsel, said earlier this month that the punishment agreed to by DuBose was far stiffer than most given by the commission. The only harsher punishments the bar has at its disposal is a longer suspension or disbarment, he said.
He also said the bar cannot sanction judges. So, he said, part of the reason the bar was eager to accept the deal was to get the sentence in place while DuBose was still a practicing attorney.
The Constitution does not appear to spell out what would happen if DuBose cannot be a candidate. Secretary of State Nancy Worley did not return a phone call seeking clarification.
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Gambling money, false ad claims fly
Wednesday, October 25, 2006
ERIC VELASCO, Birmingham News
Alabama's Supreme Court chief justice race is boiling, with incumbent Drayton Nabers Jr. accusing challenger Sue Bell Cobb of taking gambling money, and Cobb claiming Nabers was forced to pull a false ad.
The nation's most expensive state Supreme Court race is getting more expensive. Both sides in the tight race plan more TV ads for the final two weeks before the Nov. 7 election. So far, Cobb and Nabers have spent almost $2 million on TV ads, according to the Brennan Center in New York, which tracks ad spending in court races nationwide.
The candidates promise clean campaigns but accuse each other of violating the pledges.
"The negative ads are going to continue," said Larry Powell, professor of communications at the University of Alabama at Birmingham and a former political consultant. "The only question is: Are they going to continue right up to Election Day?"
Tuesday, Cobb renewed her call for Nabers to sign a State Bar of Alabama committee agreement on ethical campaigning. She also said she was disgusted by Nabers' television ads.
"The people of Alabama are sick of this and we are, too," said her campaign manager, Sabrina Lofton. "We will continue our message of qualifications and experience, because that's what this race should be all about."
Nabers' campaign responded by accusing Cobb of violating judicial ethics in her own TV ads by lying about her opponent. Nabers issued his own pledge to run an ethical campaign but reserved the right to respond to attacks.
"It is the height of hypocrisy to talk about campaign pledges when they are knowingly running ads that are untruthful," said Nabers' campaign manager, Clay Ryan. "We consistently offer hard evidence in our campaign ads. I have yet to see that from Judge Cobb's campaign."
Gambling money:
Nabers' latest ad says Cobb accepted money from gambling interests - Birmingham Race Course owner Milton McGregor; the Poarch Creek Indians and PCI Gaming, which run three Alabama casinos; and Greenetrack, which offers video gaming.
Cobb received at least $34,000 from those sources, directly or through political action committees run by lobbyist John Teague, Nabers' camp said Tuesday. That figure includes almost $8,000 of office space from Jemison and Mendelsohn, a law firm that has represented the Poarch Creek Indians and whose principal partner, Mays Jemison, is treasurer for Poarch PAC.
David Browne, Cobb's media consultant, said it is hard to link PAC contributors to the candidates.
"Who else gave them money?" he said. "We got a check in the mail. Honest to goodness, we don't know who gave money to those PACs."
Ryan, Nabers' campaign manager, said the gambling connection in some cases "is crystal clear." For example, from April to July, Teague's Please PAC received $20,000, all from Greenetrack, PCI Gaming and Poarch PAC, state campaign disclosure forms show. Please gave $5,000 to Cobb in late June and sent the rest to other PACs.
Ryan said Nabers' campaign returned a $12,500 contribution two weeks ago from a PAC run by lobbyists Joe Fine and Robert Geddie, which had received $100,000 from McGregor. "As soon as we learned we had possibly received gambling money, we returned it and we plan to return any contributions like it," Ryan said.
Disputes ad pull:
Ryan also disputed the contentions in Cobb's newest ad that Nabers had to pull a TV ad because it was false. The ad, which was about differences between Cobb and Nabers, actually had ended its run time, he said.
Cobb's ad also said Nabers' campaign is "backed by millions in oil money" while flashing the figure $990,000 on the screen. Ryan said that was a false link to the $990,000 in TV ads the American Taxpayers' Alliance ran before the June primary, which mostly promoted Nabers.
Nabers has said his campaign had nothing to do with the ATA ads, and he disavowed them.
Browne pointed out that, while the ATA has not disclosed donors for the pre-primary ads, it has received money in the past from energy companies and from a Maryland race track.
Powell of UAB, the former political consultant, said the mudslinging may continue until the election.
"Traditionally they go positive the last weekend so voters can get the negative taste out of their mouths," he said. "But that may not happen this time. Both sides have the money, and it's a hotly contested race. The polls I've seen say it's too close to call."
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Nabers touts his leadership abilities
By Eric Fleischauer, DECATUR DAILY
October 24, 2006
Chief Justice Drayton Nabers talks a lot about administration, not so much about judicial philosophy. That's in part because ethical rules preclude him from talking about pending cases, but it is also in part because of his passion for administration.
Nabers is running for his first elected term as chief justice. His opponent is Sue Bell Cobb, a Democrat.
Gov. Bob Riley appointed Nabers, a Republican, to the state Supreme Court at one of the lowest points in its history. He replaced Chief Justice Roy Moore, deposed because he ignored a federal order to remove a Ten Commandments memorial that Moore put in the State Judicial Building.
Taking care of business
Interviewing Nabers is like taking a course in business management. His passion is maximizing the potential of his people, and on the Supreme Court he has 2,000 of them.
"When I got there, the whole system was demoralized and in disarray. We made the decision that we were not going to solve the problem by adding people, we were going to solve it by adding technology," Nabers said in an editorial board meeting with THE DAILY on Monday.
"We've got a bounce in our step at this point," Nabers said. "There's life in the organization. There's a little pride in the outfit, none of which existed a couple years ago. Nothing is more rewarding to me than that. I just love to be a part of bringing life to an outfit."
After 22 years at Protective Life Insurance Co., rising to the positions of president, chief executive officer and chairman of the board, management theory is his obvious forte.
"What any organization should have at the core of its soul is being sure that anyone related to it is equipped and empowered as much as they can be. ... The chief justice needs to be a leader. The 2,000 employees need to be motivated. They need to be challenged. We need to bring out the best in every single one of them. It's a tragedy if we don't."
The challenges in public service, he said, are greater than those in a private company.
"In the private sector, you have tools of management, relating to incentives and so forth, that you don't have in government," Nabers said. "The judges that are part of the system are elected. Clerks are elected."
The leadership ability needed to motivate those officials, he said, is the starkest contrast between him and his opponent, Cobb.
Roe v. Wade
While his passion may be management, and while he is steadfast in his refusal to comment on cases that are or may end up on his docket, he has strong feelings on the U.S. Supreme Court's Roe v. Wade decision.
"Non-elected judges should not be making major policy decisions when not required to do so under the plain words of the Constitution," Nabers said. "Roe v. Wade essentially said that people of the respective states ... could not protect the unborn. That's a policy decision. There was nothing in the Constitution that mandated that."
Nabers wrote a book, "The Case for Character: Looking at Character from a Biblical Perspective." It's a powerful and deeply Christian book, and he acknowledged that he wrote it in part because of upcoming elections.
"You want to know the truth, don't you? That book was in my soul. ... I think it's a legitimate question you ask, if that book would have been written if I did not also feel a need to identify myself to Alabama voters," Nabers said. "If you want to look at it in a spiritual way, I think that was one of the motives for writing the book. So Alabama voters could get to know me better."
Balancing work, family
In the book, Nabers queries whether his workaholic tendencies have been selfish in that they have been for self-achievement at the expense of family.
"What debt have I left unpaid to those closest to me," he wrote, "as I have striven to achieve for selfish purposes and rewards?"
He said that sentiment did not dissuade him from running for office, but it affected how he is campaigning.
"I told my campaign team that, in the campaign, I would have dinner with my wife six nights a week," Nabers said. "They had to get somebody else or live with that. I've been able to do that with a couple exceptions. If I'm not campaigning, I'm at home every night. And that is important, very important, to me."
He said the job of Supreme Court chief justice impinges on his family life much less than campaigning.
"I'm quite aware of the sacrifices my wife is making by having this job," he said. Then, laughing, "I think she's quite aware of those sacrifices, too. She's pleased for me to have the job. She's not pleased with me to go through the campaign. But you can't have one without the other.
"I think I've gotten the balance in such a way that my wife has a quality of married life," he continued, "even though I got this job."
Battle of TV ads
Nabers and Cobb have engaged in an expensive and often vicious battle of television ads. Asked if he felt good about his ads, Nabers was evasive.
"My TV ads are responding to the TV ads of my opponent. Yes, they are fair and truthful." But do you like them, he was asked. "The ads are fair and truthful." But do you feel good about those ads?
Nabers paused for a long time, fidgeting as he stared at the ceiling.
"Yes," he said finally. "I want the people of this state to get to the truth, and they can't get to the truth unless the candidates talk openly and freely. That's what we're doing with our ads."
Nabers said the Supreme Court has made huge advances since Riley appointed him to replace deposed Chief Justice Moore in terms of morale, technology and organization.
"The voters of this state need to determine whether we need to change," he said. "I don't see much of a case for change."
He said he loves the job, but not the campaign. Only his desire to serve the public, he said, drives him to persevere in the path to Nov. 7.
"I feel enormous pressure in the campaign. It's not fun. It's really emotionally draining."
But, he said, he has to do what the campaign requires. "The truth of the matter is that you've got to get your message out," Nabers said, "and you've got to respond to your opposition."
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Cobb vows: Get tougher on judges
Her opponent, Drayton Nabers, says he also is willing to make it easier to remove rogue jurists
October 23, 2006
By BRENDAN KIRBY, Mobile Press-Register
In 2001, with ethics charges pending against one of its own members, the Alabama Supreme Court made it harder to investigate and remove rogue judges. Five years later, complaints against judges are down. And so is the public's confidence in the judicial system, according to some Democrats running for seats on the high court.
Democrat Sue Bell Cobb, who is challenging Chief Justice Drayton Nabers in next month's election, has vowed to reverse the rule changes if elected. "It's so egregious," said Cobb, a judge on the Court of Criminal Appeals. "They help the powerful, and they hurt every single person in the state."
Nabers, appointed to his position two years ago in the wake of his predecessor's removal from office, played no role in the rules changes. He said he is willing to revise the system, adding that he is particularly concerned about rules that require judges to be told who makes complaints against them.
"I think an anonymous system is better, and we ought to go back to one," he said.
Nabers said he has not moved on the issue because he has been tackling higher priorities, such as improving the court system's efficiency with technological upgrades. He said he is pursuing a 12-point agenda. "There's a lot that needs to be done," he said.
Noting that Nabers stopped practicing law in 1979 to go into business, Cobb said the incumbent's views reflect his lack of experience as a trial judge. "It should be his first priority. Integrity of the court system should be No. 1," she said. "If he had been in the system, if he had been a trial judge, he would have understood how important that is."
The nine-member Judicial Inquiry Commission, made up of judges, lawyers and lay people, functions like a grand jury in a criminal case. The body receives and investigates ethics complaints against judges and, when members believe allegations have merit, files formal charges.
The commission presents those charges to the Court of the Judiciary, a separate panel that decides the guilt or innocence of judges and metes out punishment. Without holding public hearings, the Supreme Court in October made a number of changes to the methods followed by the commission. Those changes placed Alabama among a tiny minority of states that let judges know up front about complaints against them and keep them informed about details of the investigation. In some cases, the rules gave judges rights that their counterparts do not have in any other state.
The major changes include:
Informing judges each time a complaint has been made, including who made it. Previously, the commission would dismiss frivolous complaints without the judge even learning about it. Only after the commission brought formal charges would judges be informed about the allegations, and even then, the identity of the original complainant would be kept secret.
Keeping judges informed about the details of an investigation as it progresses. The commission now is required to send the judge under scrutiny a copy of all documents in the investigative file every four weeks.
Requiring complaints to be sworn in front of a notary public. Previously, people could simply submit written complaints to the Judicial Inquiry Commission.
Requiring all nine members to be present in order to hold a vote to bring charges against a judge. The new rules also require the commission members to meet in order to decide whether to start an investigation, and they must do so within 42 days of the filing of the complaint. Previously, commission staff could perform preliminary work.
The high court also made changes to the Court of the Judiciary. The justices initially required a unanimous vote to sanction a judge. Four months later, the justices backed off that position, requiring a unanimous vote to remove a judge and six votes out of nine to impose lesser punishments. Originally, a simple majority was all that was needed to remove a judge from office.
Setting state apart
Cobb said the rule changes set would-be complainants up for possible retaliation. "So now a judge knows anytime a person complains," she said.
Cindy Gray, the executive director of the Center for Judicial Ethics at the Chicago-based American Judicature Society, told Alabama officials in a 2001 letter that no other state in
the country required judges to be informed within 10 days of a complaint against them.
In an interview last week, Gray said Alabama's rules still place it outside the norm. "If it's not unique, it would be only a couple of states," she said. In most states, she said, complaints against judges are confidential unless formal charges are filed.
Statistics provided by the commission show sharp declines in the number of inquiries made to the commission and the number of formal complaints. In the three years before the changes, inquiries exceeded 1,000 each year, while formal complaints averaged more than 200.
In the fiscal year that ended last month, the commission fielded 758 inquiries and investigated 161 formal complaints. "The chilling effect has already occurred," Cobb said.
Critics of the changes zeroed in on the timing, which occurred while Justice Harold See was facing misconduct charges of airing false or misleading television commercials during his unsuccessful run for chief justice. Although See recused himself from discussing and voting on the rule changes, the changes applied retroactively.
At the time, See's case was pending before the Atlanta-based 11th U.S. Circuit Court of Appeals, which the Judicial Inquiry Commission had asked to let the charges be enforced. They ultimately were dismissed.
Al Johnson, a circuit judge from Russell County in eastern Alabama who is challenging Republican Lyn Stuart for a seat on the high court, put it bluntly. "These changes are an absolute abomination," he said. "What they did was go ahead and change the rules so Harold See could walk."
All of the justices in 2001 -- except See -- approved the changes. But three, Gorman Houston, Tom Woodall and Bernard Harwood, voted to delay their implementation to give the court time to consider concerns that others had raised.
Houston, who now is retired from the court, said the charges against See did not have anything to do with the changes. "I know it looked bad, and I thought they looked bad at the time, but in my opinion, it was really something that the chief justice wanted," he said.
Houston noted that the chief justice at the time, Roy Moore, had been the target of the campaign commercials that prompted the investigation against See. Moore declined to be interviewed for this article, but he issued a statement slamming Cobb.
"Changes to the rules governing the Judicial Inquiry Commission were made by a unanimous Supreme Court decision because it was clear that the JIC was a politically motivated body which had abused its authority in a number of cases," he said. "As a matter of fact, these changes were spearheaded by Justice Douglas Johnstone, the lone Democrat on the court. Sue Bell Cobb's unwarranted attacks on the Supreme Court demonstrate her willingness to use such matters for a political agenda."
Now retired from the court and living in Mobile, Johnstone said he stands by the changes. Before, he said, there was no limit to how long a judge could be investigated, which often could lead to damaging whispering campaigns. He pointed out that the Judicial Inquiry Commission successfully won Moore's removal from office in 2004 -- three years after the new rules took effect -- for ignoring a federal court order to remove a Ten Commandments monument from the Alabama Judicial Building.
"His case proved even with the changes, the system worked just fine," he said.
'Chilling' effect?
Cobb said criticism of the rule changes is not partisan, noting that the Republican attorney general at the time, Bill Pryor, filed a 70-page motion asking the court to reconsider the changes.
But Lyn Stuart, the former Baldwin County judge who also voted for the rule changes, said she believes the system has worked well. And while the court did not hold public hearings, Stuart said the justices reached out for advice.
"When we were considering (the rule changes) at that time, there were a lot of concerns about due process for judges. ... There were quite a few people who had expressed concerns about secrecy," she said. "We got a lot of input from a lot of different people."
Stuart attributed the decline in complaints to a reduction in frivolous allegations.
"I don't think any serious complaints have not been brought because of those rules," she said.
Critics are not convinced, however.
Randall Cole, a circuit judge for DeKalb and Cherokee counties in northeast Alabama who chairs the Judicial Inquiry Commission, said he continues to have concerns about the rule changes five years later. He said people routinely call the commission's staff with complaints about judges but fail to follow through once they learn about the process.
Cole said that shortly after the new rules went into effect, he talked to an employee of the court system who had a fairly serious complaint against a judge. He said he does not recall the details of the allegation but added that the employee did not want to make a formal complaint for fear that the judge would retaliate.
Lawyers especially are reluctant to file complaints out of concern that it will impact their clients on other cases, Cole said.
Complaints rarely result in charges. Margaret Childers, the executive director of the Judicial Inquiry Commission, said the Court of the Judiciary disciplines about one judge per year. Earlier this year, Talladega County District Judge Tommy Dobson was suspended for two months without pay for letting an assistant decide hundreds of cases without his oversight.
Still, even nonmeritorious complaints serve a purpose, Cole said. "I think one of the important functions of the commission is to offer people a forum to complain about a judge," he said. "If that door is closed to them in any way and they're not allowed to file a complaint, I think that's damaging to the system generally."
Not all of the Democratic challengers are making rules a prominent campaign target. Gwendolyn Thomas Kennedy, an attorney who is challenging Woodall, said she is open to reviewing the rules. She said her primary concern is the results.
"I want to make sure that these cases are investigated, and investigated thoroughly," she said.
Woodall, who is seeking a second term on the high court, said he thinks the court put the new rules into effect "a little rashly." He said Moore appointed a committee to examine the impact of the new rules, but the group never completed a report. Terry Butts, the former justice picked to lead the panel, could not be reached for comment last week.
Woodall said a review by a "fresh eye and a fresh mind" would be good.
"I just don't know whether there's been a chilling effect," he said. "Logically, I would think there might be some. I can't argue with that."
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First, Rename All the Lawyers [Op-ed]
The New York Times, October 24, 2006
By JOHN FABIAN WITT
IF a rose would smell as sweet by any other name, will trial lawyers smell better with a new one? That’s the question posed by the impending self-reinvention of the Association of Trial Lawyers of America. After Election Day, the 65,000-member outfit whose lawyers brought us multibillion dollar settlements in cigarette cases, millions of asbestos injury claims and lawsuits over McDonald’s coffee will change its name to the American Association for Justice.
There’s already been much wry snickering about the organization’s vaguely Orwellian new banner. But it’s not the first time the kings of torts have changed their name, and it probably won’t be the last. For a half-century now, trial lawyer identity crises have been exquisitely sensitive barometers of American politics.
In the late 1940’s, a cadre of poorly paid and status-starved lawyers representing injured workers (the claimants) in the workers’ compensation system banded together to form a lobby dedicated to the advancement of their own and their clients’ interests. They called their group the National Association of Claimants’ Compensation Attorneys.
That name worked for only a few short years. The problem was that the workers’ compensation system was designed to streamline the resolution of worker injury cases by eliminating (or at least minimizing) lawyers’ fees. Lawyers in the system therefore had little hope of gaining wealth or prestige. With the assistance of early association leaders like the flamboyant San Francisco lawyer Melvin Belli, the group’s lawyers began to extend their expertise to personal injury cases in the courts, where the fees ran much higher and where their Perry Mason-like trial techniques might earn them a measure of respect.
In 1960, the association formalized its new outlook by changing its name to the National Association of Claimants’ Counsel of America, a moniker that repositioned the group as one of lawyers for victims not just in the compensation system but also in the courts. Four years later, the organization renamed itself the American Trial Lawyers Association. By then its transformation was complete: the lawyers had left the compensation system behind altogether for the free-wheeling, high-risk and high-return world later made famous by Julia Roberts in “Erin Brockovich” and John Travolta in “A Civil Action.”
But the 1964 name stuck for less than a decade. Another lawyer organization — the American College of Trial Lawyers — complained that the names were too similar. The defense lawyers in the college apparently worried that it would be tainted by nominal association with the lowly lawyers’ group. In 1972, the American Trial Lawyers Association gave in to the litigation by the college and altered its name to the current (and now soon to be abandoned) Association of Trial Lawyers of America.
The trial lawyers’ struggle for identity is a near-perfect parable for the course of American politics since the 1930’s. In a political system long dominated by courts and political parties, Franklin Roosevelt and the New Dealers envisioned a new kind of federal government made up of administrative bureaucracies like workers’ compensation, which would provide rationalized services to citizens.
After World War II, however, American politics slowly reverted to form: resistant to European-style public bureaucracy, shaped by powerful courts and the legal profession, and highly susceptible to the influence of interest groups and party politics.
As American politics has changed, so have the trial lawyers. They began as cogs in the wheels of the New Deal’s bureaucratic machinery. They became legal entrepreneurs, identifying creative ways to produce higher awards for their clients in the courts and line their own pockets in the process. Thanks to mass torts cases arising out of things like cigarettes and asbestos, the association’s membership includes some of the wealthiest lawyers in the country. And in the past two decades, the trial lawyers have become a crucial source of financial support for the Democratic Party.
The problem for the lawyers is that the genius of the tort system — its capacity to marshal the entrepreneurial energies of the bar — is also its greatest public relations liability. Indeed, whether trial lawyers are part of a distinctively American regulatory solution or part of a distinctively American problem, the new name seems unlikely to change the way Americans view them.
At KFC (né Kentucky Fried Chicken), the chicken is still fried. At Altria (né Philip Morris), the cigarettes still cause cancer. And at the American Association for Justice, some will say that the trial lawyers are still chasing ambulances.
John Fabian Witt, a professor of law and history at Columbia, is the author of the forthcoming “Patriots and Cosmopolitans: Hidden Histories of American Law.”
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By The Topeka Kansas Capital-Journal editorial board
"It so happens that everything that is stupid is not unconstitutional." That statement --actually kind of obvious when you think about it -- made the news recently because of the person who said it.
It was spoken by U.S. Supreme Court Justice Antonin Scalia to sum up some points he was making about limitations on the role of the courts in society.
Keep in mind there likely are other justices who would take opposing viewpoints. Many important legal decisions are made by the court on a split vote.
But Scalia, one of the more highly visible and colorful justices, threw out some ideas worth considering on just what role the courts should play.
He rejected the idea that judicial independence is always a good thing. He noted that dozens of states, since the mid-1800s, have chosen to let citizens elect their judges.
"You talk about independence as though it is unquestionably and unqualifiably a good thing," Scalia said. "It may not be. It depends on what your courts are doing."
Specifically, Scalia seemed to be attacking the concept of "activist judges," which many conservatives use to describe a judge who makes a ruling on a social issue like abortion, suicide or even the Pledge of Allegiance.
"The court has said, you know, 'There is nothing in the Constitution on the abortion issue for either side,' " he said. "It could have said the same thing about suicide, it could have said the same thing about ... you know, all the social issues the courts are now taking."
He argued some issues should be decided by the elected representatives of the people, rather than by the courts.
So far, there has been no public reaction from the court's moderates and liberals to Scalia's speech before the National Italian American Foundation. So we can only imagine what their arguments might be.
They might cite Lord Acton's admonition in "The History of Freedom" in 1907: The one pervading evil of democracy is the tyranny of the majority, or rather that of the party ... that succeeds, by force or fraud, in carrying elections."
One of the most important roles of the courts is to protect the interests of the minority. And that can't be assured at the polls.
Dry up donations for judicial candidates
By Jennifer Owens, Bill Bozarth
Atlanta Journal-Constitution, October 18, 2006
As of Sept. 30, incumbent Georgia Supreme Court justice Carol Hunstein and challenger Mike Wiggins were on track to raise more money campaigning for the seat than any other race in the history of the Supreme Court.
While voters should be concerned and asking their elected officials to consider campaign finance reform to slow the flood of private money to all political candidates, money flowing to judicial candidates in nonpartisan races should concern voters most of all.
Most of the money going to these candidates comes either from lawyers who may appear before them or from business interests who want "their kind of judge" on the bench. Any way you look at it, it's not a pretty picture.
In addition to allowing donations of up to $5,000 to a statewide judicial candidate's campaign, there are significant loopholes in Georgia law that allow for unlimited amounts to be spent on subtle endorsements of judicial candidates by political parties and financial support from political action committees.
There is hope for reform, but the power lies within the people's will to raise this issue when the General Assembly convenes in January.
The job of a judge is to interpret the law, not cater to the trends or whims of political parties or partisan views, and not be tempted to think twice about which attorney might be a campaign donor. An independent judiciary is a cornerstone of our democracy and ensures a check on those in power, and this check must be protected at all costs.
The best way for Georgia to move forward in 2007 is with public funding for statewide judicial elections. If there's one group of elected officials who have no business taking money from big donors, it's our judges.
Jennifer Owens is executive director of the League of Women Voters of Georgia. Bill Bozarth is executive director of Common Cause Georgia.
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TV ads drive up campaign tab
Nabors-Cobb race costliest in nation for judicial post
The Birmingham News, October 15, 2006
ERIC VELASCO, News staff writer
Television advertising is making the race for Alabama Supreme Court chief justice into the nation's single most expensive judicial race, national watchdog groups said.
Chief Justice Drayton Nabers Jr. and Democratic challenger Sue Bell Cobb have spent a combined $1.5 million on TV, not including ad campaigns launched last week that feature the candidates criticizing each, according to the Brennan Center for Justice and Justice at Stake.
Nabers' new ad calls Cobb a liberal who accepted money from trial lawyers and contributed to John Kerry's presidential campaign.
Cobb's response ad chides Nabers for accepting money from insurance and oil companies and urges people to turn off their televisions when Nabers' negative ads run.
" Alabama has two political parties but they're not Democrats and Republicans - they're the business community and trial lawyers," said Larry Powell, professor of communications at the University of Alabama at Birmingham and a former political consultant. " Alabama has a lot of high judgments on plaintiff lawsuits, so that makes it a battleground."
Ads in Alabama's Supreme Court races also account for three of the top five media purchases in judicial races nationwide, according to the Brennan Center in New York and Justice at Stake in Washington.
"The campaign for Alabama's chief justice is this year's race to watch," said James Sample, associate counsel for the Brennan Center, which tracks television advertising in state Supreme Court elections. "The race between Nabers and Cobb looks likely to be the most expensive in the nation."
Nabers and Cobb reported spending $2.4 million between them through mid-September.
"We wish we didn't have to spend that kind of money to elect judges in bipartisan races," said Sabrina Loftin, Cobb's campaign manager. "Unfortunately, to reach all our voters, we have to raise a lot of money and keep her up on television."
Total reported spending in the race, including the primary between Nabers and Justice Tom Parker, is $3.1 million, campaign disclosure forms show.
Well ahead nationally:
Nabers and Cobb have raised a combined $3.5 million. No other state Supreme Court race in the country this year comes close.
Second in fundraising is a $1.2 million Ohio Supreme Court race. Coming in third is a $953,000 Georgia Supreme Court race, according to Justice at Stake, which tracks the influence of campaign contributions on justice.
In Alabama, spending in the Supreme Court race will be exceeded only by governor's and lieutenant governor's races - and may even surpass the latter, UAB's Powell said.
"For the trial lawyers and the business community in Alabama, this is the most important race," he said. "They see the outcome of the races in terms of their pocketbooks."
Fundraising by Nabers and Cobb dwarfs the total in most statewide races. In contrast, Lucy Baxley, the Democratic candidate for governor, raised $2.7 million in the same period. Gov. Bob Riley raised $8.9 million by mid-September.
"A lot of people care deeply about the races we have here in Alabama," said Clay Ryan, Nabers' campaign manager. "They think the courts are important. We've certainly been thrilled with the breadth and depth of support from individuals and businesses big and small."
Nabers has spent almost $900,000 on television ads since his campaign began, according to the Brennan Center and Justice at Stake. Cobb has spent almost $580,000, the groups said.
Alliance ranked, too:
Third-party ads also have been a factor in Alabama's chief justice race, the watchdog groups said.
The American Taxpayers Alliance - which refuses to disclose its funding sources but has received money in the past from the U.S. Chamber of Commerce - spent more than $990,000 during the primary season on ads promoting Nabers and Justice Jacquelyn "Lyn" Stuart, who is seeking re-election.
The alliance's Alabama ads rank first in the nation in media buys for judicial races this year, and Nabers' campaign ranks second, the watchdog groups say.
They ranked Cobb's ad spending fourth nationally. Judicial ad campaigns in Ohio and Washington state ranked third and fifth, respectively.
Both sides in the chief justice race accused each other Friday of negative campaigning. But the tone of ads run so far is nowhere close to prior campaigns when one candidate was compared to a skunk and another to a lap dog.
"It hasn't gotten nasty yet," Powell said. "Give them a little more time."
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Lawyers debate judicial surveys
Group proposes asking potential judges' views on hot-button questions
Tallahassee Democrat, October 19, 2006
By Bill Cotterell
The president of the Florida Bar said Wednesday that letting interest groups ask judicial candidates about judicial philosophy would not really inform the voters - just inject political pressure into campaigns for judgeships.
But an Orlando lawyer who heads a group trying to get a ban on gay marriage into Florida's constitution replied that, if a candidate can't be asked about philosophy, the public will wind up voting for whoever has the best yard sign or a nice-sounding name. That could lead to "activist judges" writing new law from the bench, he said.
The Tallahassee lawyers' chapter of the Federalist Society staged a luncheon debate between Jacksonville attorney Henry Coxe and John Stemberger of Orlando, president and general counsel of the Florida Family Policy Council. Stemberger said his group sent questionnaires to about 240 judges running for re-election and candidates for open seats, seeking their views on issues like same-sex marriage and adoption, parental consent for minors seeking abortion and use of public money to fund tuition vouchers for parents wanting to move children out of failing schools.
He said about half of the candidates responded, and more than 90 percent of them gave only biographical data - refusing to say how they viewed some court rulings on constitutional issues.
"Judicial elections in this state, I would submit to you, are completely void of any substantive exchange between voters and the candidates regarding judicial philosophy," Stemberger said.
Stemberger's group sued the Judicial Qualifications Commission and Florida Bar over the issue, arguing that judicial candidates should not have to recuse themselves from cases if they have stated a philosophical position on an issue. He said his organization was not asking candidates how they would rule on specific cases, but that voters had a right to know in broad general terms their philosophy of the law.
Stemberger heads a campaign group collecting voter signatures to put an amendment on the 2008 ballot, defining marriage as a legal union of one man and woman.
He said judges, like all public officials or voters themselves, have political and legal opinions. The only difference, he said, is that in judicial races, candidates can't freely state those views the way legislative and executive candidates can.
"This not merely chills free speech, it unconstitutionally freezes it," said Stemberger. "The fact is that all judges have views; in fact, they announce them every day when they rule from the bench, when they write an opinion or dissent in an opinion."
Coxe emphasized that he was not speaking for the Bar, which has not taken a position on the issue. But he said asking candidates how they feel about constitutional issues would surely lead to voters compiling slates - just as they do with politicians. He said such questionnaires would not inform voters whether a candidate has been suspended from practice or has had six divorces caused by infidelity - only whether he or she believed certain cases were decided right or wrong.
Coxe said the 1954 Supreme Court ruling striking down school segregation was "judicial activism." He said it was based on the 14th amendment, which makes no mention of schools or other issues involved in that case.
Letting organizations collect candidate questionnaires, like they do for legislators and executive candidates, would compromise the judiciary's independence and inject politics into court races, he said.
"It tells you one thing - this person is one of us," said Coxe. "That's the problem with special interest groups getting involved in the judicial-selection process."
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Western state voters to rule on 'activist judges'
STEPHANIE SIMON
Los Angeles Times, October 15, 2006
DENVER - Channeling anger at "activist judges" into action, conservatives in several Western states are campaigning for ballot measures that aim to limit judicial power and rein in what they describe as "runaway courts."
Frustration among the right has been building for years, especially since the high court in Massachusetts legalized same-sex marriage in 2003. Politicians and pastors have accused judges of ignoring the public will and legislating from the bench.
On Nov. 7, voters will be asked to do something about it.
South Dakota's ballot contains the most radical provision: It would empower citizens to sue judges over their rulings.
Other proposals would make Colorado the first state to impose term limits on top judges and, in Montana, give residents the right to recall judges over any "dissatisfaction."
In Oregon, an amendment would require Supreme Court and appeals court judges to be elected by geographic district, to reflect the values of conservative rural communities as well as the liberal legal establishment in Portland.
In three other states, ballot measures would limit judicial authority, although that is not the primary intent.
Proposition 90 in California aims to restrict government's right to condemn private property; it also takes elements of such cases out of judges' hands and entrusts them to juries. Nevada has a similar initiative. And a proposal in North Dakota would severely curtail the discretion judges have in settling custody disputes.
Supporters cast their efforts as populist and democratic, a way to make judges answer directly to the citizens they serve.
"This is a very measured and mild response to the perception that our courts are out of control," said John Andrews, a former legislator promoting the amendment to impose term limits in Colorado.
Opponents, however, warn that the initiatives would begin to dismantle the system of checks and balances set up under the U.S. Constitution.
"Judges are there to protect the minority from the tyranny of the majority. They are not there to do the popular will," said Doreen Dodson, a St. Louis attorney who chairs the American Bar Association's committee on judicial independence. "They are accountable to the law and the Constitution."
States have struggled to balance judicial independence and accountability, said Rorie Spill Solberg, a political scientist at Oregon State University. Lately, she said, that scale has tipped toward accountability - and a notion that judges should respect, even represent, the will of the majority.
All but eight states ban partisan elections for judges in an effort to keep politics - and corruption - off the bench. But Solberg and others worry that the latest wave of changes would make judges more vulnerable to pressure from interest groups and individuals.
"What I see, pretty much across the country, are judges under siege," said former Colorado Supreme Court Justice Rebecca Love Kourlis.
South Dakota's Amendment E would have the most sweeping effect; it has drawn opposition from conservatives and liberals - including, in a rare show of unanimity, every member of the state Legislature.
Under the amendment, any judge in the state could lose his or her job or their assets if citizens disliked how the judge had sentenced a criminal, resolved a business dispute or settled a divorce.
"We want to give power back to the people," said Jake Hanes, a spokesman for the measure.
A special grand jury would evaluate citizen complaints against judges - and judges would not be presumed innocent. Amendment E explicitly instructs jurors to "liberally" tilt in favor of any citizen with a grievance, and "not to be swayed by artful presentation by the judge."
This deep suspicion of judges is reflected not only on the fall ballot, but also in the rallying cries of the right, especially Christian conservatives. A summit for "values voters" last spring included a session called "The Judiciary: Overruling God." Mock ballots, circulated online, urge Christians to vote for the judge they'd most like to impeach.
The American Bar Association is so concerned about the trend that it recently produced a DVD called "Countering the Critics," to be screened at churches, Rotary Clubs and Chambers of Commerce nationwide.
The amendment has also drawn further high-powered - and well-funded - opposition, with public statements coming from many district attorneys, three former governors and Republican Gov. Bill Owens.
"Reasonable people, present company included, will disagree with rulings from time to time, but that does not mean we dismantle an entire branch of government," said former Gov. Richard D. Lamm, a Democrat.
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Public defenders at loss in New Orleans
Post-Katrina, lawyers, money short for poor defendants
The Associated Press, October 16, 2006
NEW ORLEANS – The New Orleans public defenders office, struggling to provide attorneys for hundreds of poor people accused of crimes, is also trying to find qualified lawyers for those facing the death sentence in cases in the city's courts.
"We are in the process of working with basically everyone, but in particular with the Louisiana Capital Defense Project," which specializes in defending death-sentence cases, said Steven Singer, appointed head of the Indigent Defender Program this fall.
Public defenders must have a special certification to handle death-penalty cases.
The New Orleans office, severely depleted of attorneys in the wake of Hurricane Katrina, is also short of lawyers with this qualification.
Six lawyers, including two handling capital cases, quit in September after Mr. Singer required attorneys to work full time, rather than maintain a private practice on the side.
Mr. Singer believes the change will improve the quality of legal representation.
There are 27 to 32 death-penalty cases on the New Orleans court dockets spread among 12 criminal courts, Mr. Singer said.
How quickly representation for those defendants can be provided is unclear, Mr. Singer said.
"I think it's going to take some time to contact all these groups and lawyers and arrange for them to represent people," he said.
Mr. Singer was scheduled to be in Judge Calvin Johnson's court today to tell him how the capital cases in his court will be represented.
"We've all got capital cases, and they all have to have lawyers," Judge Johnson said. "We just want to know who's going to do it."
At the same time that he is working to get representation for defendants in capital cases, Mr. Singer is trying to become familiar with each case and determine whether any of the accused have spoken with a public defender.
"Pre-Katrina, the situation was that lawyers rarely if ever went to jail to speak with clients," Mr. Singer said.
"They only spoke to them briefly in court."
Mr. Singer is hoping to change that system, though he says a lack of money is a serious hurdle.
Louisiana is the only state in the nation that finances its public defense offices primarily through fees on traffic tickets. And with New Orleans' population at only about 40 percent of its pre-storm levels, revenue from tickets has fallen. Pre-Katrina, the office ran on a $2.5 million annual budget.
A U.S. Department of Justice study this summer concluded that the public defenders office in New Orleans needs at least $10 million to operate for a year, including hiring 70 full-time attorneys, along with support staff, and providing a computer system to track cases.
"The truth is there are too many cases and too little resources," Mr. Singer said.
Nabers, Cobb vie for chief justice
By Mike Linn
Montgomery Advertiser, October 10, 2006
In the race for chief justice of the Alabama Supreme Court, Republican candidate Drayton Nabers is touting his conservative judicial philosophy while his Democratic opponent, Sue Bell Cobb, is championing 25 years of work in a black robe.
Nabers, who was appointed chief justice in 2004 to replace former Chief Justice Roy Moore, said if elected, he would continue "moving the courts into the future," making them more efficient and user-friendly with electronic filing.
Cobb, who was a district judge for 131/2 years before being elected to the Court of Criminal Appeals in 1994, said if elected, she would work to help create a more accountable judiciary.
The two face off in the November general election.
"The biggest issue is just qualifications," Cobb said. "What does it take to be a good chief justice? To have the correct vision or be able to provide the correct vision, you need to have been in the court system and I've been a judge for 25 years."
Nabers said he had more than 40 years of experience as a lawyer, businessman and the state's finance director before he was appointed to the state Supreme Court.
"If you look at the judicial side of it, I'm well-experienced and qualified to be chief justice," he said. Administratively, he said he has used his business experience to move the Alabama judicial system "forward very rapidly."
He said his conservative record speaks for itself.
"Voters of the state of Alabama want to be assured that the chief justice of this state is a conservative judge that interprets the law and applies the law and in no respect legislates the law. I am such a conservative judge," he said.
Cobb, who is the only Democratic judge in the state's appellate court system, said she's concerned about the oversight of judicial misconduct statewide.
Cobb said the state Supreme Court in 2002 made "egregious changes" to working policies of the Judicial Inquiry Commission, which investigates complaints of misconduct or professional wrongdoing on the part of judges.
The ruling removed confidentiality in complaints against judges made through the Judicial Inquiry Commission. Since then, Cobb said complaints against judges have been reduced by two-thirds.
If elected, she said she'd like to use her influence as chief justice to change that practice.
"Lots of folks who are willing to complain are lawyers and litigants," she said. "But when you have a pending case, you're not going to complain because then the judge knows who filed the complaint against them. The trial judges say they don't want to know who filed the complaint against them."
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Judicial panel draws GOP ire
By Mike Linn
Montgomery Advertiser, October 9, 2006
A campaign oversight committee formed to help keep judicial races clean is at the center of an election-year fight between Republicans and Democrats.
In the race for chief justice of the Alabama Supreme Court, Democratic candidate Sue Bell Cobb has criticized Republican incumbent Drayton Nabers for not signing an agreement sent by the committee before the June 6 primary. The agreement asks candidates to run a campaign that "reflects respect for the integrity and dignity of judicial office."
"The candidate agreement is not intended to be a point of dispute among candidates," the committee's co-chair, Bill Gordon, said in a statement following Cobb's criticism of Nabers. Formed last year, the 2006 Alabama Judicial Campaign Oversight Committee is intended to help candidates decide whether their advertisements or those of their opponents are overly negative and violate the Alabama Canons of Judicial Ethics.
In March, the head of the Alabama Republican Party sent a letter to Republican judicial candidates, including Nabers, asking them to refrain from signing the agreement, calling the committee an "orchestrated effort by Democrats to manipulate the manner in which Alabamians elect their judges." "This committee appeared out of thin air with no guidelines, and you're probably going to see them disappear into thin air because all they are is a politically biased group with a liberal agenda," said GOP Chairwoman Twinkle Andress Cavanaugh.
Few Republicans have signed the pledge, and it wasn't until last month that all Democratic candidates for state Supreme Court signed it. All of the Democrats were unopposed in the primary. Nabers trusts the people of Alabama will make the right decisions, said Clay Ryan, the chief justice's campaign manage. "As we've learned from past elections, the voters consistently get it right by rejecting candidates who run untruthful ads," Ryan said in a statement.
Gordon, a retired Montgomery Circuit judge who co-chairs the committee, takes issue with the GOP's contention that the committee is made up of mostly Democrats. He said the committee has five Democrats, three Republicans and five Independents, including himself and a former Democratic state senator. "The people on this committee are committed to the goals of the committee, and those goals don't include a candidate from one political party or the other winning," Gordon said. "Our goal is simply to raise the level of campaign conduct in this state." In criticizing the committee for its political makeup, Cavanaugh points to former Democratic congressional candidate Judy Belk, who a few years ago compared her Republican opponent, U.S. Rep. Jo Bonner, R-Mobile, to a lap dog in a campaign advertisement.
Gordon defends Belk, saying it was his Republican co-chair, Montgomery lawyer Constance Barker, who nominated Belk to the committee. Belk said it's not worth the effort to respond to Cavanaugh's "silly little games." Republicans also say one member is the Rev. Karl Stegall of First United Methodist Church in Montgomery, where Cobb attends, and another former member, Birmingham attorney Laveeda Morgan Battle, contributed $500 to Cobb's campaign. Battle resigned last month to avoid the appearance of impropriety, although Gordon said she didn't have to because she made the contribution before being appointed to the committee.
A former chief justice, Perry Hooper Sr., appointed a campaign oversight committee for two elections in the last decade. Nabers, though, said an appointed committee isn't necessary because the state's Judicial Inquiry Commission is charged with "the legal oversight of campaigns." Created under the provisions of the Alabama Constitution, the Judicial Inquiry Commission is charged with investigating complaints of misconduct or professional wrongdoing on the part of judges, according to the Alabama Judicial System Web site.
Bobby Segall, a former Alabama State Bar president and a Democrat, said he disagrees with Nabers that the Judicial Inquiry Commission should handle inquiries about unethical campaigning. The commission meets only once a month, he said, and wouldn't be able to handle inquiries in a timely manner. The oversight committee, he said, handles inquiries within 48 hours. Cobb and Segall said they wanted Nabers to appoint an oversight committee. When he didn't, Segall said he appointed a bipartisan task force to research the need for an oversight committee. The task force found a need, and the committee was formed. Ryan, though, said if Segall's "goal was the appointment of a truly bipartisan committee, then he has failed miserably."
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In Georgia, High Court Candidates Have Fundraising on Their Minds
New State Record Already Set, With a Full Month of Campaign Remaining
October 9, 2006
Contact: Jesse Rutledge of Justice at Stake, 202-588-9454
WASHINGTON, D.C. - Fundraising by candidates for the Georgia Supreme Court has already smashed the state's previous high-water mark, according to a national watchdog group. The news comes on the heels of record-breaking
campaigns in other parts of the country.
Justice Carol Hunstein has raised $770,396 while challenger Mike Wiggins has
raised $182,616 for a combined total of $953,012 through September 30th,
according to reports recently filed with the state's ethics commission.
Three other incumbents without challengers have also been raising funds, though complete totals weren't yet available on the ethics commission website.Georgia¹s previous Supreme Court candidate fundraising record was set in 2004, when two candidates combined to raise $815,531.
But the candidates' money chase is just the beginning. A newly formed political action committee, the Safety and Prosperity Coalition, has also reported raising $318,500 to influence the outcome of the Supreme Court campaign.
According to a recent opinion piece by the group's director in the Atlanta Journal-Constitution, the coalition "represents the broadest possible general interest in a fair and predictable court system" and its partner groups represent "hundreds of thousands of Georgia voters."
Yet the group has reported only 11 donors, none of them individuals and five of them with addresses from outside Georgia. The largest donation comes from the Georgia Medical PAC (GAMPAC), which has donated $100,000. The group's largest out of state donor is DaimlerChrysler Corporation, which has given $50,000. While not explicitly taking sides, the group telegraphs its intentions on its website: "The Safety & Prosperity Coalition has reviewed rulings of the Georgia Supreme Court to determine whether they are true to the principles of the rule of law...we exist to help level the public playing
field and bring fairness to a system that has been dominated by the trial bar."
"Across America, when interest groups collect big checks and put courts in the cross-hairs, a costly and nasty campaign is usually around the corner," said Bert Brandenburg, executive director of Justice at Stake, a Washington, DC-based nonpartisan group working to keep America¹s courts fair and impartial. "Now it may be Georgia's turn to endure the new politics of judicial elections, where courts are pressured to be accountable to special interests instead of the law and the Constitution."
Brandenburg noted that interest groups have already aired television ads in nearly half the states holding Supreme Court campaigns this fall including Alabama, Nevada, Ohio and Washington. A recent analysis of interest group spending on judicial campaign television ads found a 69 percent jump in spending by outside groups compared to the same point in the 2004 campaign. An earlier analysis showed that nearly 60 percent of all negative ads in state Supreme Court campaigns are paid for by independent groups.
Preliminary results collected by Justice at Stake indicate that Georgia joins Oregon and Washington in breaking state high court fundraising records in 2006.
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No room for special-interest politics in judicial elections
By Jay Cook (Pres. of the State Bar of Georgia)
10/10/06
The State Bar of Georgia never endorses candidates. But we are in favor of nonpartisan elections for judges—and have been for 25 years. Judges in Georgia may be elected, but
they are not politicians. If we politicize judicial elections, it is at our peril. The public trust demands clean hands and impartial courts —but, in my book, clean hands and dirty politics don't mix.
When political operatives with flexible ethics try to manufacture a grass-roots movement to skew public opinion and shield their donors from tax codes and election laws, they are engaging in "Astroturfing."
Federal election laws limit what's known as "hard-money" political contributions to $1,000 per person, or $5,000 per political action committee. But the same rules don't apply to independent committees and 527s (named after an IRS code loophole) that can legally raise unlimited sums of "soft money" from individuals, corporations and unions as long as they aren't using it for or against a particular candidate.
Six years ago, Congress passed a public disclosure law for all 527s, but when a 527's operators are determined to be evasive, it's difficult—if not impossible—to get the full story on who's really driving their organization.
In Georgia, eight independent committees have registered in the past year alone —"indicating that there will be an increase in special-interest participation this year," said Deborah Goldberg, director of the Democracy Program at the Brennan Center for Justice at New York University.
One of these independent committees, the Safety and Prosperity Coalition, has already been accused of funneling large soft-money contributions into Georgia's upcoming nonpartisan Supreme Court election.
"Astroturfing" is misleading enough in partisan politics. But it's especially deceptive and destructive when it comes to judicial elections. Such tactics—artificial grass roots, stealth funding and polarized rhetoric—threaten judicial integrity and impartiality.
Fairness and impartiality are essential qualities for the judiciary's role in our system of checks and balances. But to remain fair and impartial, judges cannot be beholden to special interests or fearful of being unseated by an opponent who can be backed by special-interest groups.
"When special interests use their disproportionate financial power to oust judges who do not rule in their favor, the ability of judges to be fair and impartial is in danger," Brennan's Goldberg warned.
In our country’s Declaration of Independence, the Founding Fathers railed against King George III for obstructing a free judiciary and subjecting judges to his own will.
The monarch, not the law, ruled the courts. The king and his ministers influenced verdicts to suit their personal or political advantage.
After freeing themselves from England, our founders were adamant about creating a nation driven by the Rule of Law, not the Rule of Men. The Rule of Law ensures that nobody's above the law, that all of us play by the same rules.
To achieve their vision, the founders established an independent judicial branch that would be accountable to the Constitution as the supreme law of the land—not to the executive branch nor the legislative branch.
Special-interest groups that employ 527s and other tactics to mislead voters and duck election laws want to secure the Rule of Men, not the Rule of Law. After all, men are easier to manipulate and control than the Constitution. And that's precisely what our founders sought to prevent.
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Broader approach needed for reform
Montgomery Advertiser, October 10, 2006
If simply facing reality and doing the right thing were all that was required, Alabama would have had a new state constitution long ago. But we don't; instead we lurch along from year to year with our potential impeded, with any progress that is made occurring in spite of the cumbersome 1901 constitution, certainly not because of it.
Holding the high ground on the right side of the issue is just not enough. When members of Alabama Citizens for Constitutional Reform, the leading advocacy organization on the issue, met with legislators last week, they got some useful advice that underscores the difficulty of bringing about even the most obviously needed reform.
The Birmingham News reported that legislators told ACCR that education is still a major obstacle in the path of reform. Too many Alabamians still do not see the need for a new constitution or fear the consequences of having one. This won't be easy to overcome.
"Many of our citizens, despite the hard work that this group has done, they're still ignorant in terms of what needs to be done, and even where they are as individuals as it relates to constitutional reform," Rep. Demetrius Newton told ACCR.
He's right. Too many Alabamians still don't make all the connections. They don't, for example, associate unresponsive county governments with the constitution that ties their hands. They gripe about the failings of the Legislature, but don't associate the inordinate degree of power the Legislature holds with the constitution that centralizes so much authority at that level.
A more knowledgeable electorate would be less susceptible to the claims of reform opponents, who contend that a new constitution is merely a scheme to raise taxes, or establish a state lottery, or to give power to local governments so they can raise taxes.
Given Alabama's political history, why would anyone think that some tax-happy politician would flourish in this state? The people, after all, have the final say at the ballot box.
There is also a lot of ingrained resistance to constitutional reform in the Legislature. Many lawmakers like the outsized degree of power they hold and won't willingly relinquish any of it.
In this year's session, for example, two measures backed by ACCR were voted down. The bills did not create a new constitution or even establish a convention process for writing one. They merely would have allowed the people of the state to decide whether to hold a constitutional convention. If they did so, they then would later vote on whether to accept the product of the convention.
But the people never got the chance to decide the first question, let alone the second. The Legislature denied them the opportunity.
The slow process of education, of broadening the understanding of the flaws of the 1901 constitution and the need for drafting a new one, must continue. It's tedious and frustrating for many reform advocates, but it is an inescapable necessity.
Experience and oversight most important to Cobb
By Jared Culver
Contributing Writer, The Crimson White
October 05, 2006
Judge Sue Bell Cobb, a veteran of civil and criminal cases who has presided in 40 of Alabama's 67 counties said the central issues of this campaign are experience, the need for stronger judicial oversight and the threat posed by partisan elections to judicial impartiality.
"A judge should know the law, have an abiding concern for people and they should be able to see both sides of any issue," she said.
Cobb, a graduate of the University, said the starkest contrast between her and her opponent is judicial experience. She has been an acting judge for 24 years and said the contrast with her opponent's lack of on-the-job experience is striking.
"This race boils down to my credentials and qualifications against his credentials and qualifications," she said.
The idea of judicial accountability is something Judge Cobb said is close to her heart based on her extensive knowledge of how the legal system works. Changes during the tenure of Chief Justice Roy Moore made it more difficult for oversight meant to ensure judges are acting legally and responsibly, and she said Drayton Nabers has done nothing to address the problem.
"It is the chief justice that is responsible for providing the vision of the entire court system," she said.
One specific rule, she said, called the "open-file" rule, requires that any judge being investigated must be shown all the evidence before a formal complaint is lodged and the name of the person that filed the complaint.
"People should be able to complain without the chilling affect of knowing that the judge knows your name," she said. "Since they removed confidentiality which means the judge must get a notice, the complaints have been reduced by two-thirds."
Cobb said she is also concerned about the impartiality of judges in light of highly partisan campaigns that require big donations. She said she signed a pledge to run a fair and honest campaign sponsored by the Judicial Campaign Oversight Committee while her opponent refused.
William Stewart, professor of political science, said Cobb was immensely qualified for the job but faced the problem of being moderate to liberal on issues in a conservative state.
He said the task for her was to downplay issues of partisanship and instead focus on bi-partisan points of complaint such as the "open-file" rule. He said the chief justice is likely to have more money in his coffers, and that is always critical in elections.
"Judge Cobb is more liberal," he said. "She'll have to emphasize her character and experience."
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Allred Loses Appeal to Supreme Court
The commentator and lawyer had challenged a 'gag order' imposed in a state murder trial.
By David G. Savage, Los Angeles Times Staff Writer
October 3, 2006
WASHINGTON — In a setback for lawyer and TV commentator Gloria Allred, the Supreme Court on Monday refused to hear a free-speech challenge to the increasingly common practice of judges issuing "gag orders" for all the lawyers in highly publicized criminal cases.
The order turning down Allred's appeal came on an unusually quiet first day of the court's fall session.
By law, the justices open their term on the first Monday of October. But since this year it came on the Jewish holiday of Yom Kippur, the justices postponed the first oral arguments until today. At 10 a.m., the court issued a list of nearly 1,900 appeal petitions that were turned down without comment.
They included a constitutional challenge to a Texas law that makes it a crime to sell some vibrators and other sex toys. Similar laws have been struck down by state courts in Colorado, Kansas and Louisiana on the grounds that they violate the right to privacy, but have been upheld in Georgia, Alabama, Mississippi and Texas.
The Supreme Court has shown no interest in deciding the issue. It turned down an appeal from Alabama last year.
The vast majority of appeals come from prison inmates, and nearly all are rejected without comment.
Although the media and the public have a right to see and hear trials, the participating lawyers do not always have a free-speech right to talk about their cases. Judges sometimes have barred lawyers from speaking out on a pending case on the theory that their public pronouncements could threaten the defendant's right to a fair trial.
Erwin Chemerinsky, a Duke University law professor, filed an appeal on Allred's behalf, arguing that the court should clarify when a judge can bar lawyers from talking in public.
"In virtually every high-profile case, it is now routine for trial courts to issue broad gag orders preventing attorneys, parties and witnesses from making public statements," he said in the appeal. These orders not only prevent lawyers "from speaking to the press about pending cases" but "even from commenting on the wrongdoing of government officials."
Last year, a state judge in Contra Costa County who was presiding over the murder trial of Scott Dyleski barred prosecutors and defense lawyers, including those who represented witnesses, from making any out-of-court statement about the evidence in the case.
Allred and her law firm had been hired to represent a minor who was a potential witness in the case. The judge said the order was not intended to prevent commentators from speaking on the case. However, "insofar as [Allred] is an attorney for a material witness, she will be subject to the same constraint as another attorney representing a party or witness," the judge said.
Chemerinsky's appeal noted that this was the first time Allred had been subject to a gag order.
The judge's order was upheld by a California appeals court, and the state Supreme Court refused to hear it.
Atty. Gen. Bill Lockyer also urged the high court to reject the appeal. He said judges are doing a good job of deciding when gag orders are needed to preserve a fair trial, and there is no need for a special rule in "the unusual situation of an attorney in a high-profile case" who also "regularly comments on legal matters on television."
Dyleski, now 17, was convicted in August of the murder of Pamela Vitale, the wife of prominent defense lawyer Daniel Horowitz, and was sentenced last week to life in prison without parole.
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Time to abandon judicial 'activism'
By KERMIT ROOSEVELT
Albany Times-Union, October 5, 2006
The new Supreme Court term began Monday and with it, judicial activism is again in the news. You remember activism, of course; it's what President Bush promised to save us from with his Supreme Court nominees, and what John Roberts and Samuel Alito swore during their confirmation hearings to avoid.
Activism, as it's conventionally understood, is the sin committed when judges decide cases based on their own values rather than the dictates of law. This is an abandonment of the judicial role; it is what is sometimes called "legislating from the bench.
In one form or another, the specter of activism has been with us for almost as long as we've had judges. It's been raised by both conservatives and liberals, in patterns that tend to alternate depending on whose legislative programs the courts are interfering with. (In the first half of the 20th century, it was the liberal Progressives and New Dealers who shrieked the loudest about it. For the last few decades, we've heard mostly from conservatives, but that is starting to change.)
Complaining about activist judges is one of the most consistent practices in American politics -- someone is always doing it. But it is understandable if you feel uncertain about exactly how to identify these monsters. No one knows.
The latest flurry of writing on the topic comes from an attempt by professor Lori Ringhand to offer an objective guide.
Judges are activist, Ringhand suggests, when they vote to strike down state or federal laws, or to overturn a prior judicial decision. This definition is useful because it is objective; it takes away the "I know it when I see it" obscurity of much activism talk. But precisely because it is objective, it's missing an important part of its meaning. Activism is supposed to be bad, but voting to strike down some laws (unconstitutional ones) is not bad; it's the judge's duty.
My suggestion is to stop using the word activism entirely.
No one can even agree on which decisions count as activism. And the term is not merely useless, it's harmful. Because it is almost always used for political effect, it encourages people to think about judicial decisions in political terms and to denounce ones that don't fit their politics. This corrodes respect for the judiciary and undermines judicial independence. And it shows a very basic misunderstanding of the nature of the U.S. Constitution, which, as Justice Oliver Wendell Holmes wrote, is "made for people of fundamentally differing views."
Abandoning the word has been suggested before. The problem is that doing so seems to leave us without a way of registering disapproval of inappropriate judicial decisions. This is something we need to be able to do. There are such things as abuses of judicial power and also improper acquiescence to power grabs by the other branches of government.
Like the rest of the federal government, the Supreme Court is the servant of the American people, and it is vitally important for the people to be able to evaluate its performance.
I have a suggestion here, too. We can decide whether the Supreme Court is behaving appropriately -- whether a particular decision is legitimate or illegitimate -- by deciding whether it is employing an appropriate level of deference to the judgment of other governmental institutions. (This might seem too simple, but if you boil down the complicated doctrines the court has created, most of them turn out to be basically just that: a decision either to defer or to be suspicious.)
Evaluating the level of deference is an easier task than determining whether a decision is correct. It requires us to consider a relatively small number of questions, whose answers suggest greater or lesser deference. Is the constitutional issue one that some other institution is better at analyzing? (Legislatures are better than courts at weighing competing policy concerns and deciding complex factual questions.)
Is there some reason to doubt that the political process will give an accurate assessment of the public interest? (The costs of laws that burden politically weak or unpopular groups may be discounted.)
Is there a history of constitutional violations by the institution? (States that persisted in racial discrimination were appropriately viewed with suspicion by courts.)
What are the relative costs of error? (It's worse to imprison an innocent person than to release a guilty one.)
Our answers to these questions will not always tell us that the court must use a certain level of deference. Indeed, frequently the answers will point in different directions, suggesting that different choices are reasonable. But that is a feature, not a bug. As long as the court is making a reasonable decision about the level of deference, it is behaving appropriately.
If we examine recent cases from this perspective, we will see that the court is very rarely illegitimate.
Judicial activism turns out to be largely a myth.
Kermit Roosevelt teaches at the University of Pennsylvania Law School and is the author of "The Myth of Judicial Activism." He wrote this article for the Los Angeles Times .
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S.C. lawyers seek relief in indigent defense duties
By JASON RYAN
The State, October 2, 2006
Frustration over how South Carolina handles court-appointed lawyers has reached a boiling point among the state’s lawyers. The 11,884-member South Carolina Bar plans to lobby the Legislature next year for significant reform or increased funding.
At stake is how South Carolina’s poor residents are assigned court-appointed lawyers and in turn how those lawyers are reimbursed and protected from unmanageable caseloads.
State law requires that all lawyers be placed on either a criminal or civil law list maintained by county clerks of court. Their names are cycled through as there is a need for legal representation to the indigent.
For civil cases, this can mean representation when a child is removed from a home or when a convicted criminal is seeking a new lawyer and retrial. For criminal cases, this can mean supplementing the efforts of a county’s full-time or contracted public defenders .
The issue is most pressing in rural areas, where the lists turn over quickly because there are so few lawyers, said S.C. Bar president Brad Waring.
“You don’t close as many cases as you take each year, and you get overwhelmed,” said Waring, a lawyer in the Charleston office of the Nexsen Pruet law firm.
In large corporate firms, prominent lawyers often turn their court appointments over to junior lawyers through a substitution of counsel, allowing them to work on other cases.
That’s not an option for lawyers in rural counties, Waring said, where small practices and sole practitioners are common.
In Edgefield County there are about 25,000 residents and 10 lawyers.
Eydie Tillman practices family and real estate law in the town of Edgefield and has four court-appointed civil law cases open. She’s not overwhelmed now, but she has been in the past. “If you get a very involved Department of Social Services case, you can be tied up in that for a year-plus,” Tillman said. “When we have to allocate a lot of time to what is, in essence, a free case, it is frustrating.”
About 10 years ago, Tillman said she applied for reimbursement for her work on a civil case, only to be told the state was out of money.
She has not applied again, instead viewing it as an “opportunity to give back to the community.”
For many lawyers, Waring said, it’s not worth applying for reimbursement at the “ridiculously low” $40 an hour rate — with a $1,750 per-case cap on civil cases.
In criminal cases, which have varying hourly rates and a cap of $3,500 for felonies, Waring said there is often not enough money to cover costs for forensic and psychology experts. That means it comes out of the lawyer’s pocket if those experts are consulted.
Lisa Barfield, assistant director of the S.C. Commission for Indigent Defense, agreed that the hourly rates are too low.
But contrary to what many lawyers say, the office has not run out of reimbursement money for at least four years, and that year vouchers were still eventually paid.
“I really don’t know where these rumors are coming from,” said Barfield. “It seems that the people making these complaints have not bothered to contact the office about the availability of funds.”
Last year, the commission paid $2.2 million for court appointments for criminal cases, including cost overruns for public defenders. The commission paid $1.2 million for civil cases and $1.5 million for death penalty cases.The money comes from court fees and fines, not the General Assembly, said Barfield.
SOLUTIONS?
Waring argues the court-appointment system is unconstitutional — representing a “takings” that does not compensate lawyers for their time and efforts.
He wants to increase the state’s budget for civil and criminal court appointments to $14 million and allow a pay scale of $90 to $120 per hour, in line with federal standards.
Greg Hembree, president of the S.C. Solicitors Association, agreed that the state should allocate more money for court-appointed attorneys, as well as for solicitors.
“We operate our criminal justice on the cheap in this state,” said Hembree, who is solicitor in Georgetown and Horry counties. There are also opportunities to save money, he said, by making sure those who are given court appointed lawyers are truly in need and not reimbursing lawyers if they consult bad experts.
Rep. Jim Harrison, an attorney and chairman of the House Judiciary Committee, said he has heard polite insinuations that “takings” lawsuits could be filed against the state if the system is not addressed. He supports a change. “No doubt, it’s underfunded,” the Richland Republican said. “Attorneys in this state are donating a lot of their time.”
House Speaker Bobby Harrell, R-Charleston, said he has not heard much concern for the system recently, but that he would speak with lawyers who are state representatives.
In the Senate, President Pro Tempore Glenn McConnell said he will call for reducing the number of people entitled to court appointed attorneys, especially in civil cases.
“(The law) was never intended to provide an attorney across the board for non-criminal matters,” said McConnell. “I think we can reduce the demand.”
McConnell said that people seeking post conviction relief, such as asking for a retrial, do not need a lawyer, nor is there a need for so many lawyers in social service cases such as when a child is removed from a home and legal guardians are present.
The S.C. Bar also would support the adoption of a statewide contract system for court appointments, Waring said, letting the cases be handled by “people who really have the fire in their belly to do that kind of work.”
That also could improve the quality of legal service, he said, as lawyers who specialize in areas like real estate and tax law would not have to represent participants in family law or criminal cases.
NATIONWIDE PROBLEM
The American Bar Association in December 2004 published Gideon’s Broken Promise — a report that found indigent defense in America in “a state of crisis” 40 years after the landmark Supreme Court decision Gideon v. Wainwright, which guaranteed citizens the right to an attorney.
The report called funding for defending the poor “shamefully inadequate” and urged more money be spent by states.
It also argued for more oversight and training of court-appointed lawyers. Barfield said some lawyers are not prepared to represent certain indigent clients.
“What makes it difficult is you have a lot of lawyers who don’t have the expertise, the knowledge or the desire to take these cases,” Barfield said.
The need for court-appointed lawyers is growing, too, she said, referencing Alabama v. Shelton, a 2002 U.S. Supreme Court decision that requires a representation for citizens threatened with incarceration in low-level courts such as municipal and magistrate court.
“We’ve seen an increase,” Barfield said. ”Every year it seems there’s something new thrown into the laps of the public defenders and private attorneys who handle the cases.”
Waring said lawyers aren’t trying to shirk their civic responsibilities or make more money by changing the system. They want to improve how cases are handled.
“It’s not about lawyers earning dollars — it’s about inefficiency.”
