The Need for an The Need for an Independent, Impartial Independent, Impartial

Judiciary:Judiciary:

Caperton v. A.T. Massey Caperton v. A.T. Massey Coal Co.Coal Co., 129 S. Ct. 2252 , 129 S. Ct. 2252

(2009)(2009)TM

What is the Judiciary’s Role in a What is the Judiciary’s Role in a Constitutional Republic?Constitutional Republic?

Are judges, like legislators and governors, Are judges, like legislators and governors, politicians who are designed to be subject politicians who are designed to be subject to the will of their constituents?to the will of their constituents?

Is it proper for judges to campaign for Is it proper for judges to campaign for votes, to fundraise, and, in the process, to votes, to fundraise, and, in the process, to anticipate and address legal issues that anticipate and address legal issues that may be raised in future cases?may be raised in future cases?

Should judges be influenced by lobby Should judges be influenced by lobby efforts of interest groups for support as are efforts of interest groups for support as are legislators and executive-branch officials? legislators and executive-branch officials?

TM

A Constitutional DialogueA Constitutional Dialogue

Today we will discuss these Today we will discuss these questions by exploring the United questions by exploring the United States Supreme Court’s recent States Supreme Court’s recent decision in decision in Caperton v. A.T. Massey Caperton v. A.T. Massey Coal Co.Coal Co., 129 S. Ct. 2252 (2009). , 129 S. Ct. 2252 (2009).

TM

Caperton v. A.T. Massey Coal Caperton v. A.T. Massey Coal Co.Co., 129 S. Ct. 2252 (2009), 129 S. Ct. 2252 (2009)

What are the facts?What are the facts?

TM

Interpreting the Due Process Interpreting the Due Process ClauseClause

Interpret:

To give or provide the meaning of something, whether it be a statement, a word, a phrase, or even an entire law or

amendment.

The Duty to InterpretThe Duty to Interpret Judges are charged with the duty to Judges are charged with the duty to impartially interpret the law.impartially interpret the law.

This duty to interpret applies to This duty to interpret applies to constitutions, statutes, rules, treaties, constitutions, statutes, rules, treaties, contracts, and prior court decisions, contracts, and prior court decisions, which are referred to as precedents.which are referred to as precedents.

TM

The Due Process ClauseThe Due Process Clause

No state shall make or enforce any law No state shall make or enforce any law which shall abridge the privileges or which shall abridge the privileges or immunities of citizens of the United immunities of citizens of the United States; nor shall any state deprive any States; nor shall any state deprive any person of life, liberty, or property, without person of life, liberty, or property, without due process of law; nor deny to any due process of law; nor deny to any person within its jurisdiction the equal person within its jurisdiction the equal protection of the laws.protection of the laws.

TM

Interpreting the Due Process Interpreting the Due Process ClauseClause

Prior decisions, also known as precedents, had already Prior decisions, also known as precedents, had already established that the Due Process Clause of the Fourteenth established that the Due Process Clause of the Fourteenth Amendment guaranteed the right to “a fair trial in a fair tribunal.” Amendment guaranteed the right to “a fair trial in a fair tribunal.” However, judges must decide a case based upon the facts before However, judges must decide a case based upon the facts before them. In them. In CapertonCaperton, the United States Supreme Court was faced , the United States Supreme Court was faced with applying this established right to the new facts presented by with applying this established right to the new facts presented by Massey Coal’s efforts to influence the West Virginia Supreme Massey Coal’s efforts to influence the West Virginia Supreme Court of Appeals and, in particular, his efforts to influence the Court of Appeals and, in particular, his efforts to influence the outcome of Justice Benjamin’s election by financial support.outcome of Justice Benjamin’s election by financial support.

In other words, the United States Supreme Court was required In other words, the United States Supreme Court was required to interpret the Due Process Clause to determine whether Massey to interpret the Due Process Clause to determine whether Massey Coal’s substantial financial support of Justice Benjamin made the Coal’s substantial financial support of Justice Benjamin made the risk of actual bias against Caperton so high that the guarantee of risk of actual bias against Caperton so high that the guarantee of a “fair proceeding in a fair tribunal” was violated. a “fair proceeding in a fair tribunal” was violated.

TM

Prior Precedent—Prior Precedent—Tumey v. Tumey v. OhioOhio, 273 U.S. 510 (1927), 273 U.S. 510 (1927)

• In In TumeyTumey, a village mayor also acted as a local judge with no jury to , a village mayor also acted as a local judge with no jury to determine whether defendants had violated Ohio’s laws prohibiting the determine whether defendants had violated Ohio’s laws prohibiting the possession of alcohol. There were two potential bias problems with this possession of alcohol. There were two potential bias problems with this arrangement:arrangement:

(1) The mayor received additional salary for performing his judicial (1) The mayor received additional salary for performing his judicial duties, and the funds to support this additional salary came from duties, and the funds to support this additional salary came from fines imposed upon convicted defendants. So, the mayor was not fines imposed upon convicted defendants. So, the mayor was not paid as a judicial officer paid as a judicial officer unless he convicted defendantsunless he convicted defendants;;

(2) Some of the criminal fines were also deposited in the village’s (2) Some of the criminal fines were also deposited in the village’s general treasury for village improvements and repairs.general treasury for village improvements and repairs.

For these reasons, the United States Supreme Court in the For these reasons, the United States Supreme Court in the TumeyTumey case held that the Due Process Clause required the mayor-judge to case held that the Due Process Clause required the mayor-judge to remove himself from these cases: “Every procedure which . . . might remove himself from these cases: “Every procedure which . . . might lead [a judge] not to hold the balance nice, clear and true . . . denies . lead [a judge] not to hold the balance nice, clear and true . . . denies . . . due process of law.”. . due process of law.” TM

Prior Precedent—Prior Precedent—Ward v. Ward v. MonroevilleMonroeville, 409 U.S. 57 (1972), 409 U.S. 57 (1972)

• The The MonroevilleMonroeville case also involved a “mayor’s case also involved a “mayor’s court,” but differed from the court,” but differed from the TumeyTumey case because case because the mayor-judge in the mayor-judge in MonroevilleMonroeville did not receive a did not receive a salary from criminal fines; instead, the fines simply salary from criminal fines; instead, the fines simply went into the town’s general treasury fund.went into the town’s general treasury fund.

• This factual difference was not important to the This factual difference was not important to the MonroevilleMonroeville Court: “The fact that the mayor [in Court: “The fact that the mayor [in TumeyTumey] shared directly in the fees and costs did ] shared directly in the fees and costs did not define the limits of the principle.” not define the limits of the principle.”

TM

Prior Precedent—Prior Precedent—Aetna Life Ins. Aetna Life Ins. Co. v. LavoieCo. v. Lavoie, 475 U.S. 813 (1986), 475 U.S. 813 (1986)

• In In LavoieLavoie, a justice of the Alabama Supreme Court cast the , a justice of the Alabama Supreme Court cast the

deciding vote to uphold a punitive damages award against an deciding vote to uphold a punitive damages award against an insurance company despite the fact that, at the time of his insurance company despite the fact that, at the time of his vote, the justice was the lead plaintiff in a nearly identical vote, the justice was the lead plaintiff in a nearly identical lawsuit pending against an insurance company in a lower lawsuit pending against an insurance company in a lower Alabama court.Alabama court.

• The United States Supreme Court explained that it was not The United States Supreme Court explained that it was not required to determine whether this Alabama justice was required to determine whether this Alabama justice was actually biased or influenced to act against the insurance actually biased or influenced to act against the insurance company. Instead, the United States Court held that the company. Instead, the United States Court held that the correct test, under these circumstances, was “whether sitting correct test, under these circumstances, was “whether sitting on the case then before the Supreme Court of Alabama would on the case then before the Supreme Court of Alabama would offer a possible temptation to the average . . . judge to . . . offer a possible temptation to the average . . . judge to . . . lead him not to hold the balance nice, clear and true.” The lead him not to hold the balance nice, clear and true.” The Court also clarified that “what degree or kind of interest is Court also clarified that “what degree or kind of interest is sufficient to [constitutionally] disqualify a judge from sitting sufficient to [constitutionally] disqualify a judge from sitting ‘cannot be defined with precision.’” ‘cannot be defined with precision.’”

TM

Prior Precedent—Prior Precedent—In re In re MurchisonMurchison, 349 U.S. 133 (1955), 349 U.S. 133 (1955)

• MurchisonMurchison involved a judge who found two defendants to be involved a judge who found two defendants to be

in direct criminal contempt. In other words, in the judge’s in direct criminal contempt. In other words, in the judge’s view, the defendants had committed some act in court, in his view, the defendants had committed some act in court, in his presence, that amounted to a criminal offense. In this case, presence, that amounted to a criminal offense. In this case, the alleged offense was perjury (lying under oath). This same the alleged offense was perjury (lying under oath). This same judge then tried, convicted, and sentenced the defendants judge then tried, convicted, and sentenced the defendants for perjury.for perjury.

• The United States Supreme Court set aside these convictions The United States Supreme Court set aside these convictions on the grounds that the judge had a conflict of interest—he on the grounds that the judge had a conflict of interest—he bothboth charged the defendants with crimes charged the defendants with crimes andand acted as judge acted as judge and jury in trying, convicting, and sentencing them for these and jury in trying, convicting, and sentencing them for these same offenses. The Due Process Clause required that the same offenses. The Due Process Clause required that the judge remove himself in this situation. The Court concluded judge remove himself in this situation. The Court concluded that the general rule was that “no man can be a judge in his that the general rule was that “no man can be a judge in his own case,” and that “no man is permitted to try cases where own case,” and that “no man is permitted to try cases where he has an interest in the outcome.”he has an interest in the outcome.” TM

Prior Precedent—Prior Precedent—Mayberry Mayberry v. Pennsylvaniav. Pennsylvania, 400 U.S. 455 , 400 U.S. 455

(1971)(1971)

• MayberryMayberry also involved direct criminal contempt. also involved direct criminal contempt. Similar to Similar to MurchisonMurchison, a single judge alleged that , a single judge alleged that contempt had occurred and also tried the contempt had occurred and also tried the defendants for the contempt offenses.defendants for the contempt offenses.

• The United States Supreme Court reversed these The United States Supreme Court reversed these convictions and held that, because of the high convictions and held that, because of the high potential for bias, the Due Process Clause required potential for bias, the Due Process Clause required that “a defendant in criminal contempt that “a defendant in criminal contempt proceedings . . . be given a public trial before a proceedings . . . be given a public trial before a judge other than the one” who witnessed the judge other than the one” who witnessed the alleged contempt.alleged contempt.

TM

So, do all prior cases hold that a So, do all prior cases hold that a judge must be recused whenever judge must be recused whenever he or she has a prior relationship he or she has a prior relationship with a party or a party’s attorney with a party or a party’s attorney who is now appearing before him who is now appearing before him

or her?or her?

TM

ANSWER: ANSWER: NONO

TM

In re Allied-Signal, Inc.In re Allied-Signal, Inc., 891 F.2d 974 (1st Cir. , 891 F.2d 974 (1st Cir. 1989)1989)

• Defendants in litigation that involved a hotel fire filed a Defendants in litigation that involved a hotel fire filed a

motion which sought recusal of the presiding judge.motion which sought recusal of the presiding judge.

• One of the plaintiffs’ attorneys had previously loaned $50,000 One of the plaintiffs’ attorneys had previously loaned $50,000 to the judge, before the judge was appointed to the federal to the judge, before the judge was appointed to the federal bench. The judge had repaid the loan before he was bench. The judge had repaid the loan before he was appointed. appointed.

• The federal appellate court held that the recusal of the judge The federal appellate court held that the recusal of the judge was not required: “We do not see how a series of social or was not required: “We do not see how a series of social or business relationships of the sort of which petitioners business relationships of the sort of which petitioners complain, between a judge and lawyer, taking place more complain, between a judge and lawyer, taking place more than eight years ago, before the judge's appointment, could than eight years ago, before the judge's appointment, could cast significant doubt on the judge's impartiality.”cast significant doubt on the judge's impartiality.”

TM

Nathanson v. KorvickNathanson v. Korvick, 577 So.2d 943, 577 So.2d 943 (Fla. 1991)(Fla. 1991)

• Wife in alimony modification proceeding sought to recuse the Wife in alimony modification proceeding sought to recuse the

presiding judge because the attorney representing her ex-presiding judge because the attorney representing her ex-husband had contributed to the judge’s political campaign husband had contributed to the judge’s political campaign and had served on the campaign committee for the judge.and had served on the campaign committee for the judge.

• The Florida Supreme Court held that judges are not required The Florida Supreme Court held that judges are not required to disqualify themselves from cases based solely upon an to disqualify themselves from cases based solely upon an allegation that an attorney or litigant made a campaign allegation that an attorney or litigant made a campaign contribution to the political campaign of the judge. “As long contribution to the political campaign of the judge. “As long as the citizens of Florida require judges to face the as the citizens of Florida require judges to face the electorate, either through election or retention, ‘the resultant electorate, either through election or retention, ‘the resultant contributions to those campaigns . . . are necessary contributions to those campaigns . . . are necessary components of our judicial system.’ We do not find that components of our judicial system.’ We do not find that ‘contributions’ are limited to financial ones, and thus do not ‘contributions’ are limited to financial ones, and thus do not distinguish between financial contributions and services on a distinguish between financial contributions and services on a campaign committee.” campaign committee.”

TM

Zaias v. KayeZaias v. Kaye, 643 So.2d 687 (Fla. 3d DCA 1994), 643 So.2d 687 (Fla. 3d DCA 1994)

• A party sought to disqualify a judge in a case because A party sought to disqualify a judge in a case because

opposing counsel had previously contributed to the judge’s opposing counsel had previously contributed to the judge’s political campaign and served on one of the campaign political campaign and served on one of the campaign committees for the judge.committees for the judge.

• Relying on the Florida Supreme Court’s decision in Relying on the Florida Supreme Court’s decision in NathansonNathanson, the Third District Court of Appeal in Florida held , the Third District Court of Appeal in Florida held that recusal of the judge from the case was not required.that recusal of the judge from the case was not required.

• The Third District distinguished The Third District distinguished ZaiasZaias from another case, from another case, Barber v. McKenzieBarber v. McKenzie, 562 So. 2d 755 (Fla. 3d DCA 1990), , 562 So. 2d 755 (Fla. 3d DCA 1990), where opposing counsel served as a member of the judge’s where opposing counsel served as a member of the judge’s contemporaneously activecontemporaneously active campaign committee. In campaign committee. In BarberBarber, , the Third District determined that recusal of the presiding the Third District determined that recusal of the presiding judge was required.judge was required.

TM

CapertonCaperton and Due-Process and Due-Process PrecedentPrecedent

• As you now know, As you now know, CapertonCaperton did not involve a judge who had a did not involve a judge who had a direct financial interest in the case or a judge who witnessed direct financial interest in the case or a judge who witnessed direct criminal contempt.direct criminal contempt.

• The United States Supreme Court possessed rules of law from The United States Supreme Court possessed rules of law from

prior cases (precedents) involving different facts, but was now prior cases (precedents) involving different facts, but was now required to apply these precedents to a new situation: A required to apply these precedents to a new situation: A powerful businessman had given millions of dollars to elect one powerful businessman had given millions of dollars to elect one of the justices of the West Virginia Supreme Court of Appeals, of the justices of the West Virginia Supreme Court of Appeals, who would then decide whether this businessman’s company who would then decide whether this businessman’s company was required to pay a court judgment of $50 million.was required to pay a court judgment of $50 million.

• This is an important lesson because appellate courts are This is an important lesson because appellate courts are frequently asked to interpret prior cases to address new frequently asked to interpret prior cases to address new situations that have not been previously addressed in situations that have not been previously addressed in reported decisions. Using legal rules from precedents to reported decisions. Using legal rules from precedents to address new situations is the responsibility of judges.address new situations is the responsibility of judges.

TM

Applying PrecedentApplying Precedent

• Before we discover how the United States Before we discover how the United States Supreme Court decided Supreme Court decided CapertonCaperton, ask , ask yourself the following questions and yourself the following questions and provide written answers based upon the provide written answers based upon the precedents that we have discussed:precedents that we have discussed:

TM

(1) If you were in the position of (1) If you were in the position of Caperton, would you as an objective Caperton, would you as an objective person have felt that Justice Benjamin person have felt that Justice Benjamin could have impartially participated in could have impartially participated in this case after receiving millions of this case after receiving millions of dollars in campaign support from this dollars in campaign support from this businessman (Massey Coal).businessman (Massey Coal).

TM

(2) Is it possible to receive the “fair (2) Is it possible to receive the “fair proceeding in a fair tribunal” proceeding in a fair tribunal” guaranteed by the Due Process Clause guaranteed by the Due Process Clause when an opposing party has recently when an opposing party has recently donated millions of dollars to help elect donated millions of dollars to help elect one of the appellate judges?one of the appellate judges?

TM

(3) Did Justice Benjamin violate the (3) Did Justice Benjamin violate the legal rule that “no man is permitted to legal rule that “no man is permitted to try cases where he has an interest in try cases where he has an interest in the outcome?” Was his interest in the the outcome?” Was his interest in the CapertonCaperton case strong or direct enough case strong or direct enough to trigger this rule?to trigger this rule?

TM

• Form groups of 5Form groups of 5

• Choose a Chief JusticeChoose a Chief Justice

• Chief Justice Maintains OrderChief Justice Maintains Order

• Poll the Justices. How did each one of you Poll the Justices. How did each one of you

answer the questions and why?answer the questions and why?

• Try to reach a unanimous decision. Did Justice Try to reach a unanimous decision. Did Justice

Benjamin’s participation violate the Due Benjamin’s participation violate the Due

Process Clause?Process Clause?

• You have You have 10 minutes10 minutes to discuss then take a to discuss then take a

final poll.final poll.

TM

What Did the What Did the Real Court Real Court

Decide?Decide?

TM

The United States The United States Supreme Court’s Supreme Court’s

Decision in Decision in CapertonCaperton—Vote Breakdown—Vote Breakdown

TM

A majority of the United States A majority of the United States Supreme Court held that the Due Supreme Court held that the Due Process Clause required that Process Clause required that Justice Benjamin remove himself Justice Benjamin remove himself from the from the CapertonCaperton case. Justice case. Justice Anthony Kennedy wrote the Anthony Kennedy wrote the majority opinion, joined by Justices majority opinion, joined by Justices John Paul Stevens, David Souter, John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Ruth Bader Ginsburg, and Stephen Breyer.Breyer.

TM

Chief Justice John Roberts dissented, meaning that he Chief Justice John Roberts dissented, meaning that he disagreed with the majority’s decision, and Justices disagreed with the majority’s decision, and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito Antonin Scalia, Clarence Thomas, and Samuel Alito joined this dissent.joined this dissent.

A majority acts “as the Court,” but a dissent only A majority acts “as the Court,” but a dissent only expresses the personal views of the dissenting expresses the personal views of the dissenting justicesjustices..

TM

Court’s AnalysisCourt’s Analysis

TM

• The Court highlighted that it did not The Court highlighted that it did not question Justice Benjamin’s question Justice Benjamin’s personal view that he was non-personal view that he was non-biased and impartial, and it did not biased and impartial, and it did not consider whether bias actually consider whether bias actually existed. Instead, it answered existed. Instead, it answered “whether the average judge in his “whether the average judge in his position [wa]s ‘likely’ to be neutral, position [wa]s ‘likely’ to be neutral, or whether there [wa]s an or whether there [wa]s an unconstitutional ‘unconstitutional ‘potentialpotential for bias.’” for bias.’”

TM

• The Court held that the due-process The Court held that the due-process inquiry is objective and is concerned with inquiry is objective and is concerned with the potential for bias viewed from the the potential for bias viewed from the perspective of a party. “Not every perspective of a party. “Not every campaign contribution by a litigant or campaign contribution by a litigant or attorney creates a probability of bias that attorney creates a probability of bias that requires” a judge to remove him- or requires” a judge to remove him- or herself. This was an “herself. This was an “exceptional caseexceptional case” ” that required Justice Benjamin’s removal that required Justice Benjamin’s removal due to due to (1)(1) the timing of the election the timing of the election andand (2)(2) the substantial amount of money that the substantial amount of money that the businessman donated to support the businessman donated to support Justice Benjamin’s election to the West Justice Benjamin’s election to the West Virginia Supreme Court of Appeals.Virginia Supreme Court of Appeals.

TM

• Just as no man is allowed to be a Just as no man is allowed to be a judge in his own cause, similar fears judge in his own cause, similar fears of bias can arise when—without the of bias can arise when—without the consent of the other parties—a man consent of the other parties—a man chooses the judge in his own cause. chooses the judge in his own cause. Applying this principle to the judicial Applying this principle to the judicial election process, there was a election process, there was a serious, objective risk of actual bias serious, objective risk of actual bias that required Justice Benjamin’s that required Justice Benjamin’s recusal.recusal.

TM

• The dissent accused the majority of The dissent accused the majority of (1) failing to provide a workable (1) failing to provide a workable rule, (2) leaving too many questions rule, (2) leaving too many questions unanswered, and (3) incorrectly unanswered, and (3) incorrectly expanding prior precedent to a new expanding prior precedent to a new situation. However, the dissent was situation. However, the dissent was willing to admit that there are cases willing to admit that there are cases where a “probability of bias” should where a “probability of bias” should lead the prudent judge to step lead the prudent judge to step aside, but the judge fails to do so—aside, but the judge fails to do so—and the present case may be one and the present case may be one such case.such case.

TM

Return to Our Return to Our Original Questions.Original Questions.

TM

What is the Judiciary’s Role in a What is the Judiciary’s Role in a Constitutional Republic?Constitutional Republic?

Are judges, like legislators and governors, Are judges, like legislators and governors, politicians who are designed to be subject politicians who are designed to be subject to the will of their constituents?to the will of their constituents?

Is it proper for judges to campaign for Is it proper for judges to campaign for votes, to fundraise, and, in the process, to votes, to fundraise, and, in the process, to anticipate and address legal issues that anticipate and address legal issues that may be raised in future cases?may be raised in future cases?

Should judges be influenced by the lobby Should judges be influenced by the lobby efforts of interest groups for support as efforts of interest groups for support as are legislators and executive-branch are legislators and executive-branch officials? officials?

TM

Did the United States Did the United States Supreme Court’s Decision Supreme Court’s Decision in in CapertonCaperton Answer Any of Answer Any of These Questions or Provide These Questions or Provide

Some Hints?Some Hints?

TM

The Predominant View of Our The Predominant View of Our Founding FathersFounding Fathers

TM

Are judges, like legislators Are judges, like legislators and governors, politicians who and governors, politicians who are subject to the will of their are subject to the will of their constituents?constituents?

TM

NoNo, judges are not politicians. , judges are not politicians. They do not represent a They do not represent a particular constituency. particular constituency. Instead, they represent the law Instead, they represent the law and are bound to interpret and and are bound to interpret and follow its requirements. The follow its requirements. The judicial branch of government judicial branch of government is “to secure a steady, upright, is “to secure a steady, upright, and impartial administration of and impartial administration of the laws.”the laws.”

TM

Is it proper for judges to Is it proper for judges to campaign for votes, to campaign for votes, to fundraise, and, in the process, fundraise, and, in the process, to anticipate and address to anticipate and address legal issues that may be legal issues that may be raised in future cases?raised in future cases?

TM

NoNo, at least on the federal level, , at least on the federal level, electioneering, campaigning, and electioneering, campaigning, and lobbying for votes is inconsistent with lobbying for votes is inconsistent with the judicial role: The independence of the judicial role: The independence of judges is equally requisite to guard the judges is equally requisite to guard the Constitution and the rights of Constitution and the rights of individuals from the effects of those ill individuals from the effects of those ill humors, which the arts of designing humors, which the arts of designing men, or the influence of particular men, or the influence of particular conjectures, that sometimes conjectures, that sometimes disseminate among the people disseminate among the people themselves.themselves.TM

Should judges be influenced Should judges be influenced by the lobby efforts of interest by the lobby efforts of interest groups for support as are groups for support as are legislators and executive-legislators and executive-branch officials?branch officials?

TM

NoNo, such attempts fundamentally , such attempts fundamentally undermine the judiciary and seek to undermine the judiciary and seek to turn judges into another type of turn judges into another type of politician. Under such a system “there politician. Under such a system “there would be too great a disposition to would be too great a disposition to consult popularity, [rather than] a consult popularity, [rather than] a reliance [on] . . . the Constitution and reliance [on] . . . the Constitution and the laws.” The judiciary should be the the laws.” The judiciary should be the non-politicalnon-political branch of government. branch of government. “The legitimacy of the Judicial “The legitimacy of the Judicial Branch . . . depends on its reputation Branch . . . depends on its reputation for impartiality and nonpartisanship.” for impartiality and nonpartisanship.”

TM

FLORIDA JUSTICES AND FLORIDA JUSTICES AND JUDGES JUDGES ARE DIFFERENTARE DIFFERENT

TM

Justices on the Florida Supreme Court and Justices on the Florida Supreme Court and judges on Florida’s district courts of appeal are judges on Florida’s district courts of appeal are notnot selected through contested elections. selected through contested elections. When a vacancy occurs on one of these When a vacancy occurs on one of these appellate courts, an independent judicial appellate courts, an independent judicial nominating commission selects a group of nominating commission selects a group of several judicial candidates from which the several judicial candidates from which the governor selects a single candidate to become governor selects a single candidate to become a justice or judge. Each six years following a justice or judge. Each six years following appointment, a justice or appellate judge is appointment, a justice or appellate judge is subject to a yes-or-no, non-contested retention subject to a yes-or-no, non-contested retention election.election.

TM

Article V, section 11(a) of the Florida Article V, section 11(a) of the Florida Constitution provides:Constitution provides:

“ “Whenever a vacancy occurs in a judicial office Whenever a vacancy occurs in a judicial office to which election for retention applies, the to which election for retention applies, the governor shall fill the vacancy by appointing . . . governor shall fill the vacancy by appointing . . . one of not fewer than three persons nor more one of not fewer than three persons nor more than six persons nominated by the appropriate than six persons nominated by the appropriate judicial nominating commission.” judicial nominating commission.”

TM

Article V, section 10(a) of the Florida Article V, section 10(a) of the Florida Constitution provides:Constitution provides:

““Any justice or judge may qualify for retention by a vote of Any justice or judge may qualify for retention by a vote of the electors in the general election next preceding the the electors in the general election next preceding the expiration of the justice's or judge's term in the manner expiration of the justice's or judge's term in the manner prescribed by law. . . . When a justice or judge so qualifies, prescribed by law. . . . When a justice or judge so qualifies, the ballot shall read substantially as follows: "Shall Justice (or the ballot shall read substantially as follows: "Shall Justice (or Judge) (name of justice or judge) of the (name of the court) Judge) (name of justice or judge) of the (name of the court) be retained in office?" If a majority of the qualified electors be retained in office?" If a majority of the qualified electors voting within the territorial jurisdiction of the court vote to voting within the territorial jurisdiction of the court vote to retain, the justice or judge shall be retained for a term of six retain, the justice or judge shall be retained for a term of six years. . . . If a majority of the qualified electors voting within years. . . . If a majority of the qualified electors voting within the territorial jurisdiction of the court vote to not retain, a the territorial jurisdiction of the court vote to not retain, a vacancy shall exist in that office upon the expiration of the vacancy shall exist in that office upon the expiration of the term being served by the justice or judge.” term being served by the justice or judge.”

TM

Florida’s trial judges are selected Florida’s trial judges are selected through nominally non-partisan, through nominally non-partisan, contested judicial elections. contested judicial elections.

TM

Article V, section 10(b) of the Florida Article V, section 10(b) of the Florida Constitution provides:Constitution provides:

(1) The election of circuit judges shall be preserved . . . (1) The election of circuit judges shall be preserved . . . unless a majority of those voting in the jurisdiction of that unless a majority of those voting in the jurisdiction of that circuit approves a local option to select circuit judges by circuit approves a local option to select circuit judges by merit selection and retention rather than by election. The merit selection and retention rather than by election. The election of circuit judges shall be by a vote of the qualified election of circuit judges shall be by a vote of the qualified electors within the territorial jurisdiction of the court. electors within the territorial jurisdiction of the court.

(2) The election of county court judges shall be preserved . . (2) The election of county court judges shall be preserved . . . unless a majority of those voting in the jurisdiction of that . unless a majority of those voting in the jurisdiction of that county approves a local option to select county judges by county approves a local option to select county judges by merit selection and retention rather than by election. The merit selection and retention rather than by election. The election of county court judges shall be by a vote of the election of county court judges shall be by a vote of the qualified electors within the territorial jurisdiction of the qualified electors within the territorial jurisdiction of the court. court.

TM

Judicial Elections Judicial Elections NationwideNationwide

TM

Federal judges are appointed by the Federal judges are appointed by the President of the United States upon the President of the United States upon the advice and consent of the United States advice and consent of the United States Senate. The framers of the United States Senate. The framers of the United States Constitution Constitution rejectedrejected judicial elections as judicial elections as incompatible with the judicial role.incompatible with the judicial role.

TM

Article II, section 2 of the United States Article II, section 2 of the United States Constitution provides:Constitution provides:

““[The President] shall have Power, by and with the [The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of President alone, in the Courts of Law, or in the Heads of Departments.”Departments.”

TM

Even though the United States Even though the United States Constitution provides for the Constitution provides for the appointment of federal judges, 39 appointment of federal judges, 39 states employ some form of state states employ some form of state judicial elections.judicial elections.

TM

Millions of dollars are now spent each election Millions of dollars are now spent each election cycle by businesses, attorneys, and political cycle by businesses, attorneys, and political groups to support the election of judicial groups to support the election of judicial candidates whom they favor and whom they candidates whom they favor and whom they will appear before in court. This is what will appear before in court. This is what occurred in occurred in CapertonCaperton. The result is that judicial . The result is that judicial elections now involve political campaigns that elections now involve political campaigns that would be typical for most legislators. But, would be typical for most legislators. But, remember, judges are remember, judges are notnot politicians, and politicians, and “[t]he legitimacy of the Judicial Branch . . . “[t]he legitimacy of the Judicial Branch . . . depends on its reputation for depends on its reputation for impartialityimpartiality and and nonpartisanshipnonpartisanship.”.”

TM

Two national surveys Two national surveys conducted during 2001 conducted during 2001 disclosed that 76% of voters disclosed that 76% of voters and 26% of judges believe and 26% of judges believe that campaign contributors that campaign contributors had some influence on judges’ had some influence on judges’ rulings. rulings.

TM

We Must Maintain We Must Maintain Independent and Impartial Independent and Impartial Judges on the State LevelJudges on the State Level

TM

Due to the increasingly partisan, money-Due to the increasingly partisan, money-driven nature of contested judicial driven nature of contested judicial elections, there is a growing movement elections, there is a growing movement among the American judiciary and legal among the American judiciary and legal community to end contested judicial community to end contested judicial elections as incompatible with the proper elections as incompatible with the proper role of the judiciary.role of the judiciary.

TM

For example, as a member of the United States For example, as a member of the United States Supreme Court, Justice Sandra Day O’Connor observed: Supreme Court, Justice Sandra Day O’Connor observed:

““[T]he very practice of electing judges undermines th[e] [T]he very practice of electing judges undermines th[e] interest [in an impartial judiciary]. We . . . want judges to be interest [in an impartial judiciary]. We . . . want judges to be impartial, . . . [b]ut if judges are subject to regular elections impartial, . . . [b]ut if judges are subject to regular elections they are likely to feel that they have at least some personal they are likely to feel that they have at least some personal stake in the outcome of every publicized case. Elected judges stake in the outcome of every publicized case. Elected judges cannot help being aware that if the public is not satisfied with cannot help being aware that if the public is not satisfied with the outcome of a particular case, it could hurt their reelection the outcome of a particular case, it could hurt their reelection prospects. . . . Moreover, contested elections generally entail prospects. . . . Moreover, contested elections generally entail campaigning. And campaigning for a judicial post today can campaigning. And campaigning for a judicial post today can require substantial funds. . . . [R]elying on campaign donations require substantial funds. . . . [R]elying on campaign donations may leave judges feeling indebted to certain parties or interest may leave judges feeling indebted to certain parties or interest groups. . . . Even if judges were able to refrain from favoring groups. . . . Even if judges were able to refrain from favoring donors, the mere possibility that judges’ decisions may be donors, the mere possibility that judges’ decisions may be motivated by the desire to repay campaign contributors is motivated by the desire to repay campaign contributors is likely to undermine the public’s confidence in the judiciary.”likely to undermine the public’s confidence in the judiciary.”

TM

FREEDOM Survives Only with FREEDOM Survives Only with a FREE, Independent and a FREE, Independent and Impartial Judicial BranchImpartial Judicial Branch

TM