By Gary Blankenship
There is no doubt that special interest groups seeking favorable rulings from courts are behind a series of electoral challenges to states’ supreme court justices and those challenges are likely to continue — even, perhaps, in Florida.
Georgia Supreme Court Chief Justice Carol Hunstein, speaking at the Choosing Our Judges seminar at the Bar’s Annual Convention, told how a business group recruited a challenger to her 2006 reelection campaign, then pumped $1.2 million into a political action committee to support her opponent.
She was one of several panel members who spoke about the increasing politicization — and corresponding skyrocketing expense — of state supreme court contests, including states like Florida where appellate judges are on a merit retention ballot and don’t face opposing candidates.
The Florida Bar has launched an education initiative to teach voters about the merit process and how it came about, which was also discussed at the symposium.
Hunstein said the trend of opposing sitting state supreme court justices started in Texas by business groups supporting tort reform legislation. It then moved to Alabama and other states, and until her 2006 campaign, those interests were mostly successful in defeating incumbent state supreme court justices.
“You have entities, special interest groups, who have targeted the judicial system. It’s not an accident. It’s not cultural; it’s not what people think about their judges. This is a targeted attack on the judicial system, in my opinion,” Hunstein said.
In Hunstein’s case, a conglomeration of insurance companies recruited her opponent, then pumped money into the political action committee that ran ads both for her opponent and targeting her.
“It was a dreadful and dangerous race,” Hunstein said, adding that if she had lost, “every judge in the state of Georgia would have been intimidated.”
Hunstein said she saw her race as a referendum “about the independence of the judicial system in the state of Georgia.”
Between direct contributions to her opponent and the PAC, Chief Justice Hunstein said she was outspent three to one, but still prevailed with 63 percent of the vote. A major reason why, she said, was the involvement of lawyers who sent out emails, letters, and postcards in her defense.
Chief Justice Hunstein warned that Florida could be next.
“You’re going to see big money come into this state [in retention elections], so it’s time for you to wake up,” Hunstein said. “This is a historic and incredibly important moment.”
Outgoing Bar President Scott Hawkins, who made the event a presidential showcase at the convention, opened the program by saying the Bar plans to address the “historic” moment with its voter education program — “The Vote’s in Your Court. Judicial Merit Retention. Know the Facts.” The program notes that the merit selection and retention system for the appellate bench was adopted by voters in 1976, after a judicial scandal at the Florida Supreme Court.
Hawkins told attendees that Bar polls show only 10 percent of Florida voters fully understand the merit retention process, and 30 percent of those who cast ballots in high profile elections at the top of ballots fail to reach the judicial contests, which are usually at the bottom of the ballot. To that end, the Board of Governors decided to launch the education initiative.
Like Hunstein, Hawkins said lawyers will have an important role to play because voters will look to them for guidance.
“Our objective today is to increase the level of understanding, to try to give you some reference points,” Hawkins said. “The goal here is not partisan, is not about a particular court. It’s not about a particular judge or justice. It’s about trying to elevate the level of understanding and awareness about this incredibly important topic.”
Retired U.S. Supreme Court Justice Sandra Day O’Connor, who has been promoting civics education and the importance of an independent judiciary since leaving the court, was scheduled to appear at the seminar. But Hawkins said her flight to Orlando had been grounded by mechanical difficulties. So instead, the audience watched videoed comments O’Connor made at a 2008 conference.
“Judicial independence is hard to define. It does not mean the freedom to decide cases based on the judge’s personal preference, that’s not what it means. It means that judges are required to decide issues fairly and impartially based on the law and the Constitution without the fear of retaliation by the other two branches,” O’Connor said. “Judicial independence does not happen all by itself. It’s hard to create, and it’s easier than most people imagine to damage and destroy.”
She decried the increasing involvement of interest groups in judicial elections, which have led to a flood of money and “harsh and unfair” attacks on judges. Those factors by themselves can discourage many qualified candidates from seeking judgeships.
“The greater danger is that the whole system will become contaminated by the appearance of improper influence,” O’Connor said. “When so much money goes into influencing the outcome of judicial races, it’s hard to believe we are electing judges who are totally fair and impartial, and we lose faith in the judicial system.”
Bert Brandenburg, of the Washington, D.C.,- based Justice at Stake, said money spent on state supreme court elections has more than doubled in recent years, and the most recent elections have seen that explosion in spending extend from states with contested races to states with merit retention elections. Much of the money, he said, comes from a few out-of-state groups, and in the most recent elections 40 percent of the money in state supreme court races came from just 10 groups.
The top five contributors in the 10 most expensive states spent an average of $473,000 each in those campaigns; the remaining 116,000 contributors averaged $850, Brandenburg said. The result is that increasingly the winners owe their success to a small group of powerful supporters.
“We believe the rapid and radical transformation of judicial elections is the biggest democracy issue that most Americans are not hearing about,” Brandenburg said.
Former Bar President Jesse Diner said the three Florida Supreme Court justices up for merit retention this year — Fred Lewis, Barbara Pariente, and Peggy Quince — have begun raising money in anticipation of active opposition. And such opposition could come on short notice in the last six to eight weeks before the election, he said.
The Bar, he said, must tell voters that “courts in a civilized society decide disputes, and that’s different from what a legislative or executive branch does. That’s what we’ve got to get across to people, and it’s not easy.”
Retired St. Petersburg Times (now the Tampa Bay Times) journalist Martin Dyckman recounted some of the lapses on the Florida Supreme Court in the early 1970s that led to Florida adopting the merit system for the appellate bench. He also detailed that era in his book, A Most Disorderly Court: Scandal and Reform in the Florida Judiciary.
“Politics were inherent in every one of the troubles that the justices got involved in at that time,” Dyckman said. That involvement included two justices who interfered in lower court cases on behalf of campaign contributors and a lawyer for another contributor submitting an ex parte brief in a high profile case.
The resulting publicity, Judicial Qualifications Commission investigations, and impeachment proceedings led what had been a reluctant Legislature to draft a constitutional amendment instituting merit selection and retention for the appellate bench. Seventy-five percent of the voters approved that amendment in 1976, Dyckman noted.
Although there have been a few minor problems, “rarely has there been any reason to doubt the integrity of those nominated” by judicial nominating commissions, he said.
But the system was weakened in 2001. Dyckman said the constitution specifies that judicial nominating commissions will provide the governor with a list of candidates for appellate court seats and mid-term trial court vacancies, but left the makeup of those commissions to statute. The system established under Gov. Reubin Askew, a strong supporter of judicial reforms, had the governor appoint three members to each commission, the Bar appoint three, and those six select three public members.
In 2001, the Legislature changed that system to allow the governor to appoint all nine members of each commission, although four are chosen from slates nominated by the Bar. That change, Dyckman said, has increased politics in judicial appointments. He called on the Bar to sponsor a voter initiative drive to amend the constitution to return to the former way of selecting JNC members.
“The Legislature will not save the courts; it will take a voter initiative to do that,” he said. “If you don’t, the question is when, not if, the Florida Supreme Court will become a school for scandal once more.”
Former First District Court of Appeal Judge Peter Webster, now president of the American Judicature Society, provided a history of the merit selection retention process in the U.S., adding there is a measurable success of the system in Florida.
Between 1994 and 2008, 56 percent of the trial judges initially reached the bench through a mid-term merit selection appointment as opposed to direct election by voters. But of the trial judges disciplined through the Judicial Qualifications Commission process during that period, 70 percent were initially elected and 30 percent were merit-selected, he said.
Of the judges actually removed from office, 12 of 13 were initially elected.
“Judges should be different; they should be different in that they should be apolitical, and they should be different in that they decide cases based on the facts” independently from other branches and special interest groups, Webster said.
Former Florida Supreme Court Justice Major B. Harding said the process has changed since he was on the retention ballot in 1992 and 1998. He said he never had to campaign or raise money (although one of his colleagues did in 1992).
“The culture has changed in such a significant way, and I think we need to be very affirmative in reeducating the people,” Harding said.
A few years ago, there was a short-lived constitutional amendment initiative drive that would have removed judicial immunity, set up a citizens’ panel entitled to review any judge and any decision, and would have been funded by a levy on judicial salaries, he noted.
“If something like that were ever passed and put in the constitution, you wonder what would happen to the fair and impartial and whether judges would be intimidated to rule a certain way,” Harding said. “All of the judges in this room who have been on the bench any number of years have had cases that created public interest and emotional responses. If judges ever lose the ability to be fair and impartial and respond to those emotional responses, we will be in a sad state of affairs.”
Diner added just as the Bar used a multi-year education effort for legislators and the public on the importance of adequate funding for the courts, it must also have a long-term approach for its instructional efforts on merit retention.
“It isn’t only this year. I believe with the new climate, this needs to be an ongoing education process,” he said. “I think it’s time that we wake up and that certainly the Bar does whatever it can to educate people this year . . . but I think the Bar needs to take it on as a mantle to continue to educate people, maybe to be able to blunt these kinds of attacks that may come in the future.”
The Bar has posted materials about the merit process and upcoming election on its website, available by clicking on the “The Vote’s in Your Court” icon on its homepage at www.floridabar.org.