Election Of Judges in Johnson County
Posted by: Trey Pettlon
July 11, 2008
Topic: Election of Judges
Introducing Money and Popular Elections to the Courtroom
As an attorney, you can't give a judge money. That seems obvious enough. At worst, giving a judge money gifts can be viewed as an effort to bribe the court and at best, it has the appearance of impropriety. If you are a judge who takes gifts from attorneys, including money, you might end up in federal prison. Even lending a judge money may violate the rules of ethics for an attorney. For example, if an attorney lends money to a judge that he or she regularly appears before, it has the appearance of trying to sway the judge or buy the judge's favor and would violate the rules of ethics for the attorney and result in disciplinary action.
Even if the case ultimately is going to be decided by a jury, such as in a criminal case or a personal injury or wrongful death case, judges inevitably make decisions that are critical to the outcome of the case before it is over....ruling on evidence and ruling on motions that may limit one side's case or even dismiss it. In some cases, such as a divorce case, you wouldn't even have the protection of a the right to request a jury. Judges have broad discretion.
So when it comes to your case, for many the question comes down to whether you want to appear before an elected judge who must periodically run for election to keep his or her position , who must raise money from the attorneys and litigants who will appear before them...someone who must consider what decision would be popular or unpopular with the voting public...someone who may not necessarily be a respected member of the bar, but who is able to get popular support, or whether you would prefer to have your case decided by a judge who is not subject to political process.
If you don't think it matters that judges will periodically have to raise money for the political campaigns, consider this: let's assume you have a case before a particular judge. Would you would want to know if the attorney for the other party in your case had given the judge money? Would want to know if your attorney had ever given money to the judge? Would you worry about who gave more? What if you found out that the attorney for the other side had given considerable sums of money to the judge over the years? Or what if you found out that your attorney had spent considerable sums of money to actually try to keep the judge from becoming a judge? Do you think you would get a fair trial? Would you be worried about the possibility that the judge might be inclined to give favorable rulings to the attorney who has given him or her money? Should you have to worry about these things? Of course not. In a court of law, only the laws should guide the judge, without consideration for what is popular...or appealing to the voters. Unfortunately, if judges are elected, and if your case is important to you, you would have to be concerned.
This year Wisconsin Supreme Court Justice Louis B. Butler, Jr. was up for re-election and his challenger was a small-town trial judge with virtually no appellate court experience, Michael J. Gableman.1 In fact, Judge Gableman's experience included arguing one zoning case before the state Supreme Court.2
The election included "a bitter $5 million campaign" in which both sides launched "caustic advertisements...many from independent groups."3 The worst came when Judge Gableman ran a television advertisement falsely suggesting that the only black justice on the state Supreme Court [Justice Butler] had helped free a black rapist."4 The television ad juxtaposed "the images of his opponent, Justice Louis B. Butler, Jr., in judicial robes, with a photograph of Ruben Lee Mitchell, who had raped an 11-year old girl."5
"'Butler found a loophole,' the advertisement said. 'Mitchell went on to molest another child. Can Wisconsin families feel safe with Louis Butler on the Supreme Court?'"6 As it turns out, Gableman's ad was accurate only in that Justice Butler had represented Mitchell in his criminal case 20 years earlier.7 Although then-attorney Butler argued that his client was denied a fair trial, the Supreme Court found that any error committed during the trial was harmless and the convicted rapist was ordered to serve his full sentence.8 Only after serving his entire sentence did he commit another crime.9 In April 2008 Michael Gableman won 51% of the vote and will join the Supreme Court of Wisconsin in August.10
"There is reason to think, though, that the idea of popular control of the government...is an illusion when it comes to judges. Some political scientists say voters do not have anything near enough information to make sensible choices, in part because most judicial races rarely receive news coverage. When voters do have information, these experts say, it is often from sensational or misleading television advertisements."11
"'You don't get popular control out of this,' said Steven E. Schier, a professor of political science at Carleton College in Minnesota. 'When you vote with no information, you get the illusion of control. The overwhelming norm is no to low information.'"12
The election of judges will have undoubtedly a chilling effect on brave decisions by judges. No judge wants to be considered "soft" on crime for example. It's not uncommon for a criminal court judge to see a case where on the surface the defendant has committed a serious crime but once all the facts are carefully considered, prison is not the answer for this particular defendant. For the judge hearing that case, the just decision is to give the defendant a second chance...possibly with "shock time" in jail, or house arrest, community service, counseling, fines, probation and/or other sanctions.
To some extent, the judge might be taking a chance on a person that they will rehabilitate themselves. Criminal court judges take that chance every day. They can't lock up everyone and in a sense, the sentencing judge has taken that chance with every person that stands before them that they grant probation. The decision is to some extent a leap of faith...an act of bravery. Many times the decision or the reasons for the decision are complicated and they cannot be encapsulated in a "sound bite" or a headline. The much easier spin the next day is that the Judge is soft on crime. If the judge is free to make his decisions without fear that the decision will be unpopular with a voting electorate, he is more likely to make that brave decision.
One example might be the periodic criminal case that comes before the court involving a man charged with a very serious sex crime, and a prosecutor who has reviewed all the evidence but knows that it is likely that the Government will lose their case if they go to trial. Instead of losing the conviction and any consequences for the person who committed the crime, the Government agrees to allow a plea to a lesser charge and to recommend a relatively minor punishment, possibly probation with counseling and other requirements like sex offender registration. Plea negotiations play a vital role in making the system work. For the judge that is worried about a headline the next day that reads, "Sex Offender Gets Probation", and the effect that such a headline will have on their upcoming election, there will be considerable pressure to ignore the plea negotiations of the party...to make the "easy" decision and put the defendant behind bars. As a result, plea negotiations won't mean anything in that court and the next 5 or 10 defendants charged with serious sex offenses won't take the plea, will have their trial and, if the prosecutor's worry comes to fruition, will likely avoid all consequences for the crime.
When discussing the election of judges at a conference on judicial independence at Fordham Law School, former Supreme Court Justice Sandra Day O'Conner said of the election of judges: "No other nation in the world does that because they realize you're not going to get fair and impartial judges that way."13
"To the rest of the world, American adherence to judicial elections is as incomprehensible as our rejection of the metric system," Hans A. Linde, a retired justice of the Oregon Supreme Court, at a 1988 symposium on judicial selection.14 Under the rules of ethics, lawyers are not only not supposed to engage in 'improprieties', but they are supposed to avoid activities that have the 'appearance of impropriety'. The distinction between giving a judge money and donating money to his or her campaign probably is not so vast that the client who appears before the court is going to appreciate it if it turns out his lawyer did not give money and the other party's lawyer did.
"In the rest of the world, the usual selection methods emphasize technical skill and insulate judges from popular will, tilting in the direction of independence. The most common methods of judicial selection abroad are appointment by an executive branch official, which is how federal judges in the United States are chosen, and a sort of civil service made up of career professionals."15
"A working paper from the University of Chicago Law School last year tried to quantify the relative quality of elected and appointed judges in state high courts in the United States. It found that elected judges wrote more opinions, while appointed judges wrote opinions of higher quality."16 "'A simple explanation for our results,' wrote the paper's authors - Stephen J. Choi, G. Mitu Gulati and Eric A. Posner - 'is that electoral judgeships attract and reward politically savvy people, while appointed judgeships attract more professionally able people. However, the politically savvy people might give the public what it wants - adequate rather than great opinions, in greater quantity.'"17
As an attorney, I see terrific attorneys and very bad attorneys every day...attorneys that I would seek out if I ever needed an attorney, and others that I would never have represent me. I marvel at the poor client who faces the challenge of finding a good attorney for an important case. One irony in the industry is that many of the best attorneys are not very good at marketing themselves. Either they come from the old school where they simply don't believe in attorney advertising or they are simply reluctant to ever say anything remotely braggadocios about themselves while others will not be so reluctant. On the other hand, some of the less capable attorneys are very good at marketing themselves. For these reasons and undoubtedly others, in some cases there is almost an inverse relationship between how big a lawyer's ad is in the yellow pages and how good they are. I worry about the client who finds their attorney in the yellow pages and am always a little surprised when a new client calls me and tells me they found my name in the phone book.18
When we elect judges, we undoubtedly lose some of the best candidates...the ones that are quite capable at everything concerning the law but don't market themselves or are not political.
To be candid, a system where judges are elected would be bad for my practice in part because of the expense of continually paying judicial candidates. I would be one of the attorneys that donated substantial sums of money to candidates that I support. I would be one of the attorneys that would not be disadvantaged in most courtrooms because of the money that I would spend supporting judges, but certainly there would be judges I didn't support that would win election and bear some grudge against me. In those courts, if or when I lost cases, you would have a difficult time convincing my clients that my political contributions to the judge's political opponents did not affect the judge's decision in their case...whether that is true or not. The election of judges would quickly become a high stakes popularity contest that would inevitably yield some disastrous results.
1 "The New York Times", "Rendering Justice, With One Eye on Re-Election", by Adam Liptak, May 24, 2008.
2 Id.
3 Id.
4 Id.
5 Id.
6 Id.
7 Id.
8 Id.
9 Id.
10 Id.
11 Id.
12 Id.
13 Id.
14 Id.
15. Id.
16 Id. Citing "Professionals or Politicians: The Uncertain Empirical Case for an Elected Rather Than Appointed Judiciary", Stephen J. Choi, New York University School of Law, G. Mitu Gulati, Duke University School of Law, Eric A. Posner, University of Chicago School of Law, August 2007.
17 Id. Citing "Professionals or Politicians: The Uncertain Empirical Case for an Elected Rather Than Appointed Judiciary", Stephen J. Choi, New York University School of Law, G. Mitu Gulati, Duke University School of Law, Eric A. Posner, University of Chicago School of Law, August 2007.
18 Most of my clients find me because they were referred by other former or current clients or by other attorneys.
Topics
A Juvenile's Right to a Jury Trial in Kansas
C- End of 2007 Report
Election of Judges
Judge James Horton
Paul Morrison
Recent Updates
July 11, 2008
Election Of Judges in Johnson County
July 07, 2008
A Juvenile's Right to a Jury Trial
January 16, 2008
End of 2007 - State of the Office
January 16, 2008
Paul Morrison
December 12, 2007
Judge James Horton
