Session One: Recent Changes in the Law of Judicial Elections - Eric P. Schroeder, Cheryl Fisher Custer, Barbara E. Reed, and Patrick E. Longan, Moderator

• Citation: Vol. 56 No. 3
• Publication year: 2005

Symposium:

Judicial Professionalism in a New Era of Judicial Selection

October 22,2004

Session One: Recent Changes in the Law of Judicial Elections

DEAN FLOYD: Good morning and welcome. My name is Daisy Floyd. I serve as Dean here at Mercer University's Walter F. George School of Law. I am delighted to welcome you to Macon, to Mercer, and to our law school for this important and timely topic of Judicial Professionalism in a New Era of Judicial Selection.

This Symposium is jointly sponsored by the law school's Center for Legal Ethics and Professionalism and the Mercer Law Review. You will see from the program that today is divided into four different sessions, the first of those focusing on recent developments in the law surrounding judicial elections. Sessions two and three have to do with ways in which we can improve the selection of judges, and the fourth session is on exploring alternatives to the election of judges, It promises to be informative and provocative, and I am delighted that you are here to share in this experience.

I am going to turn the podium over to Professor Patrick Longan. Professor Longan is the William Augustus Bootle Chair in Ethics and Professionalism at Mercer, and he has been the driving force behind putting together today's program. So, again, welcome, and here is Professor Longan.

PROFESSOR LONGAN: Thank you for coming. As you see, the subject for our Symposium today is Judicial Professionalism in a New Era of Judicial Selection. That new era is the result of some recent cases involving the First Amendment rights of judicial candidates to speak about issues as part of judicial campaigns.

For many years there have been special rules about what judicial candidates can say during campaigns in recognition of the very different role that judges play in our system of government. Those rules are changing. With those changes come some new challenges in designing an effective system of judicial selection. They are changing primarily because of two cases: Republican Party of Minnesota v. White' and Weaver v. Bonner.² Our first panel this morning is here to discuss these recent cases and their implications for judicial campaigning.

Our speakers in the first panel are Barbara Reed, who is with us all the way from Roswell, New Mexico. Barbara is a consultant to The Constitution Project, an organization based at Georgetown University that is devoted, among other things, to public education and advocacy on the importance of judicial independence. Barbara will be discussing Republican Party of Minnesota v. White.

Joining Barbara on the panel are Eric Schroeder and Cheryl Custer. Cheryl is the Executive Director of the Georgia Judicial Qualifications Commission ("JQC"), which is one of the parties in Weaver v. Bonner. Eric is a partner at Powell, Goldstein in Atlanta, and was counsel to the Judicial Qualifications Commission in Weaver v. Bonner. They will be discussing Weaver and its implications.

MS. REED: Thank you. This is exciting for us to see this level of interest out in the various states.

I do a lot of work with the National Center for State Courts, and focus my work on the issues surrounding Republican Party of Minnesota v. White and the trends in judicial election law that surround it. It is always exciting to see that states are taking the initiative to resolve these problems on their own, and certainly here in Georgia you have made great progress despite some very nasty campaigns and some less than helpful decisions.

We have a PowerPoint presentation that was done for the National Center for State Courts back in February. We had a workshop in Dallas and Judge Studdard and Eric and a few other people from Georgia attended to learn more about these kinds of issues. And I will not subject you to the entire PowerPoint as it is rather lengthy, but there are a few major points throughout that highlight how we got here, what White actually said, what the implications are, and possibilities about where we go from here.

One of the first things that I always begin with, and my apologies for those of you who have heard me say this a gazillion times, but I always go back to the surveys that are done of the general public. Back in 1998, the Pennsylvania Supreme Court did a survey that found that 89 percent of the respondents, and this is a direct quote, "believed that money buys judicial favor most, some, or all of the time."

In 1999, according to a poll done by the Texas Supreme Court in conjunction with the Texas State Bar, 69 percent of court employees and 79 percent of lawyers believed that campaign contributions significantly influencedjudges' decisions. Forty-eight percent of the Texasjudges also believed that campaign contributions significantly influenced judges' decisions. And I am sure Chief Justice Phillips can provide plenty of insight into what Texas judges actually believe to be the case or know to be the case. In 1999, according to the National Center for State Courts, roughly 80 percent of respondents believed that campaign contributions and politics generally influence judges.

We have, over and over and over again, poll after poll after poll, found that the general public believes that if you make a contribution to a judge who is running for office, that contribution is going to buy you not just access but the decision that you want. As a practical matter, I do not think that it buys you much of anything, but what we have to deal with is the perception, and that is where decisions like White have made life so difficult for all of you.

Really, in looking at the law, this began with a case in Michigan called In re Chmura.³ In Chmura we had a state court judge who ran in Macomb County. I do not know how many of you are familiar with the state of Michigan and its internal politics. This was back in the early 1990s.

Macomb County is a suburb of Detroit. It is an extremely conservative county, and at that time Coleman Young was Mayor of the City of Detroit. He was not popular with anyone outside of the Detroit city limits. A particular judicial candidate named Chmura ran a series of ads and distributed a series of fliers that were, among other things, appeals to people's baser reactions. Coleman Young is African-American, and the picture on the front of the flier was a caricature, to put it kindly, that blamed Young for a variety of sins and implied that in some way, shape, or form, if Chmura were elected to the Court he could do something about it.

Chmura was disciplined by the state disciplinary body, and he went to the Michigan Supreme Court and sued saying that the disciplinary action violated his First Amendment⁴ rights. The court agreed. At the time this seemed to be a blip on the radar screen. I remember reading about it when the decision came down, and there did not really seem to be any fallout.

Then we get to the late 1990s, and we have Gregory Wersal in Minnesota, and he laid the foundation for Republican Party of Minnesota v. White. Just quickly for those of you who do not really know the background of the case, Greg Wersal had run for state supreme court several times. He had lost several times. He wanted to be able to campaign the way politicians campaign for legislative and executive branch races. The state supreme court races were non-partisan. They were not supposed to solicit endorsements, accept endorsements, run on partisan tickets, solicit for personal campaign contributions themselves, nor engage in other political activity. They were supposed to abide by the canons of judicial conduct that governedjudicial candidates' speech.

At the time, we had in Minnesota what has become known as the "AnnounceClause." In 1972 the American Bar Association created the Model Code of Judicial Conduct. The Model Code provided that judicial candidates shall not "announce their views on disputed legal or political issues." The thinking was that if they discussed their personal political views, for example, whether they were for or against abortion, whether they were for or against the death penalty, whether they were for or against tort reform, etc., they ran the risk of coloring their decisions, but more likely they ran the risk of coloring how the public perceived those decisions.

It is a little hard to believe that you have received a fair trial when the judge presiding over your case has taken a very public stand that actually supports your opponent's position, has done so in advance, and has, indeed, campaigned on that stand. So we had states all over the country adopting this version of the Model Code.

By 1990 it was clear that the language was overly broad, and it had been changed to what we call either the "Pledges or Promises Clause" or the "Commit Clause." In other words, that narrowed it to say that judicial candidates should not in some way commit themselves to taking certain courses of action as judges, or should not pledge or promise to engage in certain courses of action, or achieve certain ends other than the faithful performance of their duties on the bench.

That had always seemed very reasonable to most of us. And, in fact, virtually all of the states had some form of that code in their own local codes of conduct. However, a few states, nine I believe, still retained the old "AnnounceClause"language, and Minnesota was one of those states. Minnesota was not construing the language broadly. They were construing it as though it read pledges or promises or commit, but, nonetheless, the language actually still said that judicial candidates shall not announce their views.

Wersal sued and it went to the Minnesota Supreme Court and then eventually went to federal court. In 2002 it was heard by the United States Supreme Court. With White we had one of the most confusing and appalling Supreme Court decisions that I think I have ever read. Of course, I probably think that because this is something that is close to my heart and something that I do professionally all the time...