Session Three: Improving the Election of Judges, Part Ii - Michael Sweeney, William Weisenberg, Seth S. Anderson, and Seth D. Kirschenbaum, Moderator

• Jurisdiction: United States,Federal
• Publication year: 2005
• Citation: Vol. 56 No. 3

Symposium:

Judicial Professionalism in a New Era of Judicial Selection

October 22,2004

Session Three: Improving the Election of Judges, Part II

MR. KIRSCHENBAUM: Welcome to the afternoon session of the Symposium. I am Seth Kirschenbaum. I am an attorney in Atlanta, and I want to introduce my distinguished panel.

Furthest away from me is Bill Weisenberg. Bill is the Assistant Executive Director of the Ohio State Bar Association and serves as the liaison between the Bar and the Legislature and the Governor's office in Ohio. Bill served as Chief Counsel of the Ohio House of Representatives Judiciary Committee, and he received the Ohio Legal Assistance Foundation Presidential Award in 1997 for his efforts in recruiting access to justice for Ohio's poor.

In the middle is my namesake, Seth Andersen. Seth is the Project Manager of the American Bar Association's Standing Committee on Judicial Independence. That committee assists state and local bar associations in the implementation of ABA policies on state judicial selection and response to criticism of judges, and works collaboratively with other national, state, and local organizations to enhance the independence of the judiciary. Seth is really the man who knows everything that is going on everywhere in every state in the country on matters relating to judicial selection and retention.

Closest to me and to your right is Mike Sweeney. Mike is a former professor, now an adjunct professor, at Fordham Law School. He is legal counsel to the New York State Commission to promote public confidence in judicial elections. He was also a Founding Fellow of the Joseph R. Crowley Center for International Human Rights at Fordham Law School.

We are going to try to cover a few things in our panel discussion this afternoon, and we are hoping that the discussion is pretty lively. One of the first things we are going to do is stick with the White case a little bit more because we think there are a few other things to talk about relating to Republican Party of Minnesota u. White.' I want to start with Seth Andersen and ask you, Seth, what are the states doing in response to White and the media?

MR. ANDERSEN: Thank you, Seth, and thanks to Mercer Law School, especially Pat Longan, for hosting this event and to all of you for coming to listen and participate in this discussion.

Before I mention what is going on in the states, I would just mention briefly that the ABA Model Code of Judicial Conduct was revised as a result of the Republican Party of Minnesota u. White decision in 2003. The ABA put together a special working group to look specifically at Canon 5 on political activity, and some changes were made even though the existing ABA Code did not contain the announce clause that was struck down in the Minnesota case. There was a recognition that there was some language still in the Code that was a little too broad and it needed to be tightened up a bit.

The ABA also added a definition of judicial impartiality largely at the prompting of Justice Scalia's majority opinion in White that would clarify a little bit better what we are talking about. We are talking about impartiality of individual judges.

On top of that revision, the ABA is currently undertaking a complete revision of its Model Code of Judicial Conduct. A joint commission of judges and attorneys, and one non-lawyer member, have been working for over a year now and will continue to work for close to another year. It is a fairly large job to revise this Code. It has been made an even larger job with the recognition that the prior organization and presentation of the Code was not necessarily always the easiest thing forjudicial disciplinary counsel in the states to understand, adopt, and implement. There is a movement to make the Model Code of Judicial Conduct more rules-based and have it better reflect the approach taken in the Model Rules of Professional Conduct for lawyers.

The ABA Code is in flux. There will be a new Canon 5 released for public comment, and I would encourage anyone who is interested in reviewing that to check on the ABA's web site.' The new Canon 5 should be out within the next couple of months. We anticipate that the final Code will be presented for approval by the ABA House of Delegates next August in Chicago at the annual meeting.

All of the states, certainly all of the states that have judicial elections and had to respond to White because they had the announce clause, felt that they were required to take it off the books pretty quickly. Some states have actually left it in their Codes. They just have not gotten around to formally repealing their announce clauses.

There has been a wide range of responses in the states to the White decision, such as Missouri, which did have the announce clause and took it out very promptly. However, the supreme court issued an order stating that the pledges and promises clause and the commit clause were still in full force and effect, and in fact they had teeth, and if you violated them, you were going to feel the consequences. Nevada just recently adopted some changes to its Code to tighten up its language, but once again the commit clause and the pledges and promises clause remain.

Minnesota is a larger, more complicated story because they, as Barbara Reed mentioned this morning, are undergoing a rehearing. Minnesotaj ust had the oral argument two days ago on a couple of issues that were still standing in the White case in the Eighth Circuit Court of Appeals. But separately, the Minnesota Supreme Court last year established a special task force to examine its Code of Judicial Conduct in light of the decision in White and other developments. That special task force came back with a set of recommendations, all of which were adopted except for one. The recommendation not adopted was that Minnesota should give up trying to have non-partisan judicial elections by eliminating the political activity provisions that prohibit judicial candidates or judges from running as a member of a party, attending party functions, and doing the kinds of things that you find judges have to do in partisan election states. The Minnesota Supreme Court rejected that recommendation, pending the outcome of the existing issues in the White case from the federal court of appeals. Minnesota has maintained its political activity provisions essentially as they were before the decision in White under the argument that the compelling state interest in maintaining an independent judiciary free from the direct influences of partisan politics justifies a sufficiently narrowly tailored political activity provision to keep judges out of partisan politics.

At the other end of the spectrum, North Carolina adopted a number of changes to its Code, I believe in 2003, which I think could charitably be said were a very broad reading of the decision in White. The former prohibition on personal solicitation of funds, the one that is very similar to the one that used to exist in Georgia, was removed from North Carolina's Code. Paradoxically, a number of the political activity prohibitions or portions of its Code were also removed even though the North Carolina Supreme Court and court of appeals are now officially by statute elected in non-partisan judicial elections. That was part of the public financing law that was adopted and signed a couple of years ago. North Carolina has a Code that says you can be political, but you also have a law that says you are going to be in non-partisan elections.

North Carolina has made great strides, and the implementation of public financing there is really an amazing thing. North Carolina is serving as a model for many states around the country that are interested in these reforms, but there are also many internal tensions in North Carolina right now.

Many other states are waiting to see how a number of federal court decisions may play out. Many states are also waiting to see how the new and revised ABA Model Code resolves many of these questions before they do complete revisions of their Codes.

MR. KIRSCHENBAUM: Bill, how has Ohio responded to White?

MR. WEISENBERG: In Ohio the announce clause had been repealed by the Ohio Supreme Court several years ago, so the decision in White in Ohio for all intents and purposes really has not meant a great deal.

The problem, and I say this very candidly, is not the candidates. The candidates do not have to speak because there are the independent campaign committees that came about several years ago that are doing the talking. They are the ones doing the advertising. They are the messengers. Now, the question is, are the candidates involved with the committee? Probably not directly, but they know what is happening.

The independent campaign committees are the ones who run ads. Perhaps some of you have seen them in other forums where they telegraph the message about how a certain candidate understands the importance of an issue, or understands the importance of doctors that may be leaving the state, or understands that frivolous lawsuits are driving up the costs of business in Ohio, or that a certain candidate is better for our side rather than their side. These are the ads they ran in 2002.

So the JtfzLte case really is not a serious problem. The question that remains, in my opinion, is whether the candidates are about to commit themselves or make a pledge or promise with regard to a particular issue that may be pending before the court or about to come before the court. As we know, judges and judicial candidates are not supposed to do that. My experience is that the judges in Ohio are rather circumspect in addressing these issues because, quite frankly, they do not want to step over the line.

Now, we do have some candidates saying some things this year they did not say previously. For instance, a candidate stated that money and politics do not mix. This candidate compared the sale of seats on the New York Stock Exchange with buying a seat on...