The $$ Behind The Defeat Of Democratic Judicial Elections In Kansas
February 2, 2009
Surprise! Judges in Johnson County, KS and the lawyers expecting to have business before them in court wrote most of the checks to defeat a ballot initiative that would have restored democratic judicial elections and ended the practice of having judges selected by a committee controlled by lawyers. The news comes to us thanks to some terrific investigative work by two Kansas blogs – Kansas Meadowlark and Kansas Liberty. (Hat tip to dirtdiver.com for alerting me to these posts.)
Proponents of “merit” selection outspent supporters of democratic elections by more than 3:1 to defeat Question No. 1 on the November ballot. A review of the campaign financial records by E.F. Glynn reveals some interesting facts:
- “All 25 JoCo [Johnson County] District Court Judges and Magistrates, including several senior judges, contributed to keep their jobs unchanged. Instead of ‘recusing’ themselves … these Judges gave a total of about $32,600” to defeat democratic elections.
- “Missouri law firms and other out-of-state interests gave more than $87,300” to keep the current system.
- “Kansas law firms and other in-state contributors (excluding the judges) only gave about $55,000 to keep the current system.”
“Why do we see such a large Missouri influence on Johnson County and Kansas” courts, Glynn asks? Good question. Read more
A Must Read Article And A Challenge To Justice At Stake
January 26, 2009
University of Kansas School of Law Professor Stephen J. Ware had an important piece in Friday’s Wichita Eagle that devastatingly exposes the insider game of judicial appointments to that state’s Supreme Court and shreds the argument that “merit” selection delivers non-political judicial appointments. The entire op-ed is must reading, but here are some highlights:
Gov. Kathleen Sebelius recently appointed Dan Biles to the Kansas Supreme Court, showing once more what an unusually secretive and clubby process our state uses to select its highest judges.
Biles is the law partner of the Kansas Democratic Party’s chairman, and the governor is, of course, a Democrat. Sebelius said that she and Biles have been friends for more than three decades, and he has made campaign contributions to her.
But the insider dealings don’t end there. Professor Ware goes on to report that Biles is a member in good standing of the Kansas Trial Lawyers Association and that Gov. Sebelius herself was once the state director of the group. Just as troubling, Professor Ware writes:
…is how little the people’s views matter….So if the governor and [state bar] want to push the state’s courts in a particular direction, there are no checks and balances in the judicial-selection process to stop them.
“Merit” selection proponents claim retention elections preserve public accountability, but Professor Ware rightly points out that these Potemkin elections are a sham:
In fact, a retention election is nearly always a rubber stamp, and no Kansas justice has ever lost one. [my emphasis]
Since Kansas’ judicial nominating commission meets behind closed doors, “there is no public record of who voted which way.”
This secrecy prevents journalists and other citizens from learning about crucial decisions in the selection of our highest judges. In this closed process, a small group of insiders (members of the Kansas bar) have an extremely high level of control.
The Kansas bar defends this with the claim that the bar keeps judicial selection from being “political.” But when the process results in the governor appointing one of her own friends and campaign contributors, you have to wonder what kind of politics goes on behind closed doors or at trial lawyers’ cocktail parties.
Politics are inevitable when it comes to picking judges. The question is whether the politics will remain largely confined to the bar or become more open to the public and its elected representatives.
Justice at Stake claims its goal is to get politics out of the judicial selection process. While I don’t expect him to agree with every point in this article, perhaps Bert Brandenburg, Justice at Stake’s executive director, will join me in agreeing that, at least in this case, Kansas’ “merit” selection system has failed to deliver on its promise of non-political judicial appointments and should be revised to reduce the role of a single special interest group – the state bar. How about it Bert?
Trial Lawyer Lobby Scores Several Big Victories — But Signs Of Hope In A Tough Election Year
November 5, 2008
Democratic state Supreme Court candidates – backed by the money and influence of the powerful trial lawyer lobby – scored several victories last night that could result in the rollback of important legal reform legislation and lead to a more lawsuit-friendly, anti-business environment. The trial bar also strengthened its grip on the judicial selection process in Kansas and Missouri. Yet rule-of-law judicial candidate also won races in many key states, providing signs of hope in an otherwise tough election cycle.
A 2008 election roundup:
Michigan: A “scathing” ad campaign financed by the Michigan Democratic Party along with Senator Obama’s landslide in the state helped Diane Hathaway upset Supreme Court Chief Justice Clifford Taylor. Ms. Hathaway’s victory will weaken the current rule-of-law majority on the court and worsen the business climate in Michigan’s already devastated economy.
Mississippi: Rule-of-law candidates captured three of the four Mississippi Supreme Court seats up for grabs. Although Chief Justice Jim Smith was upset by challenger Jim Kitchens, business-backed challengers Bubba Pierce and David Chandler defeated incumbents Oliver Dias, Jr. and Chuck Easley. Meanwhile, rule-of-law Justice Ann Hannaford Lamar beat back her challenger to retain her seat on Mississippi’s high court. The result should be a fairer, more predictable legal environment, which Gov. Haley Barbour believes is critical to attracting investment and jobs to Mississippi.
Louisiana: Greg Guidry won a pivotal seat on the state Supreme Court – a victory that is expected to help a rule-of-law majority take control of the high court.
Alabama: Republican Greg Shaw squeaked to victory over Democrat Deborah Bell Paseur in the race to fill the seat of retiring Republican Harold See. The Alabama Supreme Court will retain an 8-1 Republican majority.
“Merit” Selection: Residents of Johnson County, KS voted down a ballot initiative that would have restored the right to vote for county judges and ended the current “merit” selection process. In Greene County, MO, voters narrowly (by about 4,000 votes) approved an initiative to adopt “merit” selection, which has been used by all three Courts of Appeal and the Supreme Court in Missouri since 1945.
Wisconsin: Back in April, Wisconsin voters ousted Supreme Court Justice Louis Butler – who was appointed by a Democratic governor only after decisively losing his own bid for election and who promptly shifted the high court sharply toward the trial lawyer agenda.
All in all, the 2008 elections provide strong evidence that American voters support judicial candidates that will exercise judicial restraint by interpreting the law, rather than legislating from the bench. But as we saw in Michigan, the trial bar and supporters of an activist judiciary are both financially and philosophically committed to fighting this battle out state by state, race by race. The trial bar and its allies are not afraid to wage tough, nasty, expensive campaigns to shift the courts in their ideological direction. If the legal reform community wants to hold onto the gains we’ve made and even extend them, we must have that same level of commitment.
“They Don’t Think We’re Smart Enough To Elect Our Judges”
October 29, 2008
Another Kansas City Star article updates the campaign over the ballot initiative in bellwether Johnson County to scrap “merit” selection and restore democratic judicial elections. As it stands today, a 14-member commission dominated by lawyers screens applicants and sends a list of three hand-picked nominees to the governor, who is required by law to select one of the commission’s choices. While initial meetings with judicial candidates are open to the public, voters have no opportunity to question nominees or offer any input into the process.
Election opponents believe keeping judges at arm’s length from the people they serve is a good idea. Voters can learn everything they need to know “about judges’ qualifications and work on the bench through evaluations released by the Kansas Commission on Judicial Performance.” So one committee controlled by a special interest group (lawyers) gets to pick judges and another committee controlled by the same special interest group (lawyers) gets to tell voters what to think about judges.
“Merit” selection supporters say this system installs judges with “merit” on the bench – but what they really mean is that only certain people (like lawyers) have enough “merit” to make the decision over who controls one-third of our government. Charlene Bredemeier, a supporter of judicial elections, sums up this attitude pretty accurately:
“They [merit selection proponents] don’t think we’re smart enough to elect our judges.”
More From Kansas
October 21, 2008
As Election Day approaches in Kansas, legal elites are lining up in opposition to a ballot initiative that would restore democratic judicial elections in bellwether Johnson County. In today’s Kansas City Star, president of the Kansas City Metropolitan Bar Association Gregory Bentz urges voters to maintain the current “merit” selection system – where a committee of 14, including seven lawyers, meets to review candidates and develop a list of three nominees from whom the governor must choose.
As you’d expect, Mr. Bentz makes his case forcefully, and there is much to agree with in his analysis. Mr. Bentz wants judges who “decide individual cases based on the facts and the law, not which political party is currently in power,” and who in their right mind could disagree? Everyone wants (or should want) judges to be fair and nonpartisan in their application of the law. Yet Mr. Bentz offers no evidence why ordinary voters are not qualified to make the decision which judge is best able to meet that standard.
He leads off by grimly warning that if democratic judicial elections are restored, judges will no longer be chosen “based on merit, qualifications and experience.” Exactly what standard does he believe his fellow Kansas citizens will use if the power to select judges is restored to them? If we can trust voters to pick legislators to make the law and governors to enforce the law, there’s no good reason why we can’t trust them to select judges to interpret the law.
Mr. Bentz flatly states Johnson County judges will not longer be able to be impartial if they have to “seek endorsements from special interest groups just to get elected.” Yet under “merit” selection, prospective judges must win the endorsement of a 14-member commission that is controlled by a single profession – or, to put it another way, by one special interest group: lawyers. Does anyone really believe that the opinions of the seven lawyers who by law must dominate the commission don’t carry more influence than the opinion of the one doctor, or the one business executive, or the one plumber?
In America, it is an article of our democratic faith that no profession has a monopoly of wisdom over who is qualified to serve in public office. For public positions that require specialized training – like the judiciary – voters typically pay attention to the opinions of those citizens who share the same expertise, which is why the endorsements of various bar associations often carry great weight in judicial elections. But the minute we carve out a special privilege for one profession in deciding who will occupy public offices, we’ve made those public officials servants of that profession, not the people.
Under “merit” selection, judges are accountable to the lawyer-dominated commission that put them in power, which is just another way of saying they are accountable to themselves, which is another way of saying they’re accountable to no one. Retention elections, which Mr. Bentz promotes as a way for voters to “express their outrage” over a bad judge, hardly provide the level of accountability voters desire. In Tennessee, for example, since “merit” selection was adopted, 145 out of 146 judges have been retained by voters – a margin of success that would make Hugo Chavez envious.
At the end of the day, we all want the type of judges Mr. Bentz wants: professional, fair, impartial, nonpartisan. I believe the people of Johnson County are just as capable – or even more capable – of discerning which judges have those qualifications as a committee controlled by lawyers. On November 4th we’ll find out if they believe it too.
Pushing Democracy In Kansas
October 16, 2008
Earlier this week, the Kansas City Star provides an update on a November ballot initiative in bellwether Johnson County. The initiative would replace the secret selection of judges – aka “merit” selection – with democratic elections. Opponents of democratic judicial elections like Malia Reddick of the American Judicature Society fear that Johnson County’s vote:
… could have a ripple effect. It could be used as evidence that voters are unhappy with merit selection around the country.
The article points out that merit selection systems are typically dominated by lawyers and leave no room for public input. In Johnson County, the vote of the judicial selection committee is held in secret. The means all the politics that goes into picking judges just gets moved behind closed doors, rather than out in the open as with democratic elections.
Update on Kansas
October 1, 2008
The Shawnee (KS) Dispatch has a good update on a November ballot initiative in Johnson County that would end “merit” selection of judges and put the power back in the hands of voters through democratic elections. The article features a lively and generally balanced back-and-forth between election supporter Tim Golba of the Kansas Judicial Review of Johnson County and “merit” supporter Greg Musil of Johnson Countians for Justice.
Mr. Golba says the current system gives lawyers the upper hand in deciding who sits on the court, while Mr. Musil argues that “merit” selection has worked so well over the past 34 years that not a single Johnson County judge has ever been voted out in a retention election. Mr. Musil also draws what I believe is a mistaken analogy between the “merit” system in Johnson County – where a 14-member panel dominated by lawyers decides who will sit on the bench – and the federal system, where the President’s choice is confirmed by the Senate. If federal judges were selected the same way as they are in Johnson County, the President would be forced to choose from a list of nominees put together by the heads of the American Bar Association, the American Trial Lawyers Association and other legal special interests.
Mr. Musil compounds this mistake, in my opinion, by suggesting that our Founding Fathers would have supporter “merit” selection in order to keep the judiciary independent. But the Founders recognized the need to balance the virtue of independence with the need to make sure judges are still accountable to the people, even if that accountability is indirect. As James Madison wrote in Federalist 39, America’s democratic government would be:
“ … a government which derives all its powers directly or indirectly from the great body of the people … It is essential (Madison’s emphasis) to such a government, that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it … It is sufficient (Madison’s emphasis) for such a government, that the persons administering it be appointed, either directly or indirectly, by the people … Even judges [under the Constitution] with all other officers of the Union, will, as in the several States, be the choice, though a remote choice, of the people themselves.”
James Madison clearly intended for all our public servants, including judges, to be chosen by “the great body of the people” and not by “an inconsiderable proportion, or a favored class of it.” Could there be a better description of “merit” selection than an “inconsiderable portion” (i.e. 14 people) led by “a favored class (i.e. lawyers) making the judicial selection decisions rather than “the great body of the people” (i.e. voters)?
JudgesOnMerit.Org Makes The Case For Judicial Elections
September 2, 2008
Yesterday’s Topeka, Kansas Capital-Journal has a farewell to retiring Shawnee County District Court Judge Matthew Dowd, who sings the praises of “merit” selection (although he himself was elected 31 years ago) based on the following argument:
With today’s high-dollar campaigns and TV and media pressure, there is more likelihood of getting a ringer, who is articulate and has a lot of funds but is not really the type of person who should be a judge.
Judge Dowd’s words extolling “merit” selection are standard boilerplate among those who want to revoke the right of Americans to vote for state judges, but our friends over at JudgesOnMerit were so impressed they led with his comments and thanked him profusely “for letting us know what a judge thinks about how we should be selecting judges.”
I hate to disrupt the swooning at JudgesOnMerit, but there just might be another reason why Judge Dowd didn’t want to face the people in an election – one that’s not quite so high-minded as the fear that politics is somehow polluting our courts.
In recent years, you see, Judge Dowd has become notorious as the Favorite Judge of Kansas Sex Offenders. “Shocking. Unacceptable. Disgusting.” That’s what a blistering editorial at the same Capital-Journal said a few months back after Judge Dowd awarded probation to a man who pleaded guilty to having sex with a 6- and a 7-year-old child, rather than life in prison as called for under Kansas sentencing guidelines.
As I wrote in a July post, according to the Capital-Journal, letting vicious, vile sex offenders walk free has become routine for Judge Dowd. Read more
Why Judges Must Be Accountable To The People
July 8, 2008
“In the past, we’ve voiced reluctance about the prospect of adopting judicial elections…” says a blistering editorial in the Topeka, Kansas Capital-Journal, but “perhaps the time has come to discuss judicial elections.”
Perhaps?
The Capital-Journal’s volte-face was inspired by a decision recently handed down by Shawnee County District Judge Matthew Dowd, who sentenced a man who pleaded guilty to having sex with a 6- and a 7-year-old child to three years probation. Under Kansas sentencing guidelines, he should have spent the rest of his life in prison.
According to the Capital-Journal, letting vicious, vile sex offenders walk free is routine practice for Judge Dowd. Last month, he reduced the sentence of a man who savagely raped a 5-year-old child. Last year, Judge Dowd gave three years probation to a man “convicted by a jury of 17 felony counts of raping and sodomizing a 14-year-old girl,” rather than the 13 years allowed under Kansas sentencing guidelines. And instead of the 12-year prison term due a man convicted for soliciting sex over the Internet with who he thought was a 13-year-old girl, Judge Dowd granted probation.
Perhaps?
The Capital-Journal rightly called Judge Dowd’s latest outrage “an apparent act of defiance from a judge who has all too frequently thumbed his nose at the community…” Sentencing guidelines, after all, are not just arbitrary numbers; they are meant to reflect the collective will of the people regarding the seriousness of a crime and the punishment required for justice to be done.
Judge Dowd’s actions represent an all too familiar practice on many of today’s courts: judges who substitute their own personal ideologies for the rule of the law. The authors of many state constitutions created a check for this type of judicial abuse by making judges accountable to the people through contested democratic elections.
Jeffrey Alderman of the Kansas Bar Association lamely counters that Judge Dowd actually was elected – back in 1976. But, as he knows, Shawnee County dumped democratic elections a year later – with the full support of the Kansas Bar Association – and replaced them with a system where judges are selected in secret. The system of secret selection supported by the Kansas Bar Association insulates judges like Matthew Dowd from the people they serve and ensures that they can remain on the bench as long as they desire. If Judge Dowd was forced to stand for re-election against an actual opponent, is there any doubt that the people of Shawnee County would know what to do?
The Capital-Journal labeled Judge Dowd’s latest decision “shocking, unacceptable, disgusting.” They’re right – but it’s also Exhibit A in the case for restoring judicial accountability in Kansas through democratic elections.
Kansas County Challenges Secret Selection
June 26, 2008
Citizens of Johnson County, Kansas have successfully placed an initiative on the November ballot that would end the secret selection of judges (through a so-called “merit” system) and allow voters to decide who sits on the bench. Justice At Stake’s GavelGrab blog links to a story in the St. Charles County Business Record reporting that some of the grandees of the county’s legal establishment are defending their power to control the courts. In a recent press conference, one member of the county’s lawyer-dominated judicial selection commission protested that commissioners are only “focused on selecting the best person to be judge.”
But the problem isn’t with the good intentions of individual commission members; it’s with a system that gives too much power to a small handful of unelected, unaccountable commissioners who meet in secret to pick judges. Democratic election of judges is the best way to disperse that power to where it belongs – with the people.