Ariz. Vice Chief Justice John Pelander

Ariz. Vice Chief Justice John Pelander

An event this Saturday, April 18, brings together legal leaders and others to assess the experiences of the most recent Arizona county to use the judicial merit-selection system.

Pinal County is the place, and the event will be held at the Holiday Inn in Casa Grande, Ariz.

The speakers will include retired Ariz. Chief Justice Ruth McGregor and State Bar President Richard Platt. Lunchtime remarks will be delivered by Vice Chief Justice John Pelander.

The event runs from 8:00 am to 3:30 pm, and it’s free. Breakfast and lunch will be served. But registration is required, which you can do here.

That page also includes the complete program and list of speakers.

It is sponsored by numerous groups, including the State Bar of ArizonaArizona Advocacy Network and Justice at Stake. The organizers clearly want the conversation to range beyond the county line; they indicate the day’s dialogue will include “Pinal County’s judicial system, AZ’s Merit Selection System and national cases impacting Fair and Impartial Courts.”

My understanding is that the Court and the State Bar have had a difficult time encouraging attorneys to forward their names to be considered for the judicial nominating commission in Pinal County. The system has been used in other counties for a long time, but it may be getting its sea legs in Pinal. Perhaps forums like this will spread the word about merit selection’s value.

In a video screen-shot, Justice Sandra Day O'Connor (center) describes a proposed judicial selection plan.

In a video screen-shot, Justice Sandra Day O’Connor (center) describes a proposed judicial selection plan.

The dialogue over how we select judges continues in earnest across the country, and retired Justice Sandra Day O’Connor continues to be in the thick of it.

As Justice O’Connor recently said, “The courts are the bulwark of our democracy, and we can ill afford to see them undermined.”

Last week, we read an announcement that a new proposed plan had been released, and it is named the O’Connor Judicial Selection Plan. (The complete plan is here.)

The new proposed plan was issued by the Advancement of the American Legal System.

The new proposed plan was issued by the Institute for the Advancement of the American Legal System.

The proposal comes out of the Institute for the Advancement of the American Legal System (IAALS). You can read more about the news here.

According to plan advocates, the plan “was the outgrowth of work by Justice O’Connor, IAALS and the Advisory Committee to its Quality Judges Initiative, chaired by former Arizona Chief Justice Ruth McGregor, who is a member of the Justice at Stake Board of Directors.”

As described by Justice at Stake, the plan includes:

“a judicial nominating commission to screen judicial applicants and identify the best qualified candidates, appointment by the governor of one of those candidates, broad-based and objective evaluation of judges’ performance on the bench, and periodic retention elections.”

(Yes, that is very much like the Arizona system, at least in three counties.)

Justice at Stake logoWould you like to see where your state stacks up in its judicial-selection method? The IAALS, at the University of Denver, breaks it down here.

In case you’re thinking the conversation is of interest merely to court wonks, read a new study by the Defense Research Institute, which calls itself “the voice of the defense bar.” Its report titled “Economics of Justice” details the facts behind its position that financial blows suffered by the judicial branch are inflicting “widespread economic harm in communities.”

A press release and link to the full report are here.

Finally, for a quick synopsis of the O’Connor Plan, watch this video with the Justice herself, along with retired Arizona Chief Justice Ruth McGregor and IAALS Executive Director Rebecca Love Kourlis.

 

Former Justice Ruth McGregor speaks at the 2013 State Bar of Arizona Convention -- and now in the Washington Post.

Former Justice Ruth McGregor speaks at the 2013 State Bar of Arizona Convention — and now in the Washington Post.

On Sunday, readers of the Washington Post were treated to an opinion piece co-authored by Arizona’s own Ruth McGregor, a retired Chief Justice of the Arizona Supreme Court.

Titled “Keep politics out of the courthouse,” the essay was co-written by Randall Shepard, a fellow retired justice of the Indiana Supreme Court.

The news hook for their salvo against improper political influence was a recent awful occurrence in Oklahoma. As they describe it:

“The chaos surrounding the execution of convicted murderer Clayton Lockett was not just a wake-up call on capital punishment and how it is administered. The final hours also saw political efforts to bully and weaken Oklahoma’s courts. Similar battles are playing out around the country, threatening the ability of our courts to be fair and impartial.”

“When Lockett’s attorneys filed a lawsuit seeking information about the drug mixture that ultimately failed, the Oklahoma Supreme Court issued a stay to grant more time for review. But the governor announced that she would disregard the court’s ruling. A legislator introduced a resolution to impeach the five justices who had voted for the stay, alleging ‘a willful neglect of duty and incompetence.’ The Supreme Court ultimately dissolved its stay and allowed Lockett’s execution to proceed.”

Did you get that? The governor looked at a court-issued stay and said, “Nope. Not gonna do it.

(You may recall reading that Lockett’s subsequent execution went terribly wrong.)

Justice at Stake logoWe cannot get into the Oklahoma justices’ heads. Perhaps they dissolved their own stay to avoid a continued head-to-head with the governor. Or perhaps they feared the impeachment resolution. But whatever their thinking, the ultimate decision did more harm to the independent judiciary than almost anything else, as it merely encouraged the further bullying of courts.

Justice McGregor and her co-author are board members of Justice at Stake, “a nonpartisan network working to keep courts fair and impartial.” You really should read their op-ed all the way to the end. Start here.

Reading the well-drafted opinion piece, I was reminded of an editor’s column I wrote back in 2009. In it, I commended to the consideration of the new U.S. President a jurist worthy of the United States Supreme Court. To my knowledge, President Obama never followed up and contacted Ruth McGregor (and he has not contacted me). But I thought you might enjoy what may be the one and only Arizona Attorney column that was also an open letter to the POTUS.

My SCOTUS recommendation opened Dear President Obama.” Keep reading here.

In the meantime, the retired justices suggest, if we needed more evidence of the real-life fallout that may come from the politicization of courts, an Oklahoma lethal injection provides it.

Below is an image of my 2009 column.

AzAt Editor's Letter May 2009 Ruth McGregor_opt

(click to biggify)

judicial elections report cover

Let me talk (for a few days) about judge elections and judicial merit selection.

Before you change the channel, I want to pass on some news that is, y’know, actually new. (Next week, I may write about what I call merit-selection fatigue, which afflicts anyone who has watched its fortunes wax and wane over a generation.)

The news is the release of a new report called “The New Politics of Judicial Elections.” It is a joint effort of the Brennan Center for Justice at the NYU School of Law, the National Institute on Money in State Politics and advocacy group Justice at Stake.

Brennan Center for Justice_logoThe 64-page report paints a pretty bleak picture of the current state of judge elections. In three chapters, the authors explore the money trail, record spending on TV ads, and the sour political climate that surrounds judicial elections.

You can read the complete report here. From the same page, you also can view the TV ads that they examine in the report. (Those videos are available as in video form and as storyboards.)

(Arizona, which has merit selection for appellate courts and the three largest counties, was mentioned in the study in regard to political fights over judicial selection. I wrote about one high-profile judicial retention election here.)

The fight over Arizona's judicial merit-selection model is described in the report "The New Politics of Judicial Elections 2011-12."

The fight over Arizona’s judicial merit-selection model is described in the report “The New Politics of Judicial Elections 2011-12.”

To mark the report’s launch, the groups held a media call last Friday morning. Here’s what they said on the call.

Bert Brandenberg, Executive Director of Justice at Stake, opened the dialogue by calling the politicization of judicial elections “one of the biggest democracy issues flying under the media radar screen.”

In recent years, “Millions of dollars raised by special interest groups were turning judges into fundraisers, raising fears that justice is for sale.”

In 2011-12, a record $56.4 million was spent in judicial elections, which Brandenberg calls “the new normal.” And that has become a trap for the judges, an arms race.

If we imagined that we could view matters transparently, Brandenberg reminded press on the call that 97 percent of all funds raised went to independent groups obliquely supporting or opposing candidates—not to candidates themselves. Those groups have no public reporting requirements.

“We depend on courts to be different from the other branches,” Brandenberg said. “But we ask judges to be Huey Long on the campaign trail, but then turn into Solomon on the bench.”

Justice at Stake logoAlso speaking on the call was Alicia Bannon, counsel at the Brennan Center. She opened by describing the “unprecedented spending” on judge election TV ads, coming in at more than $33 million in 2011-12.

As troubling as the dollar figures, she said, is the subject matter. More and more of the ads are becoming inflammatory—charging campaign opponents of protecting rapists or freeing terrorists. This “carnival atmosphere,” as she described it, is making judicial election ads almost indistinguishable from other political ads.

Bannon described reforms that the Brennan Center seeks: stronger disclosure laws to see who is trying to influence elections; stronger rules surrounding judge recusals; and public financing for judicial races.

At my request, Bannon kindly sent links for more about the Brennan Center’s work on “recusal reform.” Their 2011 report provides model rules for recusal standards. Their website also includes ABA testimony discussing their recommendations. As she said, “This work builds on a 2008 report which provides detailed analysis of the problem and our proposed solutions.”

The dialogue over how to sustain an independent but accountable judicial branch continues. Tomorrow, I’ll share some local news about merit selection. It arose at a recent terrific panel discussion (by coincidence, the same day as the media call), and when the unrelated topic of judicial elections arose, one panelist—a Texas judge—candidly offered his thoughts. And who doesn’t enjoy candid?

Justice at Stake logoHow do we know the weather is improving in Arizona? Our in-boxes are jammed with invitations to events—some even held outdoors!

Over the next few days, I’ll share a few event details to be sure you know as much as I do (what a low bar that is!).

Today, I mention three events, all occurring late this week. Get your curiosity and your business cards ready to attend:

  • Arizona Advocacy Network/Justice at Stake event. Thursday, Oct. 17, 5:30 pm. REGISTER HERE. Here is the detail:

“Arizona Advocacy Network is continuing our work to promote Fair Courts and Diversity on the Bench. We’re excited to invite you to our launch of a new, sustained project in collaboration with Justice at Stake, local, state and national organizations on October 17. Tim Hogan (Arizona Center for Law in the Public Interest), Liz Fujii (Justice at Stake) and Eric Lesh (Lambda Legal) will each speak briefly on court cases that impact our lives, equality and justice. Guests are encouraged to make this a discussion with our three panelists. We have lots of food and drink and the social is free. You just need to reserve your place with rooftop access at the Clarendon limited to 100 guests.

“Americans are engaged in an important and vigorous debate over the best way to stem gun violence, but the heated argument begs the question: What do the numbers show? Stanford Law School Professor John Donohue III, one of the world’s leading empirical legal researchers, will give a public lecture on the subject at The University of Arizona James E. Rogers College of Law.”

  • State Bar CLE: “The Arizona Justice Project: Volunteer Lawyers on the Long Hard Road to Justice.” Friday, Oct. 18, 9 a.m. Available live, Tucson simulcast or as a webcast. Here is the detail:

AZ justice-project logo“This session will showcase the work of the Arizona Justice Project, a non-profit organization dedicated to examining claims of innocence and manifest injustice, and providing legal representation for inmates believed to have been failed by the criminal justice system. The seminar will include a discussion of current advancements in forensic science as well as an overview of post-conviction relief procedures. A primary focus of the program will be to highlight the importance of and opportunities for pro bono service. Faculty will discuss actual cases involving the work of the Project to include the Drayton Witt, Bill Macumber and Louis Taylor cases.

Here’s hoping we get to meet at one or more of these events.

Mark Harrison

Mark Harrison

Last week we heard some great news about an Arizona lawyer from the national organization Justice at Stake.

Mark Harrison is a member at Osborn Maledon, as well as the board chairman of Justice at Stake. On February at the midyear meeting of the American Bar Association in Dallas, he was given the 2013 Burnham “Hod” Greeley Award.

As a press release indicates, he was honored “for making a significant, positive impact on public understanding of the role of the judiciary in a democratic society.”

Justice at Stake is committed to aiding the judiciary. It “promotes increased public awareness of the need for a fair and impartial judiciary.” As the organization describes itself:

“Justice at Stake is a nonpartisan, nonprofit campaign working to keep America’s courts fair and impartial. Justice at Stake and its 50-plus state and national partners educate the public, and work for reforms to keep politics and special interests out of the courtroom—so judges can protect our Constitution, our rights and the rule of law.”

Gavel Grab adds a mention that Harrison “has worked as president of Justice for All, a nonprofit group dedicated to preserving a strong and impartial judiciary in Arizona.”

But … am I missing something? Unmentioned in the accolades is the fact that Mark was once the President of the State Bar of Arizona. Sure, Justice at Stake writes that he “led the local Bar with distinction,” but who the heck is that “local bar,” anyway? It was the SBA.

Maybe the omission signals a reduced “wow” factor associated with being a state bar president. But that would surprise me. I know that folks at Mark Harrison’s level have a drawerful of accolades and high-level experience. But even given that, bar president on the state level usually merits a mention.

And why not mention it? Isn’t the mentioning the only real payoff for the work of leading a bar? Remember, the days of a bar president are littered with meetings regarding section revenues, and lunches with tiny civic organizations, and information-sharing trips to exciting venues like Dallas or Duluth or a legislative grilling chair. After all that work, why not drop the title occasionally?

In any case, congratulations to Mark Harrison. We at the local bar look forward to continuing to collaborate with him on important issues.

“Funding Justice: Strategies and Messages for Restoring Court Funding”This month, a useful document was released by two organizations committed to a strong and fully funded judiciary. We’ll see if it makes a conceptual difference in the contentious nationwide fight over court funding.

“Funding Justice: Strategies and Messages for Restoring Court Funding” was authored by Justice at Stake and the National Center for State Courts.

The report is refreshingly detailed and focused on strategies (placing that word in a report’s title is never a guarantee that the authors will provide any; these authors do). As the authors say, “The guide is entirely based on a nationwide opinion research project that included focus groups, a poll of American voters, and interviews with chief justices, legislators, and others closely involved in debates around court funding.” And at least a portion of the recommendations arose out of focus groups held in Phoenix in February 2012 (so you may have been a part of the research).

National Center for State Courts logoYou can read and download the entire report here.

I appreciated Gavel Grab’s summary and analysis of the report. Author Peter Hardin also includes links to news stories about the courts’ budget crisis.

Hardin also points us to another post worth a look (for detail and extreme candor): this blog post out of the Institute for the Advancement of the American Legal System. There, Bert Brandenburg (Executive Director of Justice at Stake) and Jesse Rutledge (Vice President for External Affairs at the National Center for State Courts) explain their thinking in how they crafted the report. Their exposition reveals an awareness of the value of political nuance.

Justice at Stake_logoAs Brandenburg and Rutledge explain:

“[The report] advises, for example: ‘Focus on harm to taxpayers and the economy—not damage to the courts.’ It underscores the idea that ‘It’s not about you. It’s about them.’

“[It] also warns against adopting a message that ‘[c]ourts are a ‘separate and co-equal’ branch of government and thus should be treated with greater respect in the budget process’ because it ‘falls on deaf ears with the public,’ the guide says. What’s more, ‘Americans overwhelmingly felt that the courts should not get special treatment, and the judiciary should be expected to tighten its belt—like everyone else.’”

I think the report reflects a deep understanding of the crisis and the persuasive challenge that court supporters face. Feel free to pass it on to anyone who would benefit from it. And let me know whether you think this tool is likely to make a bigger impact in the conversation than approaches from the past.