Communiqué - October 2006

Selecting Judges: Making Informed Choices
There's a Crocodile in Nevada's Judicial Bathtub

Also featured in the latest edition:

Nevada Commission on Judicial Selection
Judicial Election Preview: Contested Candidate Questionnaires
Trial By Peers Swearing-in Ceremony and Awards Presentation

Regular features in the printed edition include:

A Message From the President
Bar Business
From the Chief Judge
Tips and Comments from the Court Clerk
A Pro Bono Challenge
Humor with "Ask Mr. Lawyer"
Restaurant Reviews
Court Information, News & Notes, Member Watch and CLE Info

Selecting Judges: Making Informed Choices

By Tami Cowden

As a newcomer to the practice of law in Nevada, I encountered a few differences from what I'd experienced as a lawyer in Colorado. For me, the greatest difference is the manner of judicial selection. Of course, since Nevada is not unique in electing judges, the fact that I found the notion completely foreign was merely an indication of my own provincialism. Nevertheless, the first time I received a mailing with a request from a judge for a campaign contribution, seventeen years of conditioning led to my visceral reaction: such requests are not appropriate. My surprise in that regard is also somewhat more justifiable; Nevada is one of only two states that permit direct requests for campaign contributions.

Nearly two years after receipt of my first request, my personal reaction to judicial campaign literature hasn't changed much. I confess, however, that I am not entirely ungrateful that the powers that be in my firm ignore any personal reactions they might experience, and pragmatically write checks. But a system of electing judges has consequences beyond the annoyance of receiving begging letters, and the nagging concerns over a failure to give. Any lawyer who is faced with a legal question must give due consideration to the existing law: relevant statutes or other enacted law and judicial interpretation of that or similar law. In other words, we must attempt to predict legal rulings based upon legal concepts.

Attorneys who practice in jurisdictions where judges rely upon popular support to retain their positions, however, have additional elements to consider: is the outcome my client desires politically popular? If not, is the judge assigned to this case brave enough to make an unpopular decision if justice so requires?

Perhaps I am unduly antagonistic to change, but having to consider those latter issues, frankly, sticks in my craw. Accordingly, I welcome the current discussion afoot to introduce a merit selection process to Nevada.

Judicial selection systems compared

The arguments in favor of the election of judges are well known. Judicial elections avoid problems associated with cronyism. Courts packed with like-minded individuals who rule in lock-step do not contribute to the expansion of legal understanding. There are many fine, well-qualified judges who sit on Nevada courts who might not have had the "juice" to be appointed. Judicial elections also offer public accountability for judicial decisions, preventing judicial tyrants from imposing their personal political or social visions upon an unwilling populace.

Conversely, merit selection avoids the concerns associated with campaign contributions. The legal system has long noted that even the appearance of impropriety can taint the public views of judicial decisions. Just as the source of political campaigns can haunt politicians, contributions to judges can raise suspicions, regardless of whether such suspicion is actually fair or warranted. Moreover, without the need to gain votes, judges can devote themselves to their position. The campaign process itself dissuades many qualified individuals from seeking judicial office. Merit selection also avoids majority oppression of just but unpopular decisions. Finally, it offers an opportunity to examine the qualifications of the candidates that the elective process cannot.

The elective process cannot easily be amended to address the issues that argue against it. Even if direct contribution requests were prohibited, as urged by Washoe County District Judge Brent Adams, reality dictates that judges who must campaign to achieve their position will require funding, as well as time, to do so. Similarly, when a judge must be a politician, it is illogical to expect that judge to ignore popular sentiment in favor of the rule of law. Finally, while the campaign process does allow some examination of qualifications, the level of scrutiny afforded to decision makers in an application process cannot be matched by an election.

Merit selection, however, can be set up to address some of the concerns posed by those who favor elections. The elitism associated with an appointive process can be avoided by careful setup of the nominating process. Public accountability can be attained with thorough, publicly funded evaluations and retention elections. That is the type of judicial selection system that exists in Colorado and that I had so naively assumed existed everywhere.

The Missouri Plan

Most discussions regarding merit selection plans refer to the Missouri Plan. Missouri, facing the perception of corrupt judicial elections in the early and mid 20th century, created a merit selection plan that became a model for merit selection plans adopted by thirty states, including Colorado. The major component of the plan is that rather than a governor making an appointment from his or her cronies or a list proposed by campaign supporters, or as an award for campaign contributions, the choice is limited to candidates chosen by a nominating commission.

In Missouri, a nominating committee selects three candidates from among applicants for a judicial opening. The governor then appoints one of those three candidates. The judge thus appointed serves for an initial term of one year before standing in a retention election. If retained, the judge then serves for a set term before facing another retention election. Since Missouri's adoption of its plan, two of their judges have not been retained by voters.

Under the terms of the state constitutional amendment which created the Missouri Plan, judges on the state's supreme and intermediate appellate courts, plus the circuit and associate circuit judges sitting in St. Louis and Jackson County, where Kansas City is located, are appointed. Voters in other circuits had the option to adopt the merit selection process. Merit selection was adopted only in Clay, Platte and St. Louis County circuits.

There are separate nominating commissions for the appellate and circuit courts. The Appellate Commission has seven members, one of whom is a currently serving supreme court justice chosen by the members of that court. The remaining six members include two residents of each of the state's appellate districts. Each district must be represented by one nonlawyer, appointed by the governor and one attorney appointed by the state bar members in that district. Each circuit which uses merit selection has a five member commission consisting of the chief judge of the court of appeals district in which the circuit is located, plus two lawyers appointed by state bar members of that circuit and two nonlawyers appointed by the governor. A recent example of an application for an appellate opening can be found at http://www.courts.mo.gov/SUP/index.nsf/.

Nevada's merit selection process

Nevada does, in fact, have a merit selection plan in place. It is used to fill vacancies when an elected judge leaves the bench before the expiration of his or her term. Following the general precepts of the Missouri Plan, a commission on judicial selection selects three candidates from applicants for the position. The governor must then choose from those candidates. The judge so selected serves until the next general election; the judge elected in that election serves until the expiration of the time remaining in the replaced judge's term. NRS 3.080.

Chief Justice Rose's article on p. 16 describes the thorough application process used to select temporary judges in Nevada. The information required to enable the commission to choose suitable candidates for a temporary appointment makes the lack of required disclosure of information regarding an elected judge all the more surprising. Even though an elected judge will serve a longer period of time, there is no specific process set up to determine the candidate's qualifications, although financial disclosures are required. NRS 281.561.

Proposals for changes to a merit selection for more than just temporary replacements have been discussed in the press. These proposals represent variations on the Missouri Plan. For example, one proposal suggests using the merit selection process, followed by an open election after the appointed candidate has served two years. Another proposal would require the appointed judge to receive at least 60 percent of the vote in the initial retention election. These suggestions clearly indicate a desire to retain the public accountability offered by the election process. But these variations will also retain some of the evils associated with that election process.

Colorado, however, has come up with a solution that offers all the advantages of the merit selection process, and also avoids cronyism and a lack of accountability.

The Colorado version of the Missouri Plan

This year, Colorado celebrates forty years of its use of a merit selection system for filling judicial vacancies. At its heart, Colorado's method of judicial selections is quite similar to the Missouri plan. All appellate and district court judges are appointed by the governor from a slate of three candidates chosen by nominating commissions. There are separate commissions for the appellate and district court levels, and the district commissions are composed of residents of the judicial district.

Colorado has taken special care with regard to the make-up of its nominating commissions. Their commissions not only require an even mix of lawyer and non-lawyer, but also required a mix of political party: no more than half plus one of the members of any nominating commission may belong to the same political party. The governor appoints the nonlawyer members, while the lawyer members are appointed by agreement among the governor, attorney general and the chief justice of the Colorado Supreme Court. No member of the nominating commissions may hold any elective public or political office, nor may they apply for judicial office while serving on the commission.

Any candidate interested in a judicial appointment fills out an application similar to that used by Nevada. The obvious questions about education, work experience, publications, and the like are included. Questions that might surprise applicants are questions about leisure activities, computer technology skills, and awareness of financial disclosure requirements for judges. Those interested in an appellate level vacancy must provide a writing sample. To view the application, visit http://www.courts.state.co.us/exec/media/vacancy/judap.doc.

However, Colorado's process doesn't stop with selection followed by retention elections, in which a public, with little information, must decide yea or nay. Colorado takes a proactive approach ensure the voters have relevant information available when deciding whether to retain a sitting judge. Thus, perhaps the most important aspect of Colorado selection method is its Judicial Performance Evaluations.

In 1988, the Colorado General Assembly approved the creation of statewide and district judicial evaluation commissions. Every judge facing a retention election must be evaluated by the commission charged with evaluating members of that judge's court. These commissions, consisting of four lawyers and six nonlawyers, review responses to thousands of questionnaires filled out by a wide variety of persons. For district court judges, the questionnaires go to persons who have had contact with the judge: attorneys, litigants, jurors, crime victims, law enforcement personnel, social services caseworkers, probation officers, and court personnel. Surveys regarding appellate court judges are sent to attorneys, trial court judges, and court personnel. The surveys ask the respondents' opinions of the judge's courtesy to the public, judicial temperament, knowledge of the law, fairness and sense of justice and clarity of oral and written decisions. In addition to such review, the evaluation process also includes consideration of the judge's docketing statistics, a self-assessment performed by the judge and an interview with the judge.

Following this process, the committee issues a recommendation that the judge "be retained" or "not be retained." The commission may also state it has "no opinion." The recommendation will include the relevant biographical information regarding the judge, and the reasons, positive and negative, underlying the recommendation, including discussion of the survey results and, quite often, mention of the judge's self-assessment responses. The Commissions' recommendations are included in the Blue Book of Ballot Issues that each registered voter in Colorado receives prior to the election. (That Blue Book, by the way, is another practice of Colorado's well worth emulation). The records of those evaluations going back to 1998 can be found at http://www.cojudicialperformance.com/main.cfm?webdiv=523&top=182.

Armed with such information, Colorado voters have chosen not to retain six judges. The voters have at times disagreed with the commission's recommendations, including recommendations "not to retain," demonstrating that the electorate does not rubberstamp the commission's decisions.

Choices for Nevada

Many are no doubt content with Nevada's current system; others seek the switch. My position is rather clear. Since a change can occur only with constitutional amendment, ultimately the voters will decide the future of judicial selection in Nevada. As proposals and counterproposals are put forth, it is my personal hope that changes presented to the voter will lead to the same opportunity for education on the qualifications of the candidate as are currently available to the people of Colorado.

Tami Cowden is Of Counsel in Kummer Kaempfer Bonner Renshaw & Ferrario's appellate and litigation practice groups. Despite her dislike of having to consider the political aspects of a case, she freely admits that practicing law in Nevada is much more fun than doing so in Colorado. Contact Tami at This e-mail address is being protected from spam bots, you need JavaScript enabled to view it .

There's a Crocodile in Nevada's Judicial Bathtub

By Vince Consul

Recent articles in the Las Vegas Review-Journal from July 25, 2006 and August 15, 2006 addressed a proposed ban on judges personally asking for campaign contributions. Judge Brent Adams of the Second Judicial District Court was quoted as saying "getting judges out of the money business is long overdue."

While Judge Adams' efforts are well-intentioned, recent federal cases suggest that the problem is not with the fund-raising process, but, rather, with a state's decision (such as Nevada's) to provide for the popular election of judges in the first place. As Justice Sandra Day O'Connor noted in her concurrence in Republican Party of Minnesota v. White, 536 U.S. 765, 122 S.Ct. 2528 (2002), the very practice of electing judges undermines an interest in an actual and impartial judiciary.

The White case did not address the issue of campaign contributions.

Many of you, like me, probably assumed that Minnesota v. White decided the issue of judicial campaign contributions. After all, the United States Supreme Court in Minnesota v. White recognized the First Amendment rights of judicial candidates with regard to expressing their opinions on disputed legal and political matters. Unfortunately, the United States Supreme Court in Minnesota v. White was not asked to review the constitutionality of the "solicitation clause" included in Minnesota's judicial code of conduct which prohibited judges and judicial candidates from personally soliciting campaign contributions. Thus, when the U.S. Supreme Court remanded the Minnesota v. White case, it did so with specific instructions that it had not addressed the campaign solicitation issue and was not expressing any opinion or holding in that regard. Accordingly, we must look at subsequent proceedings in Minnesota v. White and its progeny to determine how to deal with a judicial candidate's right to solicit campaign contributions.

A "chill" in Minnesota.

Without going into detailed constitutional analysis (which I will leave for Dean Richard Morgan and the professors and students at UNLV Boyd Law School), upon remand, a three-judge panel of the Eighth Circuit Court of Appeals upheld the State of Minnesota's judicial conduct ban upon personal solicitation of campaign contributions by judges. A motion for rehearing was filed. A rehearing en banc was granted.

The Eighth Circuit, in a lengthy opinion, acknowledged that the due process clause of the 14th Amendment can be violated by subjecting a person's liberty or property to the judgment of a judge who has a direct, personal, substantial, pecuniary interest in reaching a conclusion against that person in a case. Republican Party of Minnesota v. White, 416 F.3d 738, 753 (8th Cir. 2005). The court recognized that the partiality of a judge as it relates to a party to a case violates due process protections. However, the Eighth Circuit analysis also involved a review of the protections of the First Amendment. Finding that a restriction against judicial candidate solicitation or fund-raising had a "chilling" affect upon fundamental First Amendment Rights, the Eighth Circuit applied a strict scrutiny test to evaluate the restrictions upon judicial fund-raising. Th e Eighth Circuit eventually accepted and adopted Justice Antonin Scalia's definition of impartiality as "open mindedness" from Minnesota v. White. The Eighth Circuit adopted the definition of open mindedness as follows,

This quality in a judge demands, not that he have no preconceptions on legal issues, but that he be willing to consider views that oppose his preconceptions, and remain open to persuasion, when the issues arise in a pending case. This sort of impartiality seeks to guarantee each litigant, not an equal chance to win the legal points in the case, but at least some chance of doing so. Id at 756.

The Eighth Circuit then held that the state's interest in impartiality was not a compelling state interest sufficient to satisfy the strict scrutiny test. Therefore, restrictions against personal solicitations by judicial candidates were held to be unconstitutional as violative of the First Amendment. The Eighth Circuit took guidance from Justice O'Connor's cogent comment. Unless the pool of judicial candidates is limited to those wealthy enough to independently fund their campaigns, a limitation unrelated to judicial skill, the cost of campaigning requires judicial candidates to engage in fundraising. Minnesota v. White, 536 U.S. 765 at 789-90, 122 S.Ct. 2528.

I am certainly not a constitutional scholar, but it sounds to me as if Justice O'Connor was applying some good old-fashioned cost-benefit analysis to the situation. In other words, if a state makes the choice to select its judges by contested popular elections in the first place, then the cost of that decision is that campaigning requires judicial candidates to engage in fund-raising.

To limit the ability to fund-raise would result in limiting the judicial candidate pool to those of wealthy means. The end result, limitation of the pool of judicial candidates to the wealthy, would be worse than the means, fund-raising by judges and judicial candidates.

The Eighth Circuit is not alone

The State of Georgia invoked restrictions similar to those in the State of Minnesota against the solicitation of campaign funds by judges and judicial candidates. Georgia also included a Canon of Judicial Ethics which provided that a judicial candidate can establish an election committee to do the solicitations for her. A judicial candidate challenged the restriction in the United States District Court in Atlanta. The district court upheld the restrictions of the judicial canon. The matter was appealed to the Eleventh Circuit Court of Appeals. That court, in Weaver v. Bonner, 309 F.3d 1312 (11th Cir. 2002), held that the judicial canon which prohibited judges or judicial candidates from personally soliciting campaign contributions violated the First Amendment. The Weaver court held that, in effect, candidates are completely chilled from speaking to potential contributors by the judicial canon. The Eleventh Circuit, like the Eighth Circuit, stated, It is the general practice of electing judges, not the specific practice of judicial campaigning, that gives rise to impartiality concerns because the practice of electing judges creates motivation for sitting judges and prospective judges in election years and non-election years to say and do things that will enhance their chances of being elected. Id. at 1320.

The Eleventh Circuit also noted in its opinion that a state's choice to popularly elect judges means that state has voluntarily taken on the risks to judicial impartiality which are well recognized. Those risks are: 1) motivation for judges to say and do things that will enhance their chances of being elected; 2) the appearance of partiality due to campaign contributions by attorneys and parties; and 3) seeking endorsements from prominent figures and groups.

Of particular note to Nevada is the Eleventh Circuit's discussion of the portion of the Georgia Judicial Canons which allowed a judicial candidate to establish a committee to seek the contributions and endorsements in place of the individual candidate themselves. The Eleventh Circuit, as part of their analysis, was not enamored with any so-called protections provided by limiting a judicial candidate's fundraising efforts to those conducted by a committee. The court did not believe that having this one insular step between a candidate and the fund-raising activities provided any protection. The court stated,

Furthermore, even if there is a risk that judges will be tempted to rule a particular way because of contributions or endorsements, this risk is not significantly reduced by allowing the candidates' agent to seek these contributions and endorsements on the candidates' behalf rather than the candidate seeking them themself. Successful candidates will feel beholden to the people who help them get elected regardless of who did the soliciting of support. Id. at 1321.

Thus, the committee approach to judicial fund-raising was also held to have a chilling effect upon a judicial candidates' First Amendment rights and was invalidated as violative of the First amendment.

The crocodile

The conclusion gained from reading the federal circuit court opinions in Minnesota v. White and Weaver v. Bonner is that if Nevada wants judicial popular elections, it must provide the constitutional trappings required for such procedures. Or as Justice O'Connor noted in her concurrence in Republican Party of Minnesota v. White, Minnesota cannot "ignore the crocodile" it has chosen to place in its bathtub. Republican Party of Minnesota v. White, 536 U.S. at 789, 122 S.Ct. at 2542. Similarly, Nevada, which has chosen to have its district court and supreme court judges popularly elected, must bear the costs of the "crocodile" of judicial campaigning if it chooses to continue with that process of selecting its trial and appellate court judges by popular contested elections.

A public opinion poll in Wisconsin found that more than three quarters of those surveyed believe that campaign contributions from lawyers and plaintiffs in high profile cases influenced the decisions of the judges and court. Republican Party of Minnesota v. White, 416 F.3d at 774. Likewise, a study in Texas found that 83 percent of the public and 79 percent of lawyers believe that campaign contributions have a significant influence on a judges decision. Id. Even more interestingly, a poll from Texas showed that 48 percent of state, appellate and trial judges surveyed believed that campaign contributions had a fairly significant or very significant degree of influence over their judicial decision making. Id.

The only way to remove the crocodile from the judicial bathtub is to change the process by which Nevada selects its judges.

Conclusion

The two federal circuit court cases which have addressed the issue lead me to conclude that if Nevada continues to decide to popularly elect its judges, then there is no provision by which the State can limit the fund-raising activities of those judges or judicial candidates. Second, limiting a judge's or judicial candidate's fund-raising activities through a campaign committee is also insufficient insulation against the perception of a lack of impartiality in the judicial system. Third, the First Amendment protects a judicial candidates' right to personally solicit campaign funds. So, if Nevada wants to place as much distance as possible between judges and the influence of money, then we must change the system by which we select our judges. If we choose instead to have our judges continue to bathe with the crocodile, then the crocodile will be continue to feed on campaign contributions directed to judges and judicial candidates.

Vince Consul is the Immediate Past President of the State Bar of Nevada. He has been a licensed Nevada attorney since 1981 and is a partner with the firm of Boies, Schiller & Flexner in Las Vegas, Nevada. He practices both civil and criminal litigation in the state and federal courts.