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Running for state judge has never been pricier. This year, campaign fundraising and television advertising in races for some of the nation’s top judicial seats have hit record levels. Much of that money has come from special-interest groups, which so far have spent nearly $1.8 million on television advertising for Supreme Court campaigns-a 69% increase from 2004, according to the Brennan Center for Justice at New York University School of Law and the Justice at Stake Campaign. In Alabama, where four contested Supreme Court races will be decided next month, contributions by numerous political action committees (PACs) have paid for TV ads pitting a church-going appellate judge against a Supreme Court chief justice espousing a pro-life stance. Three private-interest groups-one linked to the American Tort Reform Association-bankrolled vicious ad campaigns during primaries last month in the state of Washington, where a runoff continues for one Supreme Court seat. Overall fundraising is sky high in Kentucky, which has a record number of elections in nearly all of its judicial seats, including five of its seven Supreme Court positions. Oregon is also seeing aggressive campaign spending, where lawyers are closely watching a race for a Supreme Court post. Meanwhile, two ballot measures are drawing the ire of lawyers and judges: In Colorado, the U.S. Chamber of Commerce and several local attorney groups have opposed an initiative that would shorten term limits for appellate judges, while in South Dakota, local groups are fighting a grassroots measure that would criminalize judicial behavior. Private-interest groups bombarded judicial election campaigns after the U.S. Supreme Court found in 2002 that a Minnesota judicial canon prohibiting judicial candidates from announcing their legal or political views violated the First Amendment. Republican Party of Minnesota v. White, 536 U.S. 765 (2002). The White case has affected several of the 16 states with elections this year. “It’s a trend that really has swept across the country,” said Jesse Rutledge, communications director for the Justice at Stake Campaign, a self-professed non-partisan group in Washington that tracks judicial elections. “Big money campaigns dominated by interest groups and found in airwaves are the recent phenomenon for most state court elections.” Alabama: ground zero In Alabama, elections are to be held for five Supreme Court seats next month. Four are contested, including the chief justice position. Rutledge said Alabama attracts the most expensive campaigns because its judges are affiliated with political parties and have no fundraising limits. “Historically, it has been ground zero for campaign fundraising and negative TV ads in judicial campaigns,” he said. “The campaign for the chief justice seat looks to be fairly expensive and contentious.” Chief Justice Drayton Nabers, a Republican, faces Appellate Judge Sue Bell Cobb, a Democrat. As of Sept. 24, Nabers had raised almost $518,000 in contributions, including those from PACs such as the Alabama Civil Justice Reform Committee, according to the Alabama Secretary of State’s Office. For that same period, Cobb raised more than $554,000 in contributions, including those from the State Democratic Executive Committee of Alabama. Cobb unleashed two TV ads late last month focused on her professional background, motherhood and her playing the piano at church. In the primaries, Nabers had several ads of his own, some of which were funded by a PAC called the American Taxpayers Alliance, which has been linked to the pro-business U.S. Chamber of Commerce. A spokesman for the U.S. chamber declined to comment. In one ad, Nabers is depicted as a thrifty candidate with “conservative Alabama values.” In his own ad, Nabers states he is pro-life and for “traditional marriage.” Boyd Kelly, a lobbyist with the Alabama Forestry Association, whose PAC contributed to Nabers, said the key question businesses want to know is, “Will you interpret the law as opposed to making it? We’ll take our chances if the answers are ‘yes.’” In Washington state, the Sept. 19 primaries featured candidates in three campaigns, the most contentious being that between Supreme Court Chief Justice Gerry Alexander and challenger John Groen for the top judicial post. Two days before the primary election, three interest groups had spent close to $792,000 on TV ads, second only to Alabama as the costliest on-air battle in judicial elections this year, according to the Brennan Center and the Justice at Stake Campaign. “Those three interest groups collectively and almost single-handedly changed the tenor and the nature of that campaign dramatically, and without the control of the candidates themselves,” said James Sample, associate counsel of the Brennan Center. One of the groups, the Building Industry Association of Washington, paid for ads denouncing Alexander’s restrictions on property rights. Another organization, Americans Tired of Lawsuit Abuse, a local PAC, which is supported by the American Tort Reform Association, paid for an ad criticizing Alexander for a vote that released a murderer from prison. A third group, Citizens to Uphold the Constitution, funded an ad that said Groen’s supporters opposed stem cell research and a woman’s right to choose. Jenny Durkan, co-chairwoman of the group, said the PAC never intended to run a TV commercial until the other groups spent hundreds of thousands of dollars on theirs. Stephen Johnson, a Republican state senator who faces Supreme Court Judge Susan Owens in a runoff next month, recently called for a stop to the personal attacks. He said public backlash to the negative TV ads might have contributed to Alexander’s defeat at the polls. “I’m concerned about my own campaign going forward,” Johnson said. “There was a wide enough unhappiness to know they were controversial and probably not something I’d like to get into.” Christian Sinderman, a political consultant to the Owens campaign, agreed but noted, “That doesn’t mean they won’t come back and try again.” Kentucky battles In Kentucky, where little was spent on judicial campaigns two years ago, all but two of 274 seats in the judiciary are up for election, including five of the seven Supreme Court seats. Four of those five are contested elections. A coalition of business groups called the Partnership for Commonsense Justice recently distributed short questionnaires to judicial candidates. Members of the group, based in Frankfort, Ky., formed the coalition after recent tort reform surveys ranked Kentucky courts among the worst in the nation in terms of verdicts against businesses, said Frank Jemley, a spokesman for the partnership. Meanwhile, candidates are debating about how much they can say. “The job of a judge is to be impartial,” said Michael Fortney, campaign director for Judge Bill Cunningham of the Kentucky Circuit Court, who is running for one of the Supreme Court seats. “When judicial candidates make political statements on issues it impedes their ability to be impartial.” Cunningham’s opponent, Judge Rick Johnson of the Kentucky Appeals Court, disagreed. He called it “insulting” to believe his vote in a case would be swayed by a contribution to his campaign. “My personal belief is that life begins at conception,” he said. “ White has made it abundantly clear that I have the right to say that.” Another Supreme Court candidate, Marcus Carey, filed suit in June challenging Kentucky’s judicial canon, which was revised following a previous suit. Carey v. Wolnitzek et al, No. 3:06-cv-00036 (E.D. Ky.). “The new canon continues to prohibit candidates from announcing their views-such as political issues-a right the Supreme Court said was protected,” said James Bopp, owner of Terre Haute, Ind.-based Bopp, Coleson & Bostrom who represents Carey in the suit. Bopp, the winning lawyer in the White case, has similar suits pending in other states. In Oregon, fundraising has already broken state records. As of Oct. 2, Virginia Linder, a judge in the Oregon Court of Appeals running for Supreme Court next month, raised more than $99,000, nearly one-third from a Washington group called the Gay & Lesbian Victory Fund, which supports gay, lesbian, bi-sexual and transgender candidates. Jack Roberts, a former state labor commissioner, who is running against Linder next month, said that a large portion of the $400,000 raised during the primaries in his campaign came from the American Justice Partnership, a Washington group created last year by the National Association of Manufacturers, which has concerns about the cost of litigation. “I wasn’t involved in talking to them and never solicited the money, but they put money into our race,” said Roberts. He said he and Linder recently agreed to a code of conduct because judicial leaders are “concerned things will spin out of control,” following the White decision. “A lot of people are watching this race to see if it’ll happen,” he said. The ballot initiatives Oregon’s race also features a ballot initiative that would require Supreme Court and appellate justices to be elected by districts. The measure is backed by FreedomWorks Issue PAC, an affiliate of a Washington group headed by former House Majority Leader Dick Armey, R-Texas. Supporters argue that voting by district would create a better geographical representation of the state on the bench. As part of the measure, candidates have to be residents of the district that elects them. In Colorado, a ballot measure called Amendment 40 would impose a 10-year term limit on appellate and high court justices. It also would shorten terms to four years. Judges now serve six-year terms until a maximum age of 70. Backed by former state Senate President John Andrews, supporters argue that more elections would make judges more attuned to voters. But critics, including the U.S. Chamber of Commerce and the Colorado Trial Lawyers Association, noted that the measure is retroactive and could displace five of the state’s seven Supreme Court judges immediately. In South Dakota, a radical ballot measure called Amendment E would strip away judicial immunity, allowing civil suits and criminal charges to be brought against judges. Jake Hanes, a spokesman for South Dakotans for Amendment E, said the measure would hold judges accountable. Opponents, which include the South Dakota Chamber of Commerce, said the measure would penalize jurors, school board members and others with judicial immunity, said Tom Barnett, executive director of the state bar.

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