X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
FRANKLIN, Ky. — There’s a new justice center here, but the old Simpson County courthouse is still the epicenter of town — the stately yellow Methodist church, where Johnny Cash and June Carter got married in 1968, sits on one corner; the Franklin Favorite, the 149-year-old weekly newspaper, is a block away; the Frosty Freeze, which turned 50 years old in May and sells soft-serve ice cream and homemade sloppy Joes, is just down the street. On the second floor of the old courthouse is a renovated meeting room where�the county’s top elected official, Judge-Executive Jim Henderson, recently had installed on the wall behind the podium the words “In God We Trust” in foot-high, rose-colored letters. The giant words provided a touch of irony, or perhaps emphasis, when Kentucky Supreme Court hopeful Rick Johnson stood up at the Franklin candidates forum last month to give his stump speech — and quite deliberately push the boundaries of what many observers fear may be the future of judicial campaigns, not just in Kentucky but in the 38 other states where there is some form of judicial elections as well. “I want you, the voters, to know that I oppose abortion,” he told the crowd. “I support having the Ten Commandments in our schools and courthouses. . . . I support the Second Amendment right to bear arms. . . . I believe marriage is between only one man and one woman. “I live a life of traditional western Kentucky values,” added Johnson, who is making his third bid for the Kentucky Supreme Court. “I think the way you think.” In Simpson County and the 23 other western Kentucky counties that make up the state’s 1st Supreme Court District — a deeply conservative swatch of Bible Belt America with deep green pastureland and counties whose biggest towns have no more than 300 people — that’s probably true. But by custom, canon, and, say many legal experts, sound public policy, judicial candidates have in the past almost always kept opinions like that to themselves for fear of compromising their impartiality once on the bench. Instead, they doggedly stuck to a barefaced recitation of biographical details. “Even pledging you’d be tough on crime, if that didn’t cross the line, it was mighty close,” says Edwin White, a circuit judge in Kentucky’s 3rd Judicial District in Christian County, who was first elected in 1983. Then came the U.S. Supreme Court’s landmark 2002 decision, Republican Party of Minnesota v. Suzanne White , and suddenly it wasn’t so clear anymore exactly what a judge could and couldn’t say while running for office. The 5-4 decision was actually a narrow ruling that declared unconstitutional one specific Minnesota canon prohibiting judicial candidates from “announcing” their views on controversial legal and political subjects. But it was a sizable crack in the once-impregnable state rules that governed the conduct of local judicial candidates. Encouraged in part by the attitude espoused by Justice Antonin Scalia, the White case has spurred a dozen or more similar, and so far highly successful, cases against judicial canons in other states, including those that prohibit judicial candidates from directly asking for campaign donations. “The notion that the special context of electioneering justifies an abridgement of the right to speak out on disputed issues sets our First Amendment jurisprudence on its head,” Scalia wrote for the majority. Big money, including even donations from single-issue third parties often based in Washington, D.C., is now an established part of some judicial campaigns, especially in neighboring states such as Illinois. As Johnson told the crowd at the Franklin candidates forum: “The rules have changed. I agree with the new rule because I believe the old system kept the voters in the dark and was arbitrary and elitist.” That, of course, is not the opinion of everyone, including Johnson’s opponent, Circuit Judge Bill Cunningham, who has been sharply critical of Johnson’s pronouncements. “It’s not just important that our court system be just; it must appear to be just. That’s just as important,” says Cunningham, 62, who spent 11 years as commonwealth attorney in the same four-county judicial circuit where he was first elected judge in 1991. Many people, including Kentucky Supreme Court Chief Justice Joe Lambert, were expecting the worst this election year in Kentucky, if only because all but two judgeships in the entire state are up for election, the result of a new law designed to harmonize judicial terms. That makes 211 trial judges, 34 additional family court judges, all 14 seats on the Kentucky Court of Appeals, and five of the seven Supreme Court seats. “We have the mother of all judicial elections going on now,” says Lambert. �IT DOESN’T REALLY MATTER’ Johnson, 52, who has been on the Kentucky Court of Appeals 15 years, has spent a lot of time studying the Whitedecision. The 1979 George Washington University Law School graduate wrote a lengthy law review article, published in the Northern Kentucky Law Reviewin 2003, on the impact of White in Kentucky. And it’s hard to argue, at least among the audience at the Franklin forum, that it’s a bad thing for a judicial candidate to give his opinion on hot-button issues. Although Johnson’s remarks might have stood out to the conscientious listener, it was tough to find anyone at the forum who found them objectionable. “I noticed he said it,” remarks Lydia Latham, president of the Franklin-Simpson Chamber of Commerce , which co-sponsored the forum. “But they’re in line with my views, so it doesn’t really matter.” Indeed, for many people Johnson’s remarks on abortion and gun control provided information they wanted to know about a candidate to the Kentucky Supreme Court — or any other court. “You can get an idea of whether he’s one of those bleeding hearts or not,” notes Jerry Jones, a real estate broker who was sitting in one of the rows of chairs closest to the podium. “That he thinks like we do, that allows a person to know him when they don’t know him. And I’ve heard enough to say that I will vote for him.” In fact, says Jones, he’s more suspicious of judicial candidates who claim their fealty to impartiality prevents them from telling people what they think. “A lot of these folks enjoy using this as an excuse not to answer any questions,” he says. Brownie Bennett, who was also at the forum, is a sales representative at the Franklin Favoriteand hardly a knee-jerk conservative. Judicial elections are different, she says, but it has nothing to do with curbing a candidate’s ability to speak out on controversial issues to maintain his impartiality. It has to do with a judge’s role in society. “I was the only one of my friends to admit that I voted for Clinton the second time,” she says over a cocktail at Sol Azteca, a Mexican restaurant on South Main Street and one of two places in Simpson County where you can buy a drink. “But I didn’t vote for him because he was a moral leader.” Judges, she says, are different. “We elect a judge mainly on moralistic issues. So it’s hard to vote for a judge if you don’t know what he stands for. I appreciate his honesty,” she says, referring to Johnson. “I think it’s refreshing.” It’s a point of view that Lambert, who has stood for elected judicial office three times, has often heard. “It’s the classic dilemma,” says Lambert. “Any time there’s an election, voters have a right to know what a particular candidate thinks about some issue that the voters think is important. “But it seems to me that publicly articulating a view is qualitatively different than merely having a privately held view. When it’s just a privately held view, when faced with a legal issue, you don’t have to backpedal to reach a different conclusion.” Despite the Whitedecision, a ruling Lambert says he has feared “from day one,” most judicial candidates are still campaigning on the old model and fervently defending it. “As Judge Johnson says, it’s important to tell you other things,” Logan Askew, a tall, patrician candidate from Hopkinsville, in neighboring Christian County, told the forum. Askew, who spoke after Johnson, is running for Johnson’s appellate court seat. For a moment, it seemed that he, too, was going to tell the crowd what he thought about gun control, property rights, and prayer in school. Instead, Askew — who ends his stump speeches with the line, “I ask you to vote for Askew on November 7″ — began rattling off details of his background: where he’d graduated; where he’d practiced law; and that he was active in his church, had co-founded the Hopkinsville YMCA, was Hopkinsville city attorney for six years, and spent five years on the Hopkinsville City Council. “I was asked at the law school at Paducah whether I believe Roe v. Wadewas correctly decided,” said Askew as he was leaving the courthouse. “And I told them, �What difference does it make? I’m bound to follow the U.S. Supreme Court and Kentucky Supreme Court precedents.’ “ Indeed, suggested Askew, who is a solo practitioner, he wonders whether lawyers will now have to study a judge’s pre-election speeches to make sure the judge didn’t say anything while running for office that could prejudice a case. “In the future, it could be malpractice not to research campaign statements,” he said. ILLINOIS: THE FLOW OF MILLIONS Some 300 miles east of Franklin, across the Ohio River on the Cave-in-Rock ferry and down I-64, you land in the western edge of southern Illinois, home to Madison and St. Clair counties — whose jurors never met a plaintiff they didn’t like — and the sprawling 5th Appellate and Supreme Court districts of Illinois. Here, too, is another side to the future of judicial campaigns, the big-money side fueled by outside interests who have a stake in the outcome. For those who want their judges to remain not beholden to special interests and removed from the dumbing-down, distorting effect of television ad campaigns, it’s not a pretty picture. “It happens every day in our courts,” intones an ominous voice in a radio ad for Steve McGlynn, who was appointed to the appellate bench last year and is now running for a full term in the 5th District. “Dangerous predators let out of jail to prey on children. . . . Thankfully, Judge Steve McGlynn is cracking down on predators. . . . He wrote the court decision to keep a dangerous predator locked up and off the streets. Elect Steve McGlynn: He’s keeping dangerous criminals locked up where they belong.” McGlynn did author a 3-0 opinion in September that ruled a convicted child-sex offender named David B. should remain involuntarily confined in a county mental health center. But it’s hard to imagine any judge ruling otherwise. The unanimous decision affirmed a lower court ruling which had refused to release David B., in part because he consistently refused to accept any treatment or medication. In fact, as McGlynn wrote in his opinion, the appellate court had reviewed David B.’s confinement 28 times before 2005, and each time reached the same conclusion. Notwithstanding McGlynn’s sexual-predator ad, the race for the 5th District seat is being fueled by one issue: tort reform, whose proponents, including the U.S. Chamber of Commerce’s Institute for Legal Reform, are funnelling what looks to be a record-breaking amount of money into a state court of appeals race. So far, the institute alone has contributed $1.3 million. “To say that it doesn’t matter if you have liability-expanding judges until you get to the Supreme Court simply adds to the expense and effort the business community needs to get a decent decision,” says institute spokesman Larry Akey. For years, Madison County has had a reputation as a “judicial hellhole,” a place where it is easy to get standing in class actions and jury awards are high. The business community responded by pouring millions into the 2004 race to successfully elect a Republican Supreme Court justice from the 5th Judicial Circuit. The race between Lloyd Karmeier and Democrat Gordon Maag, who received ample sums from the trial bar, ultimately produced a $9.3 million slugfest that featured a total of 7,500 television spots. The 5th District has an outsized television market, as well: Political ads are beamed not just into Illinois but also into St. Louis; Paducah, Ky.; Indiana; and parts of Tennessee. Karmeier, the first Republican to serve on the Supreme Court from the 5th District in 35 years, went on to beat Maag, who failed to reach the 60 percent retention vote he needed to keep his appellate seat, as well. In 2005, Karmeier appointed McGlynn, the former chairman of the St. Clair County Republican Committee and former co-chairman of the state Republican Party, to Maag’s appellate court seat. This year, the same battle is taking place in the Court of Appeals race that, as of Nov. 2, had taken in more than $3 million from both sides, almost all of it from special interests. In addition to the Institute for Legal Reform, the D.C.-based American Tort Reform Association gave McGlynn $120,000, and the American Justice Partnership, a tort-reform group affiliated with the National Association of Manufacturers, contributed $305,000. As of Nov. 2, McGlynn’s opponent, Circuit Judge Bruce Stewart, had picked up nearly $200,000 from individual law firm contributions, about $115,000 from unions, and some $325,000 from the Illinois Democratic Party. AW, COME ON, CARDINALS Illinois’ 5th Appellate and 5th Supreme Court districts both stretch across 37 mostly rural counties in southern Illinois. From East St. Louis and the litigation-happy counties of Madison and St. Clair on the Missouri line to the university town�of Carbondale and the Indiana and Kentucky state lines in the east, the district is roughly the size of Massachusetts. Rows of reddish fields and withered corn stretch out neatly beyond the state roads and interstates. Despite the district’s size, McGlynn and Stewart found themselves just a mile and a half from each other at separate events in Belleville, the county seat of St. Clair County, one mid-October evening. McGlynn, a boyish-looking fourth-generation lawyer of 44 who favors a dark pinstriped suit and bright-red tie, was cooling his heels at the annual Ronald Reagan Day dinner of the St. Clair County Republican Committee, while the seven other GOP candidates ahead of him — each separately introduced by county Chairman Bill Zychlewicz — gave their standard-issue stump speech. “Why am I running?” asked Paul Evans, who’s trying to unseat the Democratic incumbent St. Clair County circuit judge. “Because it’s the right thing to do.” Or, from state Sen. Dave Luechtefeld: “I have no opponent this year, and let me tell you, that’s the way to run. My wife said �If you lose this one, we got problems,’ ” said Luechtefeld, to general applause. “I would have definitely started the music during dinner,” whispered McGlynn as he waited for the musical guest, a barbershop quartet, to finish singing. The Republican dinner was held at Fischer’s Restaurant on West Main Street, the type of restaurant which welcomes large parties, has a spacious banquet hall with mirrored ceilings, and has a marquee outside with an electronic sign that, during the Ronald Reagan dinner, kept flashing, “Go Cards.” Across town at the Belle-Clair County Fairgrounds, the St. Clair County Democrats were having their John F. Kennedy dinner. It was the seventh and deciding game of the National League Championship between the St. Louis Cardinals and the New York Mets, after the Cardinals had lost Game 6. With St. Louis just 15 miles to the east, Chairman Bob Sprague was happy to have anyone show up. “Ticket sales are fine; it’s just our crowd will be down,” said Sprague, a dry-tongued lawyer who has chaired the Democratic Party here for 26 years. “If the damn Cardinals had won, we wouldn’t have had this problem,” he added. A jazz singer was belting out standards with a keyboard accompanist, and Bud Ice and Busch were on sale for $2.75. The cavernous hall was decorated with rows of red, white, and blue balloons, and Bruce Stewart was standing rather anonymously, having just left another campaign event in Burksville, Monroe County — a town so tiny, says Stewart, there is no population listed on the signpost. “I love those events,” the 54-year-old jurist recalled the next day in his hometown of Harrisburg, Ill., two and a half hours east of Belleville, during a meal around the corner from his campaign office. The Burksville visit, said Stewart, was held in a restaurant bar. “There’re probably 15 tables of four, and they’re all full, and 25 people are waiting in line for the chicken dinner. All the candidates’ bumper stickers are laid out on the pool table. The county chairman, he knows I have to get to St. Clair, so he pulls out a chair and stands on it and introduces me, and then I stand on the chair and give the three reasons people should vote for me,” explained Stewart. “I started with 80,000 miles on my car in February 2005. Now I have 170,000 miles; I’m averaging about 1,000 miles a week.” LOSING THE JUDICIAL PHILOSOPHY Back over at Fischer’s, McGlynn was finally ready to speak. There was a distinctly renegade mood in the banquet hall. Republicans are still very much a minority party in St. Clair, and many of the older attendees obviously came to the GOP later in life. “The man I worked for thought Roosevelt was God,” recalled one elderly woman, a former legal secretary. The walls behind the podium were lined with campaign posters promoting a list of names that sounded like a primer on European-American diversity: McGlynn, Topinka, Umholtz, Keeb, Avedisian, Bielke, and Kugler. “Life litigated at every corner is not the American dream,” said McGlynn, standing at the podium with one hand in his pocket. “It is the American nightmare, and we judges have to do something about it.” It’s McGlynn’s standard reform message, a method of judging that takes in what he calls the “big picture.” Judges, he says, especially appellate judges, must weigh the impact of their decisions on the whole community when deciding how to rule. “As a society, we’ve seen an explosion in litigation,” said McGlynn. “But we’ve not seen an explosion in justice. The thing that chased the doctors away was not huge verdicts,” he added. “It’s that if one doctor makes a mistake, then 10 are sued.” Stewart, who was first elected in 1996 and whose judicial circuit covers nine counties, vehemently disagrees. “There is no judicial philosophy that allows a judge to decide cases outside the record,” he said. “That’s bullshit,” responded McGlynn, when Stewart’s viewpoint came up in the conversation. “That’s fine for a circuit judge to say.” Said Stewart the next day: “Steve’s OK. We just want the same job.” In the end, the judicial philosophy of each man will undoubtedly be subsumed by the flood of television and radio ads aired in the final days of the campaign, making this judicial race eerily similar to legislative races going on elsewhere in the state. The problem, says Mike Lawrence of the Paul Simon Public Policy Institute at Southern Illinois University, is that to properly function, the judiciary should stand well apart from the other two branches of government. “When judicial candidates campaign like legislative candidates, it erodes confidence in the judiciary, because people expect judges to act differently than legislators and governors,” he says. Money, of course, does more than buy television ads. It has shaped the contours of the campaigns. “By coming in and by dumping just tons of money down there, they’ve defined the content of this election and the one which preceded it,” says Cindi Canary, the executive director of the Chicago-based Illinois Campaign for Political Reform. More importantly, the outside money interests, starting with Karmeier’s 2004 Supreme Court campaign, have managed to send a message that has gone well beyond the judiciary and into the Statehouse in Springfield. “The great outcome of the [2004] Supreme Court race, where a Republican won the seat in a heavily Democratic district, was not in the courts. It was in the legislature and the governor’s offices,” says Lawrence. “When medical malpractice was viewed as a key issue in the race, it changed the atmosphere in the Statehouse, and the Democratic legislature and Democratic governor enacted some pretty significant med-mal changes.” Within a year of Karmeier’s victory, Illinois had passed legislation capping noneconomic damages in tort cases at $500,000. OFF THE MARK? Paducah, Ky., just an hour’s drive back over the Ohio River from Stewart’s home base of Harrisburg, may have been the first city in the country to boast two Super Wal-Marts. But it also has a dozen art galleries and high-end restaurants where the vodka martinis cost $10. Rick Johnson, the Kentucky Supreme Court hopeful intent on pushing the boundaries of what a judicial candidate can say, lives 15 miles south of Paducah in Symsonia, a town of 1,000 people. He graduated from Symsonia High in 1972. His opponent, Bill Cunningham, graduated from Marshall County’s Benton High School, 11 miles away. Unlike in Illinois, they are running their races for a relatively modest $200,000 apiece. It was early one Saturday morning, with the election less than three weeks away, and a thin carpet of fog was still hanging over the western Kentucky countryside. The sun had just broken the horizon, but Johnson was already in the town of Cuba, an hour south of Symsonia, where a sign at the entrance to the town reminds people that Cuba High was the 1952 Kentucky baseball champion. Seated at a long wooden table inside the Cuba Elementary School gym, Johnson was plowing through a breakfast of eggs, biscuits, gravy, and ham at a fund-raiser for the Cuba Community Volunteer Fire Department, hunched over the styrofoam plate as if it was going to be the best meal of a very long day. “Madisonville, then Marion, then Pembroke, then to Franklin,” said Johnson, reciting the day’s itinerary. Johnson was introduced at the Fire Department breakfast, but he didn’t speak. He didn’t need to. This was home territory, a seminar on the importance of retail politics in any election campaign. “I vote for people I know and trust,” said David Jackson, a Cuba Fire Department volunteer and state lobbyist for the Kentucky Firefighter Association. “There might not be nothing he can do for us, but to have somebody we know on the Supreme Court, that’s a plus.” Johnson’s personal views on major social issues are hardly an immediate concern in Cuba. But Johnson’s standard stump speech, which includes his views on seven hot-button social issues, has not gone down well at all with the Kentucky legal establishment. “Judicial candidates who publicly state their views on disputed issues inevitably create the impression that such views would affect how they would rule from the bench, and that runs counter to the principle of judicial independence,” the Kentucky Judicial Campaign Conduct Committee said about Johnson in a statement released on Oct. 11. The 21-member group, made up mostly of lawyers, academics and former judges, is an independent committee aimed at encouraging ethical campaign behavior. “We think Judge Johnson’s view of judicial campaigns . . . is off the mark,” the statement added. Sitting in his appellate court office in a nondescript strip mall in Mayfield after the Cuba breakfast, with four more events that day in four other towns still to come, Johnson was upbeat and unapologetic. “Who exactly is �we’?” he wondered, referring to the statement. “You’re a bunch of self-appointed elitists. The audacity of sending this press release across my district to all my voters. “And this is happening on the same day the federal courts are recognizing that we have even more rights,” he noted, referring to an Oct. 10 decision by U.S. District Judge Karen Caldwell in Frankfort. Responding to a complaint from another Kentucky Supreme Court candidate, Marcus Carey, Caldwell had ruled that the state’s ban on judicial candidates personally soliciting campaign contributions and its ban on candidates announcing their political party violated the First Amendment. “My opponent tries to simplify it,” said Johnson. “He says, As judges, we’re required to follow the law, and that our personal opinions are irrelevant. I say, There’s a reason we have split 4-3 decisions.” FOR YOUR CONSIDERATION Rick Johnson may not be the most natural campaigner, but he works the crowds with a discipline and a diligence that goes with a man known in his district as never missing a political event. In Kentucky, unlike Illinois, sitting judges who lose an election for another judgeship cannot return to their old job. Bill Cunningham is a bit looser, a bit more folksy; at times, he looks like a rumpled version of Sen. Arlen Specter. Cunningham wrote a newspaper column for 25 years and has published six books, including a history of the Kentucky State Penitentiary, which is in Eddyville, where he lived until he was 15, and a history of western Kentucky race relations. On occasion, he quotes Shakespeare to make a point. Appellate judges like Johnson lead relatively isolated lives. Circuit judges, who hear all felony cases and civil disputes of more than $4,000 and try death penalty cases as well, are far closer to the ground. Cunningham’s judicial circuit, where he has been a judge for 15 years, covers Trigg, Lyon, Caldwell, and Livingston counties. There are no more than 50,000 people in all four counties; the largest city, Princeton, has a population of 6,500. Cunningham empanels three grand juries in each county every year. “I have spoken to thousands of people in my courtrooms over the years,” he notes. “This is my most historic courthouse,” says Cunningham, standing inside the Livingston County Courthouse in Smithland, population 400. The courthouse dates from 1845, and its benches still have hand-forged nails. “This courthouse was built when Abraham Lincoln was practicing law,” he adds. There’s a rope leading from the tin ceiling of the second-floor courtroom which rings a bell on the roof. Years ago, the county’s one-armed jailer, Orville Cox, would ring the bell every morning, says his granddaughter, Debra Willbanks, the court’s child support officer. “Cunningham’s pretty well thought of here,” says Bill Armstrong over breakfast at the Levee Restaurant, where the coffee is served black and many of the customers have deep emphysematic coughs. “He pretty well treats everyone the same,” adds Armstrong, who owns a local lawn-mower service, giving what he considers the highest compliment for a judge. An hour later, Cunningham has left the courthouse and driven 30 miles northeast to the Christian County seat of Marion. “I’m Judge Bill Cunningham and I’m running for Supreme Court, and I’d appreciate your consideration,” he says, again and again, as he works two coffee shops and the courthouse there. “I’ve been up in front of you,” says one person who recognizes Cunningham. “You know the Paducah Grastys?” asks someone else. “They’re the same in Trigg County, too,” he responds. At the Crittenden County Senior Citizen Center, where he says grace and eats a meal of homemade meatloaf and peanut-butter crunch, someone tells Cunningham that he sentenced her husband to prison. “She did it to refresh my memory of who she was,” Cunningham explained later. “That happens all the time.” Another woman says she has just finished reading one of his books. No one asks his opinion on hot-button social issues, and Cunningham says he wouldn’t say what they are, anyway — although he did announce his views on abortion and marriage once during a joint appearance with Johnson at the Christian County Democratic Women’s Club. “It was question time, and they all looked at me for an answer, and I blurted out an answer,” he recalls. “The undercurrent of this whole thing is very disturbing,” he says, referring to the controversy over what a judicial candidate should or shouldn’t say. “We’re talking about our third branch of government, and whether we want it to be judicial or political. “I’ve got a guy now that I’ve sent to death row,” he adds. “I don’t want to meet my maker and say I sent him for political reasons.”
T.R. Goldman can be contacted at [email protected] .

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.