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The polite judicial races of the past have been replaced by aggressive campaigns fueled by special-interest dollars and characterized by an anything-goes attitude that has some members of the nation’s judiciary concerned about whether the trend is jeopardizing public confidence in the courts. It’s time to talk about the problems cropping up nationwide, according to Texas Supreme Court Chief Justice Tom Phillips and state Sen. Rodney Ellis. Phillips, a Republican, and Ellis, a Democrat, initiated plans for a summit meeting scheduled later this year in Chicago for chief justices and lawmakers from the 15 largest states that select judges through some type of elections. “The purpose of the summit is to mobilize state judicial and legislative leaders to address existing and potential problems in judicial election systems in these states and to establish a network of support for reforms,” says Ellis, chairman of the Senate Jurisprudence Committee. Roy Schotland, a Georgetown University Law Center professor who is helping to organize the summit, says 39 states hold some type of judicial elections. “The problems that occur in judicial elections are not just limited to Texas,” Phillips says. Although the state’s Supreme Court has been the target of two “60 Minutes” broadcasts questioning whether justice is for sale in Texas, it has never been true that Texas is the only state that faced problems with judicial elections, Schotland says. Phillips says the battle over how tort law should be developed, which was traditionally fought in the legislative arena, expanded to the Texas courts a decade ago but has now moved to the courts in other states. One of the battleground states this year is Ohio, where trial lawyers and labor unions are lined up behind Supreme Court Justice Alice Robie Resnick, a Democrat, while business interests and insurance companies are backing her Republican challenger, Cuyahoga County Court of Appeals Judge Terrence O’Donnell. Resnick, who is seeking her third six-year term on Ohio’s high court, has sided with the majority in several 4-3 decisions involving insurance cases and invalidating a state law that would have limited damages in civil suits. “Millions of dollars are expected to be spent on the Resnick-O’Donnell race by candidates’ campaigns and through ‘independent expenditure’ committees that field ads on their behalf,” The Columbus Dispatch reported on Sept. 6. While court rules restrict candidates to spending no more than $500,000 each on general election campaigns, there are no restrictions on what special interests and political parties can spend, the newspaper reported. “I think the number of [judicial] elections around the country where classic interest group politics have led to big spending is increasing,” says Randall T. Shepard, chief justice of the Indiana Supreme Court. “We want something different out of judges than we do out of policymakers,” Shepard says. “That’s why I think this trend is bad for the country.” Shepard says that in races for governor or legislative posts, people look for candidates who see things their way, but that they want judges to be impartial. Anyone involved in litigation doesn’t feel comfortable if the lawyer for the other side has given $10,000 to a judge’s campaign, he says. FALSE ACCUSATIONS? The source of funding for judicial candidates’ campaigns isn’t the only problem, however. Candidates are becoming aggressive in their campaigning and making accusations — in some cases, false ones — against their opponents. The Judicial Inquiry Commission in Alabama found that Harold See, a member of that state’s supreme court, ran an inaccurate campaign ad attacking a Republican primary opponent — state circuit Judge Roy Moore — says Jack Campbell, spokesman for the Alabama Administrative Office of Courts. See denies the allegations. The ad insinuated that Moore had been soft on drug dealers, Campbell alleges. If the Judicial Inquiry Commission finds that a judge has made a false charge against an opponent, Alabama’s code of conduct requires that the judge be removed from the bench until the Court of Judiciary can act in the case. Campbell says See was removed from the supreme court, but a ruling by U.S. District Judge Ira Dement of Montgomery, Ala., restored his job. See, who lost to Moore in the race for the GOP nomination for chief justice, maintains that the campaign ad was proper and accurate. “It’s absolutely, tee-totally 100 percent accurate,” says Bill Baxley, See’s lawyer and a partner in Birmingham, Ala.’s Baxley, Dillard, Dauphin & McKnight. See also contends that the Alabama code violates constitutional free-speech guarantees, Baxley says. The case is pending before the 11th U.S. Circuit Court of Appeals in Atlanta. Phillips says the upcoming summit, scheduled Dec. 7-8 in Chicago, will give the approximately 60 participants an opportunity to discuss the types of election and ethics laws that should be in place, regardless of the type of election system that a state has. The participants also are expected to look at ways to educate voters about judicial candidates. Phillips says it might be useful to evaluate voter education projects used in several states to present neutral information on judges’ records. Another issue that could be addressed, Schotland says, is the effect of moving judicial elections to dates when other elections are not being held. Texas judges have been “wiped out” in the past because the gubernatorial candidate heading the opposing party’s ticket did well at the polls, he says. The summit planners don’t want to produce a report that will be filed away to gather dust but won’t result in changes. “Our hope is not to just issue a report but to come up with an action plan and have efforts to monitor what happens in the months ahead,” Phillips says. Schotland says the gathering is “absolutely unprecedented” and that he is expecting the summit to produce results. “If that collection of brain power doesn’t produce anything, I’ll fall over in a dead faint,” he says. The National Center for State Courts, headquartered in Williamsburg, Va., is coordinating the conference. The event is being funded by grants from the Chicago-based Joyce Foundation and the Open Society Institute, a private foundation that promotes the development and maintenance of open societies around the world. States expected to send delegates include California, Florida, Georgia, Illinois, Indiana, Michigan, Missouri, New York, North Carolina, Ohio, Pennsylvania, Tennessee, Texas, Washington and Wisconsin.

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