A FORUM ON JUDICIAL SELECTION: A TIME FOR ACTION

November 19-20, 2009

Ohio Judicial Center 65 S. Front Street Columbus, Ohio 43215

Center of Science and Industry 333 W. Broad Street Columbus, Ohio 43215

Conveners: Chief Justice Thomas J. Moyer League of Women Voters of Ohio Education Fund Ohio State Bar Association

BRIEFING BOOK Table of Contents

I. AN INTRODUCTION A. A letter from the conveners B. Justice Sandra Day O’Connor on Judicial Selection C. Tentative Agenda D. List of participants/observers (invitees)

II. THE LANDSCAPE A. What People Think a. Summaries of polling results B. How much money is spent in Ohio/other top states on Supreme Court Races a. Selected state reports b. The New Politics of Judicial Elections in the Great Lakes States (Justice at Stake) C. How are Supreme Court justices chosen a. A state-by-state summary

III. THE OPTIONS A. Appointive/Retention Election 1. Model Judicial Selection Provisions 2. Judicial Nominating Commissions 3. Judicial Performance Evaluations B. Modifications to Current Structure 1. Public Financing a. The North Carolina Experience i. Public Campaign Financing: North Carolina Judiciary – balancing the sales (Center for Governmental Studies) ii. Judicial Campaigns & Elections: North Carolina (AJS) b. Public Financing of Judicial Campaigns: Report of the Commission on Public Financing of Judicial Campaigns (ABA) 2. Judicial Qualification Commissions & Judicial Nominating Commissions a. Standards to serve as judge

With special appreciation to the American Judicature Society, the American Bar Association, Center for Governmental Studies, U.S. Chamber Institute for Legal Reform, Justice at Stake, and others for providing essential materials for this briefing document.

Dear forum attendee:

How should Ohio select justices for its Supreme Court? Is the current system the best, or are there alternatives that might better serve the administration of justice? These and other important issues are the focus of “A Forum on Judicial Selection: A Time for Action,” co-sponsored by Chief Justice Thomas J. Moyer, the League of Women Voters of Ohio Education Fund, and the Ohio State Bar Association. The forum is made possible by a grant from the Joyce Foundation.

We are honored to welcome former U.S. Supreme Court Justice Sandra Day O’Connor to headline the forum. Justice O’Connor has committed herself to the cause of judicial reform and has spent considerable time leading forums like this across the country because she recognizes, as do the conveners of this forum, that the time has come to do something to address the widespread public perception that campaign contributions influence judicial decision making.

Our goal is to determine whether to pursue a new selection method for Supreme Court justices and to explore the various reforms that other states have implemented. If the public believes that judges are not fair and impartial, then the integrity of the third branch is compromised, and this undermines the strength of our entire democratic system.

This briefing book is designed to provide background material to help prepare you to participate in the forum. The front material contains information about the forum, including the agenda, information about the conveners, and a list of invited participants and observers. The section entitled “Landscape” offers detailed information and citations to resources about polling on the question of the public’s view on the influence of money on judicial decision-making, an examination of how judicial campaigns are conducted, and how justices are selected in other states. The “Options” section explores specific reform measures, how they have been pursued in other states, and their effects. For more detailed information and resources on these and other related topics, we invite you to visit the forum Web site: www.judicialselection.net.

Thank you for your interest in this important cause and your participation in this forum.

Sincerely,

Chief Justice Thomas J. Moyer League of Women Voters President Meg Flack

OSBA President Barbara Howard

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Justice O’Connor to Keynote and Facilitate Ohio Forum on Judicial Selection

Retired United States Supreme Court Justice Sandra Day O’Connor will join Ohio leaders in “A Forum on Judicial Selection: A Time for Action” to consider alternative forms of judicial selection. Justice O’Connor believes that threats to judicial independence are rising exponentially as more and more money pours into judicial races around the country.

“It’s the flood of money coming into our courtrooms,” O’Connor said. “Multimillion-dollar judicial campaigns make it difficult to know whether a judge is deciding a case based on the merits or on concerns about re-election,” she said.

According to Justice O’Connor, “If we lose appreciation for our government’s structure and the role of the judiciary within it, it is only a matter of time before the judicial branch becomes just another political arm of the government.”

Justice O’Connor puts forth a three-point plan to fix the problem:

• Replace the partisan election of its judges with a merit-selection system, or at least with a nonpartisan system in which the candidates do not affiliate with political parties.

• Set up campaign-conduct committees to educate voters and the media about the criteria people should use to select judges. These committees can also publicize accurate information about the sources of big contributions, providing the kind of transparency that allows voters to decide whether a judicial candidate’s impartiality may be compromised by contributors.

• Distribute voter education pamphlets to provide accurate and unbiased information about the qualifications of a judicial candidate. Voter education guides can provide information about relevant qualifications that are often left out of campaign ads and media coverage.

These and other proposals will be the focus of “A Forum on Judicial Selection: A Time for Action.” The anticipated outcome of the day-and-a -half forum is developing a consensus about how best to approach changes to judicial selection in Ohio.

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Agenda

Thursday, November 19, 2009 [event at Ohio Judicial Center]

2:00 p.m. – 2:45 p.m. Registration

2:45 p.m. – 3p.m. Opening Remarks by Chief Justice Moyer

3 p.m. – 5:30 p.m. Plenary Session Moderator: Yvette McGee Brown

Introduction of panel by Meg Flack, President, League of Women Voters of Ohio and Barbara Howard, President, Ohio State Bar Association

Panel discussion and overview of current situation, other states selection methods, public financing, and options for Ohio.

Panel: Bert Brandenburg (Justice at Stake) Seth Anderson (American Judicature Society) Christopher Heagarty (North Carolina) Judge Wanda Bryant (North Carolina) Judge Ruth McGregor (Arizona) Daryl Yost (Indiana)

5:30 p.m. – 6:30 p.m. Reception [Ohio Judicial Center Library]

Friday, November 20, 2009 [event at COSI]

8:00 a.m. – 8:30 a.m. Registration and Continental Breakfast [Gallery III]

8:30 a.m. – 9:00 a.m. Welcome by Conveners [Galaxy Theater]

Remarks by Honorable Ted Strickland, Governor

9:00 a.m. – 9:20 a.m. Plenary Session [Galaxy Theater]

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9:30 a.m. – 10:30 a.m Working Session [Gallery II] Moderator: Nancy Rogers

Group will discuss various options for selecting Supreme Court Justices.

10:30 a.m. – 11:45 a.m. Break-out Groups [Gallery II]

Several small groups will convene to have facilitated discussion of best aspects of various options for selecting Supreme Court Justices.

12 p.m. – 1 p.m. Lunch [City View room]

Remarks by Honorable Armond Budish, Speaker, Ohio House of Representatives

Remarks by Honorable Tom Niehaus, President Pro Tempore, Ohio Senate

1:30 p.m. – 3:30 p.m. Plenary Session [Gallery II]

Full group will reconvene to discuss break-out session results

3:30 p.m. – 4 p.m. Closing [Gallery II]

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LIST OF INVITEES

The following individuals have confirmed their attendance at the Forum

Governor Ted Strickland Honorable Evelyn Lundberg Stratton Honorable Robert Cupp Honorable Paul Pfeifer Honorable Maureen O’Connor Attorney General Richard Cordray President Bill Harris, Ohio Senate Speaker Armond Budish, Ohio House of Representatives Representative Bill Batchelder, Ohio House of Representatives Senator Tom Niehaus, Ohio Senate Representative Mark Okey Senator Eric Kearney, Ohio Senate Senator Bill Seitz, Ohio Senate Senator Tim Grendell, Ohio Senate Honorable Peggy Bryant John Gotherman, Ohio Municipal League Kevin DeWine, Chairman, Ohio Republican Party Frank Deaner, Ohio Newspaper Association Judge Sheila Farmer Andrew Doehrel, Ohio Chamber of Commerce Jack Fisher, Ohio Farm Bureau Meg Flack, Ohio League of Women Voters George Lawrence Forbes, NAACP Connie Wehrkamp, NFIB Lisa House, President, Ohio Women Lawyers Bar Association Barbara Howard, President, Ohio State Bar Association Les Jacobs, Thompson Hine LLP Tawana Lynn Keels, Ohio School Boards Association James Lowe, American Board of Trial Advocates, Ohio Chapter Gretchen Koehler Mote, Ohio Association of Civil Trial Attorneys Kent Markus, Chief Legal Counsel, Office of Governor Strickland Marc Merklin, Metropolitan Bar Association Consortium David Owsiany, Ohio Dental Association Thomas Cochrane, OCSEA Amy Mignongna, Ohio Society of CPAs

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Marin Frantz, Ohio Prosecuting Attorneys Association Anthony Sharett, John Mercer Langston Bar Association Andrew Stevenson, Ohio Association of Criminal Defense Lawyers Richard Stoff, Ohio Business Roundtable Darold Johnson, Ohio Federation of Teachers Dr. Roy Thomas, Ohio State Medical Association Michael Thompson, Thurgood Marshall Society Organizations Catherine Turcer, Ohio Citizen Action Bill Woods, Common Cause

The following individuals have been invited to participate in the Forum

Joe Rugola AFL-CIO Gerald McEntee AFSCME Susan Blasik-Miller American Board of Trial Advocates - Ohio Oliver Henkel Cleveland Clinic Eddie Harrell Columbus Urban League Kerry Metzger County Commissioners Association Richard Pogue Jones Day Stephen Rassmussen Nationwide Insurance Eddie Parks OCSEA John Wharff Ohio Association of Broadcasters Jonathan Hall Ohio Association of Realtors Jerry Jurgensen Ohio Business Roundtable Judge James Flannery Ohio Common Pleas Judges Association Chris Redfern Ohio Democratic Party Patricia Frost-Brooks Ohio Education Association Michal Stephens Ohio Hospital Association Dan Kelso Ohio Insurance Institute Eric Burkland Ohio Manufacturer’s Association Robert McDonald Procter & Gamble Steve Jenkins Procter & Gamble Becky Williams SEIU Justice Judith Lanzinger Supreme Court of Ohio Justice Terrence O’Donnell Supreme Court of Ohio

The following organizations have been asked to send a representative to observe the Forum.

Akron Bar Association Alliance for Democracy American Association of University Women Association of Municipal/County Court Judges of Ohio Board of Commissioners on Grievances and Discipline BREAD

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Brennan Center for Justice Capital University Law School Case Western School of Law Cincinnati Bar Association Cincinnati Insurance Companies Cleveland Metropolitan Bar Association Cleveland-Marshall College of Law Client Security Fund Columbus Bar Association Dayton Bar Association Eastland Business Association Federal Bar Association Georgetown University Law Center Graydon, Herd, Ritchey LLP Green Party of Ohio Justice at Stake Campaign Kettering Foundation League of Women Voters Ohio Education Fund Moritz College of Law National Bar Association National Center for State Courts NE Ohio American Friends Service Committee Office of Criminal Justice Services Office of Disciplinary Counsel Ohio AFL-CIO Ohio Association for Court Administration Ohio Association of Broadcasters Ohio Association of Magistrates Ohio Association of Municipal and County Court Clerks Ohio Association of Realtors Ohio Center for Law Related Education Ohio Citizen Action Ohio Clerks of Court Association Ohio Council of Retail Merchants Ohio County Commissioners Association Ohio Elections Commission Ohio Ethics Commission Ohio House of Representatives Ohio National Organization for Women Ohio Newspaper Association Ohio Northern – Petit College of Law Ohio Public Defender Commission Ohio Public Interest Research Group Ohio Senate

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Ohio State Bar Association Ohio State Bar Foundation Ohio State Medical Association Ohio Women, Inc. Pierce Communications Salmon P. Chase College of Law The Constitution Project The Joyce Foundation The Ohio State University Toledo Bar Association University of Akron Law School

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National & Ohio Polls Consistently Show Wide Margin Who Believe Campaign Contributions Influence Judges

The Forum on Judicial Selection has researched public opinion polls for the past decade and identified a consistent pattern of citizens indicating that at least to some degree they believe judicial campaign contributions have an impact on judicial decision making. Following is a synopsis of some of the major polls. More complete results are available for download at the Forum’s Web site: www.judicialselection.net or at the links listed below.

2008 national poll finds 79 percent of respondents believe judges should not be allowed to accept money from “special interests.” Sponsor: American Bar Association Conducted By: Harris Poll Questions Methodology: Harris Interactive® conducted the study online within the United States between September 15 and 22, 2008 among 2,315 adults. Figures for age, sex, race/ethnicity, education, region and household income were weighted where necessary to bring them into line with their actual proportions in the online population. Propensity score weighting was also used to adjust for respondents’ propensity to be online. Details: Respondents in states where judges are elected were asked “Which statement is closer to your opinion? Since judges are expected to be impartial on so many potential issues facing them, they should not be allowed to accept money from any special interests. (79 percent said yes). Judges are no different from any other elected official and should be allowed to accept money from any entity as long as the state election laws are upheld. (8 percent answered yes).” 13 percent answered “not at all sure.” Complete Results: http://www.abanet.org/media/harrispoll_judicialselection.pdf

2007 national survey finds nearly 70 percent of adults believe that judicial campaign fundraising affects judges’ decisions. Sponsor: Annenberg Foundation Trust at Sunnylands Conducted By: Princeton Survey Research Associates International Methodology: Telephone survey of 1,514 adults age 18 and older between Aug. 8 and Sept. 2, 2007. Margin of error of +/-3 percent based on full sample. Details: 69 percent think that raising money for elections affects a judge’s rulings to a moderate or great extent, virtually unchanged from the 2006 response. 75 percent indicated they believe state judges’ rulings are influenced by judges’ politics to a great or moderate degree. Those living in states where judges are elected in partisan elections were more likely to believe that courts are

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not just interpreting the law but “legislating from the bench” and were less likely to believe that the courts in their state are fair and impartial. Complete Results: http://www.annenbergpublicpolicycenter.org/Downloads/20071017_JudicialSurvey/Judicial_Find ings_10-17-2007.pdf.

2004 national survey finds nearly 75 percent of adults believe donors to judges' campaigns get special treatment in court. Sponsor: The Justice at Stake Campaign Conducted By: Zogby International Methodology: Telephone survey of 1,204 adult Americans conducted March 17-19, 2004, margin of error +/- 2.9 percentage points (higher in sub-groups). Details: A strong majority of Americans – nearly 71 percent – believe that campaign contributions from interest groups have at least some influence on judges’ decisions in the courtroom. Over 80 percent of African Americans expressed this view, including a majority (51 percent) who said contributions carried a “great deal” of influence. Complete Summary of Results: http://www.judicialselection.net/resources/

2003 New York Poll finds 83 percent of voters believe having to raise money for election campaigns influences the decisions made by judges. Sponsor: Commission to Promote Public Confidence in Judicial Elections Conducted By: Marist Institute for Public Opinion Methodology: Telephone survey of 1,003 New York State registered voters from Oct. 8 – Oct. 20, 2003. Sampling error is +/- 3 percent. Error margin increases for cross-tabulation. Details: Registered voters overwhelmingly agree that judges should not be permitted to hear cases involving campaign contributors. Political party leaders top the list of those who registered voters believe have at least some influence over who becomes a judge. Nine out of ten registered voters believe that it is important for a judge to be independent from political party leaders and campaign contributors. 68 percent of registered voters in New York State believe the justice system would be improved if judicial candidates would agree not to raise money and limit spending to publicly financed funds. 65 percent of registered voters believe disclosing campaign contributions to the public immediately would have a positive effect on judicial elections. Complete Results: http://www.courts.state.ny.us/reports/Feerick_AppendixB.pdf

2002 Illinois poll finds 85 percent of voters believe campaign contributions influence judges. Sponsor: Illinois Campaign for Political Reform Conducted By: Survey Research Office, Institute for Public Affairs, University of Illinois at Springfield Methodology: Telephone survey of registered Illinois voters between Jan. 7 and Feb. 3, 2002, with a margin of error of +/- 3.4 percent. Details: More than 85 percent believed campaign contributions influence judicial decisions. Three out of four voters favored limits on campaign contributions to judicial candidates, and over 60 percent supported a voluntary system of public financing of judicial campaigns. 78 percent

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reported not having enough information about judicial candidates. Nearly 70 percent preferred nonpartisan elections to partisan elections. Complete Results: http://www.ilcampaign.org/

2002 North Carolina Poll shows 78 percent have concerns about campaign contributions influencing judges. Sponsor: North Carolina Center for Voter Education Conducted By: American Viewpoint Inc. Methodology: Interviews were conducted via telephone with 600 likely North Carolina voters April 29 through May 2, 2002. The margin of error for the entire sample is +/- 4.0percent at the 95percent confidence level. The margin of error among sub-groups is greater. Details: Eighty four percent (84 percent) of voters are concerned that lawyers are some of the biggest campaign contributors to judicial candidates, often appearing in court before judges they’ve given money to (64 percent are concerned a lot). 78 percent feel campaign contributions to judges have some (40 percent) or a great deal (38 percent) of influence over decisions. Black voters are even more skeptical, with 50 percent feeling contributions influence decisions a great deal. Complete Summary: http://ncvotered.com/downloads/polling/5_9_02_report.pdf

2002 Ohio poll finds 83 percent believe campaign contributions influence judges. Sponsor: League of Women Voters Conducted By: Opinion Strategies Inc. Methodology: Telephone survey of more than 500 registered Ohio voters in October 2002. Margin of error +/- 3-4 percent, confidence level .95. Details: 49 percent of voters believed that campaign contributions influence judges and judicial candidates to a great extent, and 34 percent believed that campaign contributions influenced judges and judicial candidates to some extent. 23 percent strongly agreed and 41 percent agreed that significant reform of the current judicial campaign finance system is required. 49 percent strongly agreed and 40 percent agreed that every source of financial support for judicial candidates should be fully disclosed. Complete results: www.judicialselection.net

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THE AMOUNT OF MONEY SPENT IN OHIO AND OTHER STATES ON SUPREME COURT CASES

(Source: American Judicature Society) OHIO Campaign Financing The cost of judicial races in Ohio has increased dramatically in recent years. In 1980, candidates for the chief justice position spent $100,000; six years later, they spent $2.7 million. A 1994 poll commissioned by Chief Justice Moyer's citizens committee on judicial elections revealed that nine out of ten Ohioans believed that judicial decisions were affected by political contributions. 56% of respondents favored spending limits, 45% supported contribution limits, 45% advocated more reporting requirements, and 9% wanted public financing. In 1995, based on the recommendations of the citizens committee on judicial elections, the Ohio Supreme Court imposed both contribution and spending limits for judicial elections. As of 2009, limits on contributions from individuals are set at $3,450 for supreme court candidates; $1,150 for court of appeals candidates; and $575 for candidates for the court of common pleas, municipal court, and county court. PAC contribution limits are set at $6,325 for supreme court candidates and $3,450 for candidates for other courts. Limits are the same for both the primary and general elections. However, if a primary is uncontested, the general election limits apply throughout the fundraising period. Overall spending limits were set at $500,000 for chief justice candidates, $350,000 for associate justice candidates, $100,000 for court of appeals candidates, $75,000 for candidates for the court of common pleas, and $50,000 for municipal and county court candidates. The constitutionality of these spending limits was challenged by two Ohio judges in Suster v. Marshall. Amicus curiae briefs in support of the limits were filed by the National Voting Rights Institute, the Ohio State Bar Association, and the Brennan Center for Justice, while the ACLU of Ohio opposed the limits. The U.S. District Court for the Northern District of Ohio ruled that the spending limits violated the First Amendment, 951 F.Supp. 693 (N.D.Oh. 1996), and the U.S. Court of Appeals for the Sixth Circuit affirmed, 149 F.3d 523 (1998). In January 2001, the spending limits were repealed to conform to the court ruling. A number of organizations track campaign contributions to Ohio Supreme Court justices, including Ohio Citizen Action, the American Friends Service Committee of Northeast Ohio, and the National Institute on Money in State Politics. In 2008, the Midwest Democracy Network and the Justice at Stake Campaign released a report on recent judicial elections in five Midwestern states, including Ohio. To view “The New Politics of Judicial Elections in the Great Lakes States, 2000-2008,” please go to http://www.mcfn.org/pdfs/reports/NPJE_GreatLakes_2000-2008.FINAL.pdf

ALABAMA Campaign Financing The issue that has come to define politics of judicial selection in Alabama is tort reform. In the early 1980s, Alabama juries began awarding punitive damages that were substantially larger than those seen in most other states, earning Alabama the moniker "Tort Hell." In 1987, the legislature passed a broad tort- reform package, most of the major provisions of which were subsequently struck down by the Alabama Supreme Court. Contests for seats on the supreme court became a battle between those who supported

12 and opposed tort reform. In recent years, the primary source of campaign funds for supreme court candidates has been PACs associated with the Alabama Trial Lawyers Association and the Business Council of Alabama. One study reports a strong correlation between campaign contributions and judicial decisions in arbitration law cases before the Alabama Supreme Court. Based on an examination of decisions from 1995 to 1999, the author of the study concluded that justices whose campaigns are funded by plaintiffs' lawyers tend to oppose arbitration, while justices whose campaigns are funded by business favor arbitration. See "Money, Politics and Judicial Decisions: A Case Study of Arbitration Law in Alabama," Stephen J. Ware, 25 Journal of Law and Politics 645, 2001. Another study of the 1995 to 1999 period conducted by the National Institute on Money in State Politics found that 63% of the Alabama Supreme Court's cases during that time involved parties or attorneys who had contributed to a winning supreme court candidate before their cases were decided. However, contributors fared only slightly better than non-contributors, and parties and attorneys appearing before the court accounted for only 9% of the $18.4 million raised by candidates during that time. As in several other states, the cost of judicial campaigns has skyrocketed in Alabama in recent years. Since 1993, candidates for seats on Alabama's supreme court have raised $54 million. The 2006 elections saw the most expensive judicial race in state history and the second most expensive in U.S. history, with candidates for the chief justiceship raising $8.2 million. Other than a $500 limit on contributions from corporations, Alabama imposes no limits on campaign contributions.

MICHIGAN Campaign Financing Individual and political PAC contributions to supreme court and court of appeals candidates and to circuit court candidates in larger circuits are limited to $3,400 per candidate per election cycle. Individual and political PAC contributions to circuit court candidates in smaller circuits are limited to $1,000 or $500 per candidate per election cycle, based on the size of the circuit. Candidates' campaign committees are prohibited from soliciting contributions greater than $100 from lawyers. In the 2000 elections, a total of $13 million to $15 million was spent by supreme court candidates, the Republican and Democratic Parties, and outside interest groups. The 2000 contests were the most expensive and contentious in the state's history. According to a report by the Michigan Campaign Finance Network, the size of supreme court candidates' campaign chests more than quadrupled between 1994 and 2000, from an average of $322,000 in 1994 per candidate to $1.14 million in 2000. At least 84% of these funds came from the political parties and from business, attorney, and labor groups. The study also reported that campaign contributors frequently appeared before the court; between 1990 and 1999, 86% of the supreme court's cases involved litigants or lawyers who had made a campaign contribution to one or more of the justices. The report is entitled "Special Interests v. Public Values: Funding Michigan Supreme Court Campaigns, 1994-2000." The National Institute on Money in State Politics also tracks contributions to judicial candidates in Michigan. In 2008, the Midwest Democracy Network and the Justice at Stake Campaign released a report on recent judicial elections in five Midwestern states, including Michigan. To view “The New Politics of Judicial Elections in the Great Lakes States, 2000-2008,” please visit http://www.mcfn.org/pdfs/reports/NPJE_GreatLakes_2000-2008.FINAL.pdf

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MISSISSIPPI Campaign Financing Prior to 1999, there were no limits on the amounts that individuals and PACs could contribute to judicial candidates. Legislation passed in 1999 limited individual and PAC contributions to candidates for the supreme court and court of appeals to $5,000 and limited contributions to candidates for all other courts to $2,500. Contributions from corporations are capped at $1,000. The 1999 legislation also mandated more extensive disclosure of campaign contributions and expenditures. The campaign finance regulations enacted in 1999 have had little impact on money in judicial races. In 2000, nine candidates for four seats raised nearly $3.4 million. The 2002 election saw the most expensive campaign in the state’s history for a single seat on the Mississippi Supreme Court, with three candidates raising nearly $1.7 million. In addition, the 1999 legislation could not curb independent spending by special interest groups. In 2000, the U.S. Chamber of Commerce spent nearly $1 million on television advertising favoring four Mississippi Supreme Court candidates. Expenditures by trial lawyer groups brought the total in “soft” money in the 2000 judicial elections to an estimated $1.5 million. In the 2002 elections, the Chamber itself did not sponsor any advertisements, but some commentators speculate that it financed the more than $500,000 worth of television ads presented by a group called the Law Enforcement Alliance of America. Nine other groups also ran ads in 2002, most of them devoted to tort reform advocacy or opposition. In 2000, a dispute arose over whether the Chamber of Commerce was required to file reports on how much it spent and who its contributors were. According to the Chamber, its expenditures were for issue advocacy rather than in support of particular candidates. A federal district court disagreed, but the court of appeals ruled that the Chamber did not need to file disclosure statements. Chamber of Commerce of U.S. v. Moore, 288 F.3d 187 (5th Cir. 2002). The U.S. Supreme Court declined to review the decision. In 2002, the supreme court amended the code of judicial conduct to allow a party to file a motion to recuse a judge when an opposing party or attorney is a “major donor” to the judge’s election campaign. A “major donor” is defined as someone who, in the judge’s most recent election campaign, contributed more than $2,000 in the case of appellate judges or more than $1,000 for other judges.

PENNSYLVANIA Campaign Financing There are no limits on campaign contributions from individuals and PACs. However, contributions from corporations, labor unions, and regulated industries are prohibited. According to a study of the financing of Pennsylvania Supreme Court elections from 1979 to 1997, slightly more than $17 million was contributed to the thirty-five competitive supreme court candidates. The legal profession, including the plaintiff's bar and large defense-oriented law firms, accounted for more than half of this amount. The remainder came primarily from pro-business individuals and PACs. See James Eisenstein, "Financing Pennsylvania's Supreme Court Candidates," 84 Judicature 10 (2000). Another study conducted by the National Institute on Money in State Politics showed that contributions to the thirty candidates for supreme court seats between 1989 and 1999 totaled $13 million. Five of the candidates in contested races raised more than $1 million each. Slightly more than one fourth of the cases heard by the supreme court during this period involved campaign contributors. In the 2001 elections, fourteen candidates for appellate seats raised approximately $2.7 million, more than half of which came from attorneys. In a race for a seat on the supreme court, the two candidates reported campaign chests of more than $1 million each. These amounts did not include substantial expenditures by third parties such as the Law Enforcement Alliance of America (LEAA). LEAA, a Virginia-based group, spent between $300,000 and $600,000 on television advertisements touting one candidate and portraying the other as being soft on crime. The ads were suspended by a local judge after the LEAA declined to

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comply with the state's financial disclosure requirements. The order was later upheld by the Pennsylvania Supreme Court. The outcome of the 2001 race shifted the composition of the supreme court from a 4-3 Democratic majority to a 4-3 Republican-dominated court. In 2007, four candidates for two open seats on the Pennsylvania Supreme Court spent $7.85 million, shattering previous records for judicial elections in the state.

TEXAS Campaign Financing Between 1980 and 1986, campaign contributions to candidates in contested appellate court races increased by 250%. During the same period, there was a 450% increase in the number of contributions in excess of $5,000 to candidates in contested appellate court races. The 1988 supreme court elections were the most expensive in Texas history, with twelve candidates for six seats raising $12 million. Between 1992 and 1997, the seven winning candidates for the Texas Supreme Court raised nearly $9.2 million dollars. Of this $9.2 million, more than 40% was contributed by parties or lawyers with cases before the court or by contributors linked to those parties. The perceived impropriety of judges soliciting and accepting large campaign contributions from attorneys and parties who appear before them has been the subject of numerous newspaper and magazine articles, as well as television broadcasts. In 1987 and again in 1998, 60 Minutes aired segments that examined whether justice was for sale in Texas, and Frontline explored the same question in 1999. In the early 1980s, plaintiff lawyers were the largest contributors to Texas judicial candidates, but in the late 1980s and 1990s, they were replaced by civil defense attorneys, doctors, insurance companies, and other business interests. In recent years, major contributors to judicial candidates have included the Texas Association of Business and Chambers of Commerce, the Texas Trial Lawyers Association, the Texas Medical Association, Texans for Lawsuit Reform, the insurance industry, energy and natural resources companies, and the Republican and Democratic Parties. Texans for Public Justice, a legal watchdog group founded in 1997, tracks campaign contributions to public officials in Texas, including appellate judges, and has issued a number of reports that examine the relationship between campaign contributions to judges and judicial decisions. Their most recent report, Courtroom Contributions Stain Supreme Court Campaigns, reveals that supreme court candidates receive two thirds of their campaign contributions from lawyers and litigants who appear before them. Other reports include Checks and Imbalances, Payola Justice, and Lowering the Bar. In 1995, the Judicial Campaign Fairness Act was passed to regulate financing of judicial elections. Under the JCFA:

• Individual contributions to candidates for the supreme court and court of criminal appeals are limited to $5,000. Individual contributions to all other judicial candidates are limited to between $1,000 and $5,000, depending on the population of the judicial district.

• Contributions from law firms and members of law firms are limited to $50 if the aggregate contributions from the firm and its members exceed six times the maximum individual contribution for that judicial office.

• Candidates for the supreme court and court of criminal appeals may accept up to $300,000 in total contributions from PACs. Court of appeals candidates are limited to between $52,500 and $75,000 in total PAC contributions, depending on the population of the judicial district. Total PAC contributions to all other judicial candidates are limited to between $15,000 and $52,500, depending on the population of the judicial district.

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• Voluntary expenditure limits are established. Candidates must file a sworn declaration of their intent to either voluntarily comply with or exceed these limits. If a candidate who complies with the expenditure limits is opposed by a candidate who does not comply, the complying candidate is no longer bound by either contribution or expenditure limits. Expenditures by candidates for the supreme court and court of criminal appeals are limited to $2 million. Expenditures by court of appeals candidates are limited to between $350,000 and $500,000, depending on the population of the judicial district. Expenditures by all other judicial candidates are limited to between $100,000 and $350,000, depending on the population of the judicial district.

• Contributions to and expenditures by committees formed to support a judicial candidate, oppose the candidate's opponent, or assist the candidate as an officeholder are considered contributions to and expenditures by the candidate. Contributions to and direct expenditures on behalf of complying candidates from a political party are considered expenditures by the candidate.

• Contribution limits are per candidate, per election. However, the primary election and the general election are considered to be a single election if the candidate is unopposed in the primary or if the candidate does not have an opponent on the ballot in the general election. The various contribution limits for that "single election" are increased by 25 percent, but the amount of the increase may only be used for officeholder expenditures.

For more information about the Judicial Campaign Fairness Act, see Judicial Selection Reform: Examples from Six States at http://www.judicialselection.us/uploads/Documents/jsreform_1185395742450.pdf

For more information about the costs of supreme court races in other states, visit the American Judicature Society Web site at: http://www.judicialselection.us/judicial_selection/campaigns_and_elections/campaign_financing.cfm?stat e

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THE NEW POLITICS OFJUDICIAL ELECTIONS in the Great Lakes States, 2000–2008 (source: Justice at Stake)

Executive Summary This special report shows how five Midwestern states—Illinois, Michigan, Minnesota, Ohio and Wisconsin—have become caught up in America’s “New Politics of Judicial Elections.” Between 2000 and April of 2008, four of these states have become national symbols of rising special interest pressure on state Supreme Courts, along with serious attempts at reform.

Attorneys, business interests, ideological groups and political partisans have locked themselves into an escalating arms race. Judges and justices routinely raise millions of dollars from contributors whose cases they decide. Campaign ads are designed to destroy confidence in the integrity of the candidates. Above all, special interests are working to convert judicial elections into a tool of political intimidation rather than public accountability.

This report details how these recent trends are turning the “Great Lakes” states into leading battlefields in the growing national struggle for the courts.

• Of the 22 states nationally that use contestable elections to choose members of their high courts, three of the six most expensive can be found in the Midwest (Illinois, Ohio and Michigan).

• More than half of all television advertisements that have appeared in state Supreme Court races since 2000 have aired in one of those three states.

• Voters in Ohio have been saturated with more than $20 million in such ads, ranking the state first in the nation by a wide margin.

• The most expensive contested judicial election in American history took place in 2004 in Illinois, when two candidates combined to raise over $9.3 million.

• In Michigan, rumors are swirling about a possible $20 million campaign—but the real cost will probably never be known because of weak disclosure laws and the absence of a state electioneering communications law.

• At the time of this report’s publication, Wisconsin has just endured its second high court bloodbath in the last twelve months, with an estimated $6.6 million spent on television advertising since March 2007.

These trends were fueled by the June 2002 U.S. Supreme Court decision in Republican Party of Minnesota v. White, which changed the rules for judicial elections in America. By a 5-4 vote, the Court struck down Minnesota’s “Announce Clause,” which prohibited a candidate for judicial office from “announc[ing] his or her views on disputed legal and political issues.” The fairness and impartiality of our courts is stake. But the news is not all bad. Political and civic leaders have begun pursuing reforms designed to insulate courts from special interest pressure. In Illinois and Wisconsin, the state’s senate has passed proposals to publicly finance judicial elections. In Minnesota, an esteemed collaborative of legal and civic leaders recently proposed to overhaul how the state chooses its judges.

Leading the charge for reforms is the Midwest Democracy Network (midwestdemocracynetwork.org), an alliance of civic reform groups committed to strengthening democratic institutions in the Midwest. The

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Network includes state-based civic and public interest organizations as well as prominent academic institutions and respected policy and legal experts. This report is designed to help reporters, reformers and citizens understand why impartial justice is in danger in the Midwest—and what can be done.

To view the entire report, visit: http://www.gavelgrab.org/wp-content/resources/NPJEGreatLakes2000- 2008.FINAL.pdf

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HOW SUPREME COURT JUSTICES ARE CHOSEN (source: American Judicature Society)

16 appointive-elective selection states 5 gubernatorial or legislative appointment states 7 partisan election states 14 nonpartisan election states 9 states with some form of appointive-elective or other selection process

Alabama Supreme Court: 9 justices running statewide in partisan elections for 6 year terms. Retention is by reelection for another 6 year term

Alaska Supreme Court: 5 justices from gubernatorial appointment from nominating commission for 3 year terms with retention election for 10 year terms

Arizona Supreme Court: 5 justices from gubernatorial appointment from nominating commission for 2 year terms with retention election for 6 year terms

Arkansas Supreme Court: 7 justices running statewide in nonpartisan elections for 8 year terms. Retention is by reelection for 8 year terms

California Supreme Court: gubernatorial appointment with confirmation by commission on judicial appointments for 12 year terms. Retention election for additional 12 year terms

Colorado Supreme Court: 7 justices serving by gubernatorial appointment from nominating commission for 2 year terms. Retention election for 10 year terms

Connecticut Supreme Court: 7 justices serving by gubernatorial nomination from judicial selection commission; legislative appointment for 8 year terms. Retention governor renominates; legislature reappoints for additional 8 year terms

Delaware Supreme Court: 5 justices serving by gubernatorial appointment from judicial nominating commission with senate consent for 12 year terms. Retention by

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gubernatorial reappointment from judicial nominating commission with senate consent for additional 12 year terms

District of Columbia Court of Appeals: 9 justices serve by presidential appointment from judicial nomination commission, with senate confirmation for 15 year terms. Retention is by reappointment for additional 15 year terms

Florida Supreme Court: 7 justices serve by gubernatorial appointment from nominating commission for one year term. Retention by election for 6 year terms

Georgia Supreme Court: 7 justices running statewide in nonpartisan elections for 6 year terms. Retention by reelection for additional 6 year terms

Hawaii Supreme Court: 5 justices serving by gubernatorial appointment from nominating commission with senate confirmation for 10 year terms. Nominating commission retains for additional 10 year terms

Idaho Supreme Court: 5 justices running in statewide nonpartisan elections for 6 year terms. Retention by election for additional 6 year terms

Illinois Supreme Court: 7 justices running in partisan election for 10 year terms. Retention by election for additional 10 year terms

Indiana Supreme Court: 5 justices serving by gubernatorial appointment from nominating commission for 2 year terms. Retention by election for 10 year terms

Iowa Supreme Court: 7 justices serving by gubernatorial appointment through nominating commission for 1 year terms. Retention by election for 8 year terms

Kansas Supreme Court: 7 justices serve by gubernatorial appointment from nominating commission for one year terms. Retention is by election for 6 year terms

Kentucky Supreme Court: 7 justices selected in nonpartisan elections for 8 year terms. Retention is by election for additional 8 year terms

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Louisiana Supreme Court: 7 justices running in partisan elections for 12 year terms. Retention is by election for 12 year terms

Maine Supreme Judicial 7 justices serving by gubernatorial appointment with senate confirmation for Court: 7 year terms. Retention is by gubernatorial reappointment with senate confirmation for 7 year terms

Maryland Court of Appeals: 7 justices serving by gubernatorial appointment from nominating commission with senate confirmation for one year terms. Retention is by election for 10 year terms

Massachusetts Supreme Judicial 7 justices serving by gubernatorial appointment with approval of governor's Court: council to age 70. No retention process.

Michigan Supreme Court: 7 justices selected by partisan nomination/nonpartisan election for 8 year terms. Retention is by election for 8 year terms

Minnesota Supreme Court: 7 justices running in statewide nonpartisan elections for 6 year terms. Retention is by election for 6 year terms

Mississippi Supreme Court: 9 justices running in nonpartisan elections for 8 year terms. Retention is by election for 8 year terms

Missouri Supreme Court: 7 justices serving by gubernatorial appointment from nominating commission for 1-3 year terms. Retention is by election for 12 year terms

Montana Supreme Court: 7 justices selected by nonpartisan elections for 8 year terms. Retention is by election for 8 year terms

Nebraska Supreme Court: 7 justices serving by gubernatorial appointment from nominating commission for 3 year terms. Retention is by election for 6 year terms

Nevada Supreme Court: 7 justices running statewide in nonpartisan elections for 6 year terms. Retention is by election for 6 year terms

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New Hampshire Supreme Court: 5 justices serving by gubernatorial nomination from selection commission recommendation to age 70. No retention process.

New Jersey Supreme Court: 7 justices serving by gubernatorial appointment with senate confirmation for 7 year terms. Retention is by gubernatorial appointment with senate confirmation to age 70

New Mexico Supreme Court: 5 justices selected in statewide partisan elections for 8 year terms. Retention is by election for 8 year terms

New York Court of Appeals: 7 justices serving by gubernatorial appointment from nominating commission with senate consent for 14 years. Retention is by gubernatorial appointment from nominating commission with senate consent for 14 year terms

North Carolina Supreme Court: 7 justices selected by statewide nonpartisan elections for 8 year terms. Retention is by election for 8 year terms

North Dakota Supreme Court: 5 justices selected by statewide nonpartisan elections for 10 year terms. Retention is by election for 10 year terms

Ohio Supreme Court: 7 justices selected by partisan primaries, nonpartisan election for 6 year terms. Retention is by election for 6 years

Oklahoma Supreme Court: 9 justices selected by gubernatorial appointment through nominating commission for 1 year terms. Retention is by election for 6 year terms

Oregon Supreme Court: 7 justices running in statewide nonpartisan elections for 6 year terms. Retention is by election for 6 year terms

Pennsylvania Supreme Court: 7 justices running in statewide partisan elections for 10 year terms. Retention is by election for 10 year terms

Rhode Island Supreme Court: 5 justices serving by gubernatorial appointment from nominating commission with house and senate confirmation for life. No retention process

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South Carolina Supreme Court: 5 justices serving by legislative election for 10 year terms. Retention is by legislative election for 10 year terms

South Dakota Supreme Court: 5 justices serving by gubernatorial appointment from nominating commission for 3 years. Retention by election for 8 year terms

Tennessee 5 justices selected by gubernatorial appointment from nominating commission to serve until the next election. Retention is by election for 8 Supreme Court: year terms

Texas Supreme Court: 9 justices selected by statewide partisan elections for 6 year terms. Retention is by election for 6 year terms

Utah Supreme Court: 5 justices selected by gubernatorial appointment from nominating commission with senate confirmation for 3 year terms. Retention is by election for 10 year terms

Vermont Supreme Court: 5 justices selected by gubernatorial appointment from nominating commission with senate confirmation for 6 year terms. Retention is by vote of the general assembly for 6 year terms

Virginia Supreme Court: 7 justices selected by legislative election for 12 year terms. Retention is by reelection by the legislature for 12 year terms

Washington Supreme Court: 9 justices selected in statewide nonpartisan elections for 6 year terms. Retention is by election for 6 year terms

West Virginia Supreme Court of 5 justices selected in statewide partisan elections for 12 year terms. Retention Appeals: is by election for 12 year terms

Wisconsin Supreme Court: 7 justices selected in statewide nonpartisan elections for 10 year terms. Retention is by election for 10 year terms

Wyoming Supreme Court: 5 justices selected by gubernatorial appointment from nominating commission for 1 year terms. Retention is by election for 8 year terms

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For more detailed information on this topic, please visit: http://www.judicialselection.us/judicial_selection/methods/selection_of_judges.cfm?state

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The Options

States employ a wide variety of methods for selecting supreme court justices. While no two states use identical systems, the various methods can be identified as falling within two broad categories: elected or appointed. Even those categorizations are not clear cut, as many states with elections (Ohio included) also employ some type of appointment process to fill mid-term judicial vacancies.

Thirty-three states and the District of Columbia use nominating commissions, typically non-partisan committees consisting of lawyers and non-lawyers who review applications, interview candidates and make recommendations to the appointing authority, most likely the governor. Ohio Governor Ted Strickland employs a nominating commission created by executive order.

In 1940 Missouri adopted a system that incorporates a nominating commission while also providing citizens an opportunity to vote on whether to retain judges after serving in office for a set number of years. Under the so-called Missouri Plan, judges appear on the ballot without party affiliation in uncontested elections and must garner a majority of votes to remain on the bench.

To provide voters information about the performance of judges who appear on the ballot, the Missouri Plan employs performance evaluation committees which evaluate candidates based on judicial performance standards and surveys of lawyers and jurors with personal knowledge of the judges.

What follows are articles with additional information about these various programs and methods.

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MODEL JUDICIAL SELECTION PROVISIONS (Source: American Judicature Society) Revised 2008 Model Judicial Selection Provisions

ESTABLISHING A COMMISSION PLAN FOR APPOINTMENT TO OFFICE Commentary These provisions provide for the establishment of a merit selection process by constitution or statute. In several jurisdictions, merit plans have been established by executive order, but the stability of a constitutional or statutory system is preferable.

Section ___. Commission-Based Appointment to Judicial Office Section ___.01. Nomination and Appointment. The governor shall fill any vacancy in an office of _____ court justice or _____ court judge by appointing one person nominated by the judicial nominating commission [for the district/circuit where the vacancy occurs]. The judicial nominating commission shall nominate no more than five nor less than two best qualified persons for each vacancy. If the governor fails to fill a vacancy within 30 days from the day the names are submitted, the [chief justice] [presiding judge for that district/circuit] shall appoint one of the nominated persons. Commentary Each judicial vacancy should be treated individually to the greatest extent possible. If the positions to be filled require specialized knowledge and legal experience (i.e. family law, juvenile matters), individual consideration of applicants for each vacancy becomes even more important. Although the number of names submitted to the governor need not be capped at five, the number should be sufficiently low that the commission nominates only the best qualified candidates. Five names appears to be an appropriate maximum because it gives, and limits the governor to, the best qualified candidates. Commissions in less populated areas may have difficulty finding five best qualified nominees and should therefore be allowed the flexibility to submit fewer names. In most states, the names submitted to the governor are listed in alphabetical order to avoid any indication of a commission’s preference. Thirty days is allowed as a reasonable amount of time for the governor to conduct an investigation of the nominees. In the event that the governor fails to act within that reasonable time period, a judicial officer may appoint from the commission’s list. This provision ensures that the final appointment will be made within a reasonable time and from the list of nominees. This separation of functions allows for independent and nonpartisan evaluations and nominations by a responsible commission and final appointment by a governor who is politically accountable. If necessary, Section __.01 may be adapted to allow for filling midterm vacancies. For information on how merit-plan jurisdictions deal with these variables, see Tables 2 and 3, Judicial Merit Selection: Current Status (AJS: 2008), at http://www.judicialselection.us/judicial_selection_materials/. For example, only five states permit as many as six or seven nominees; the great majority require between two and five names. The majority of merit-plan states specify that the list be submitted in alphabetical order.

Section ___.02. Judicial Nominating Commission. [The] [Each] judicial nominating commission shall consist of seven members. Four attorney members shall be selected for six-year terms by the bar of the [state] [judicial 26 district/circuit], except as provided by Section __.03. Three lay members shall be appointed [from among the residents of the district/circuit] for six-year terms, except as provided in Section __.03, by the governor. [The] [Each] commission shall choose one of its members to serve as chair for a term of three years. Appointments and elections to the commission[s] shall be made with due consideration to geographic representation and to ensure that no more than a simple majority of commissioners are of the same political party. All appointing authorities shall make reasonable efforts to ensure that the commission substantially reflects the diversity of the jurisdiction (e.g., racial, ethnic, gender, and other diversity). Vacancies shall be filled for an unexpired term in like manner. No member of [the] [a] nominating commission may hold any other office under the United States, the State, or other governmental entity for which monetary compensation is received. No member shall be eligible for appointment to a state judicial office so long as he or she is a commission member and for [four] [three] years thereafter. Commentary In a democratic society it is important that public bodies such as judicial nominating commissions are broadly representative of the communities they serve. Care should be taken to ensure that the composition of the commission is reflective of the geographic and demographic makeup of the state or district and that neither political party has more than a simple majority of commission members. A balanced commission will include attorneys who can advise on the needs of the court and the professional qualifications of applicants. Lay members represent the public and have useful links to the community when screening and investigating applicants, and their non-legal perspective lends the process credibility and legitimacy in the eyes of the public. For these reasons, some jurisdictions have opted for a majority of lay members on the commission. If a judge is a commission member, s/he should have limited power so as to avoid exercising undue influence over other commission members. A method for selecting the attorney members is not specified here since bar organizations vary significantly from state to state. Many states hold elections to select the attorney members, while in other states bar leaders make the appointments. Members should serve for a period long enough to enable them to develop selection skills. No member of a commission should seek judicial office until a sufficient amount of time has passed to ensure a commission’s objectivity and preserve public confidence. Large jurisdictions or those with many vacancies to fill each year may want to expand the number of commissioners to nine in order to facilitate the commission’s work of recruiting, screening, and investigating applicants. Judicial Merit Selection: Current Status, Table 1, at http://www.judicialselection.us/judicial_selection_materials/, details commission composition in jurisdictions with commission-based appointment of judges.

Section ___.03. Terms of Initial Commission Members. The initial members of [the] [each] judicial nominating commission shall serve for terms as follows: one lay member and one attorney member for two years, one lay member and one attorney member for four years, and one lay member and two attorney members for six years. Commentary Commissioners’ terms are staggered to balance the new perspectives of incoming members with the expertise and experience of continuing members. Staggered terms also help deter the development of blocs in the commission; such blocs may subvert the goal of nominating only the best qualified candidates.

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Section ___.04. Reimbursement, Compensation, and Administrative Assistance. (a) Members of [the] [each] judicial nominating commission shall be reimbursed for all expenses incurred in carrying out their official duties. (b) Compensation also may be prescribed by law. (c) All resources necessary to carrying out [the] [each] commission’s official duties shall be provided, including staff, equipment, and materials. Commentary Offering compensation could help increase commission diversity, as it will provide an incentive to encourage those with lower incomes, those who must travel a significant distance, and/or those who would otherwise be reluctant to serve. To foster an effective commission, essential services must be made available. These services should include staff support to coordinate commission travel, meetings, conference calls, and candidate interviews; office services; and any other necessary support so that commissions receive timely assistance. In some jurisdictions, the state or local court administrator provides this support; in others, the commission chair’s administrative assistant coordinates commission activities.

Section ___.05. Powers of the Judicial Nominating Commission. [The] [Each] judicial nominating commission shall have the power to adopt written rules to formalize and standardize its procedures for selecting the best qualified nominees for judicial office. Commentary The benefits of standard, written procedures are many. Written rules guide commissioners and applicants. They help ensure that all applications are handled similarly, and reassure the public that the process is fair and will withstand scrutiny. Written rules governing commissioner ethics have been adopted by a number of states. Examples include specific provisions requiring disclosure of personal, business, or professional relationships with applicants and commissioner recusal in instances of close relationships; impartiality in selecting nominees; and adherence to commission confidentiality requirements. Alaska, Idaho, Missouri, Nebraska, and Rhode Island require new commissioners to take an oath of office. Additionally, Florida, Hawaii, and Tennessee have adopted specific ethical guidelines. Many other states have adopted rules regarding criteria to be used in evaluating applicants, investigating and interviewing them, and voting for the final nominees, as well as other commission procedures. A number of states post their written rules on state court websites. Rules may also be laid out in statutory language or in a governor’s executive order. For details about various commissions’ written procedural and ethical rules, see the relevant chapters on these topics in the Handbook for Judicial Nominating Commissioners (AJS: 2004) at http://www.judicialselection.us/judicial_selection_materials/.

Alternative retention provisions: Section ___.06. Retention Elections. Any judge who seeks additional terms for the same judicial office shall be retained in office by vote of the electorate. The retention election shall be nonpartisan, shall require the affirmative vote of a majority of those voting on the question to retain the judge, and shall be coupled with a judicial performance evaluation program that will provide information to voters in retention elections. (See Section __.07 below.) Commentary Only one state, New Mexico, requires a supermajority of 57% of votes cast to retain 28 a “merit-selected” judge in office. The nonpartisan court plan, or merit selection, is designed to initially select the best qualified persons for judgeships, and then provide appropriate public accountability through uncontested retention elections. Because of the increasing involvement of interest groups that oppose judges in retention elections and threaten their decision-making independence, a simple affirmative majority of votes cast is designed to safeguard that independence.

Section ___.06. Retention by Reappointment. Any judge who seeks additional terms for the same judicial office shall be retained in office by a finding of the appointing authority that the judge has served competently and with integrity. Commentary: The competence of all judges should be periodically reviewed, although methods of retention may vary. In some jurisdictions it may be preferable to hold retention elections, in others to allow the appointing authority (usually the governor) to make the retention decision. Regardless of the form it takes, judicial retention should be designed to ensure that only qualified judges remain on the bench. A judicial performance evaluation program (see Section __.07) may be implemented to inform the reappointing authority’s decision.

Section ___.07. Retention Evaluation of Justices and Judges. The [supreme court] [judicial council] shall establish, after public hearings, a process for evaluating judicial performance for all justices and judges who file a declaration to be retained in office, and shall provide information gathered in the evaluation process [to the public at a time reasonably prior to the election, but in no event less than 60 days before the election] [to the reappointing authority]. The rules governing the evaluation process shall include written performance criteria and call for performance reviews that survey opinions of persons who have knowledge of the justice’s or judge’s performance. The public shall have a full and fair opportunity to participate in the evaluation process.

IMPLEMENTING A COMMISSION PLAN FOR APPOINTMENT TO OFFICE Rule ___. JUDICIAL NOMINATING COMMISSION Rule ___.01. Written rules. [The] [Each] commission shall adopt written rules that formalize and standardize all operating procedures and ethical practices. Commentary If the commission does not have written ethical and procedural rules and explicit, measurable selection criteria, commissioners should develop and adopt them. The use of written, uniform rules reassures the public and potential applicants that the process is designed to treat all applicants equally and to nominate the best qualified persons. A copy of the rules should be given to all applicants and made available to the public on request, by posting on a court website, distributing through the media, or disseminating in a manner best suited to the jurisdiction. The commission rules should explicitly address, for example, situations that pose a conflict of interest to a commissioner, such as when a business or law partner or a close relative applies for a judgeship. Commission rules should also clarify the confidentiality of commission proceedings such as deliberations and voting. For detailed instruction on commission ethics and examples of ethics provisions adopted by various commissions across 29 the country, see Chapter 1: Ethics, in the Handbook for Judicial Nominating Commissioners at http://www.judicialselection.us/judicial_selection_materials. Subsequent chapters address the importance of the organizational meeting, measurable evaluative criteria, screening and investigation of applicants, interviewing candidates, voting for the nominees, and submitting the names to the appointing authority.

Rule ___.02. Vacancy. The commission shall meet and submit a list of no more than five nor less than two persons best qualified for the judicial office to the governor within 60 days of the occurrence of a vacancy. Commentary Commissions in most jurisdictions submit between two and five names to the appointing authority. For a comparative overview, see Judicial Merit Selection: Current Status, Table 3, at http://www.judicialselection.us/judicial_selection_materials/.

Rule ___.03. Quorum. The commission cannot act unless a quorum exists. A quorum consists of a majority of the commission plus one. Commentary In light of the importance of the nominating commission’s role in judicial selection, more than a simple majority of commission members should participate in the commission’s deliberations and decision making.

Rule ___.04. Chair. The chair shall convene and preside at all meetings. When the chair is absent, the commission shall choose a member to act as temporary chair. Commentary The role of the chair is to call commission meetings, keep commission members notified of commission business, act as a spokesperson for the commission, monitor commission activities, and ensure that all commissioners and applicants abide by commission rules.

Rule ___.05. Open meetings. (a) All organizational meetings of the judicial nominating commission shall be open to the public. An “organizational meeting” is an initial meeting to discuss the commission’s procedures and requirements for the vacancy. The commission shall make available copies of its written rules. A notice outlining the topics to be discussed should be given to the public 72 hours prior to the meeting. Public participation should be encouraged at each organizational meeting. (b) All final deliberations of the judicial nominating commission shall be secret and confidential. (c) The confidentiality of other proceedings of the judicial nominating commission shall be determined by commission rule. Commentary Among states that use judicial nominating commissions, what is treated as confidential and what is made public (applications, interviews, deliberations, voting) varies greatly. For more information on state practices, see Judicial Merit Selection: Current Status, Table 4, at http://www.judicialselection.us/judicial_selection_materials/. Finding the appropriate balance between preserving the privacy of judicial applicants and providing transparency in the screening process is one of the greatest challenges that nominating commissions face. Applicants should be protected 30 from public scrutiny regarding their private lives and from public embarrassment that could result from failure to receive a nomination. At the same time, the public should have sufficient knowledge of the nominating process to maintain confidence in that process. Commission proceedings should be as open as possible. However, the final deliberations and selection of nominees should remain confidential to encourage free and open discussion of the candidates’ qualifications. To preserve confidentiality of these proceedings, some states may need to exempt the final deliberations from the state Open Meetings Act.

Rule ___.06. Publicity. When a judicial vacancy occurs or when it is known that a vacancy will occur at a definite date, the chair shall publicize the vacancy and solicit the submission of names of qualified individuals by press release to the media; notice to state, local, women, and minority bar associations; and posting in the courthouse[s] of the [state] [district] [circuit]. Commentary These requirements are minimal and should be supplemented with active recruitment techniques. Special effort should be made to circulate the notice of vacancy to women and minority bar associations and organizations of public sector attorneys.

Rule ___.07. Recruiting applicants. Commissioners shall recruit qualified individuals to apply for judicial appointment. Commentary If the commission reflects the geographic and demographic makeup of the jurisdiction, its members will have links to various communities. Therefore, in a further effort to broaden and diversify the applicant pool, commissioners should seek out and encourage applications from highly qualified individuals who might not actively seek a judicial appointment. See Chapter 4: Notice of Vacancy and Recruitment, in the Handbook for Judicial Nominating Commissioners at http://www.judicialselection.us/judicial_selection_materials/. However, it is imperative that commissioners indicate to recruited applicants that they are soliciting applicants on behalf of the entire commission, and that the recruited applicant will be subject to the same evaluative scrutiny as other applicants.

Rule ___.08. Submitting names of nominees to the appointing authority. (a) The names of nominees shall be submitted to the appointing authority in alphabetical order. (b) A memorandum may accompany the list of nominees and may state facts concerning each of the nominees listed. (c) Upon submission of the names to the appointing authority, the appointing authority shall make the names public and public comment shall be encouraged. Commentary Once the names of nominees are submitted to the appointing authority, the commission may provide additional information only on request of the appointing authority. The commission’s written rules should address how the commission responds to any post-nomination communications from the appointing authority. If the commission would like to provide supplemental background information on the nominees, it may do so in a memo without indicating any commission preference. A substantial majority of states also allow for public comment at this point in the selection process. This is the point at which public preferences are appropriately 31 voiced. By providing the opportunity for public participation, the appointing authority also fosters public confidence in the final appointment.

Rule ___.09. Candidacy and selection of commission members. (a) Any individual wishing to serve on the judicial nominating commission can declare his or her candidacy as follows: Any person may be considered for an attorney position by declaring his or her candidacy in writing to the ___ at ___, if that person has been a resident of this state for 3 years and is licensed to practice law in this state. Any person may be considered for a lay position by declaring his or her candidacy in writing to the governor’s office at ___, if that person has been a resident of this state for 3 years. (b) Declarations of candidacy must be submitted within 30 days after publication of notice of the vacancy and should be accompanied by descriptions of the candidates’ qualifications for service on the commission. (c) A commission member’s term shall commence on ___, the day of appointment. A commissioner may remain on the commission until his/her replacement has actually been appointed. Commentary The process for declaring an interest in serving on the judicial nominating commission should be open and accessible. A residency requirement of three years’ duration has been included to ensure that commissioners have knowledge of the state and the community.

For those states using retention elections add: Rule ___.10. Judicial retention ballot. A separate nonpartisan judicial ballot shall be designed for each judicial district in which a justice or judge is seeking an additional term. The ballot shall be divided into ___ parts corresponding to the court to which the candidate is seeking to be retained. Within each part the ballot shall read: “Shall ___ be retained as [justice] [judge] of the ___ court for ___ years? ___Yes ___No”

Rule ___.11. Commissioner education. Every [two] [three] years, the [commission chair] [state court administrator] shall conduct an educational program for commissioners in which the mission of the judicial nominating commission[s] and [its] [their] policies and procedures are thoroughly reviewed and discussed. Commentary It is important that commissioners have the opportunity periodically to step back from their work to assess what they are doing and how they are doing it. Given that most commissioners have staggered terms, an educational program every two or three years will orient new commissioners to the process, and give experienced commissioners time to reflect on their past work. Commissioners can discuss ethical and procedural challenges they have encountered and whether or how they need to revise their rules to meet those challenges. If a state has an appellate commission and a number of local ones, commissioners can discuss and learn from the challenges and successes of members of other commissions. Finally, education reinforces the commission’s role as an independent body with a mission to nominate the best qualified candidates for judgeships.

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ESTABLISHING A PERFORMANCE EVALUATION PROGRAM FOR RETENTION IN OFFICE Section ___. Judicial Performance Evaluation for Retention in Office Section ___.01. Purposes. These provisions are intended to establish a judicial performance evaluation program that will (1) provide fair, responsible, and constructive information about judicial performance [to persons voting on the retention of justices and judges] [to the authority responsible for reappointing justices and judges]; (2) facilitate self improvement of all such justices and judges; and (3) ensure judicial integrity and competence. Any commission established under these provisions also may conduct midterm evaluations of judges not then standing for retention. Commentary Judicial performance evaluation programs are and should be designed for the purposes of reaffirming the integrity and competence of the judiciary. At the same time, such programs should be implemented in a manner that preserves judicial independence. The evaluation process should be designed so as to avoid partisan, political, and other external influences that could undermine these fundamental goals. To that end, judges should be evaluated according to whether they demonstrate the qualities that all judges should possess—e.g., knowledge of the law, impartiality, professionalism—rather than whether they make decisions with which the public agrees. Judicial performance evaluation programs have additional benefits as well, in that they may identify the need for and improve the content of judicial education programs and increase public awareness of the work of the judiciary.

Section ___.02. Appellate Commission on Judicial Performance Evaluation. The periodic evaluation of appellate judges subject to retention shall be conducted by the Appellate Commission on Judicial Performance Evaluation. The appointment of commissioners and the activities and operations of the commission shall be governed by the following provisions: (a) Appointment of Commissioners: The commission shall consist of nine (9) members appointed by the [supreme court] [judicial council]. There shall be adequate representation of laypersons on the commission, but at least five members of the commission shall be attorneys. The appointing authority shall make reasonable efforts to ensure that the commission substantially reflects the diversity of the jurisdiction (e.g., racial, ethnic, gender, and other diversity). Commission members shall choose one of their number to serve as chair. (b) Terms. All members of the commission shall serve staggered terms of four years except that, of those first appointed, four members shall serve terms of two years. No member may serve more than two terms. A member appointed to fill an unexpired term shall serve the remainder of that term. (c) Powers and Duties of the Commission. The powers and duties of the commission shall be as follows: (1) To develop techniques for evaluating all justices and judges subject to retention on relevant performance criteria which include, but are not limited to, legal ability, integrity and impartiality, communication skills, professionalism and temperament, and administrative capacity. (2) To assist trial court commissions in identifying additional evaluation criteria appropriate for trial judges; (3) To develop uniform statewide evaluation procedures; (4) To develop performance evaluation surveys of lawyers, jurors, litigants, other judges, court personnel, and others who have recently had direct contact with justices 33 and judges; (5) To employ agents to distribute, collect, and tabulate surveys; (6) To produce and distribute to [the public] [the authority responsible for retention] no later than [60 days before the retention election] [[90] [120] days before the judge’s term expires] pertinent information concerning each justice or judge subject to retention. (7) To develop a procedure for justices and judges to receive and respond to their evaluation reports before they are made public. (8) To promulgate, subject to approval by the [supreme court] [judicial council], rules necessary to implement the provisions of this legislation.

Optional provision for midterm evaluations: (9) To conduct confidential midterm evaluations of the performance of appellate judges not then standing for retention. The results shall be shared only with the reviewed judge and an appropriate supervising judge or justice as determined by the commission. Commentary The size of currently operating commissions varies substantially, from 7 to 30 members. One factor that should be considered in determining the size of the commission is the number of judges to be evaluated. Commissions should also be large enough to represent the demographic and geographic diversity of the juris- 12 American Judicature Society diction. The process for appointing commissioners varies from state to state. While most states call for a single appointing authority, others allow multiple entities (e.g., the governor, legislative leaders, the bar) to nominate and/or to appoint commission members. To prevent political or special interests from influencing the composition or work of the commission, commission members should be appointed by a single authority within the judicial branch. Having a single appointing authority should also facilitate diversity on the commission. These criteria represent qualities that all justices and judges should possess and demonstrate. Justices and judges demonstrate their “legal ability” in their legal reasoning skills and knowledge of substantive and procedural law. “Integrity and impartiality” is evidenced by the fair and respectful treatment of all litigants, the avoidance of impropriety and the appearance of impropriety, and the rendering of decisions based solely on law and fact. “Communication skills” encompass the ability to communicate effectively orally and in written orders and opinions. Justices and judges demonstrate their “professionalism” not only in the courtroom and in their chambers, but also in the legal community and in the public arena. Their “temperament” is indicated by the extent to which they treat those with whom they interact with courtesy and patience. “Administrative capacity” represents control over judicial proceedings, docket management and timely case disposition, and effectiveness in dealing with other participants in the judicial process. Performance evaluation criteria should also address particular skills required for the level of court on which a justice or judge sits (trial or appellate) and knowledge required for justices or judges of courts with specialized jurisdiction. Evaluation criteria should not include whether justices and judges make decisions that have political or popular support. The commission should take appropriate steps (e.g., developing a website) to make the public aware of the evaluation program and to allow public comment. When the commission receives written information from an identified individual who has had recent direct contact with a justice or judge being evaluated, the commission should share that 34 information with the justice or judge if it is considered in the evaluation.

Section ___.03. Trial Court Commissions on Judicial Performance Evaluation. (a) Appointment of Commissioners: There is hereby established in each judicial [district] [circuit] a trial court commission on judicial performance evaluation. Each such commission shall consist of nine (9) members appointed by the [supreme court] [judicial council]. There shall be adequate representation of laypersons on the commission, but at least five members of the commission shall be attorneys. Appointing authorities shall make reasonable efforts to ensure that the commission substantially reflects the diversity of the jurisdiction (e.g., racial, ethnic, gender, and other diversity). Commission members shall choose one of their number to serve as chair. (b) Terms. All members of the commission shall serve staggered terms of four years except that, of those first appointed, four members shall serve terms of two years. No member may serve more than two terms. A member appointed to fill an unexpired term shall serve the remainder of that term. (c) Powers and Duties of the Commissions. In addition to other powers and duties conferred on the trial court commissions by this legislation, a trial court commission has the following powers and duties: (1) To oversee the distribution of questionnaires and interview judges under the state commission’s direction; (2) To produce and distribute [to the public] [to the authority responsible for retention] no later than [60 days before the retention election] [90/120 days before the judge’s term expires] pertinent information concerning each judge subject to retention.

Optional provision for midterm evaluations: (3) To conduct confidential midterm evaluations of the performance of trial court judges not then standing for retention. The results shall be shared only with the reviewed judge and an appropriate supervising justice or judge as determined by the commission.

Section ___.04. Dissemination of Performance Evaluations of Justices and Judges. (a) The state appellate commission and each trial court commission shall conduct an evaluation of each justice or judge who is subject to retention. Evaluations shall be completed and a narrative profile prepared for communication to the justice or judge no later than thirty days prior to the last day on which a justice or judge can declare his or her intent to stand for retention. The justice or judge shall have the opportunity to meet with the appropriate commission or respond in writing to the evaluation, at his or her discretion, no later than ten days following receipt of such evaluation. If such a meeting is held or response is made, the commission may revise its evaluation. (b) After the requirement in paragraph (a) is met, a factual report concerning each justice or judge subject to [retention election shall be released to the public] [reappointment shall be given to the authority responsible]. The report shall include a narrative summary of the evaluation findings, and shall state whether the judge meets or fails to meet performance criteria. Commentary In some jurisdictions, the commission also makes a recommendation to the public or to the authority responsible for retention as to whether the judge should be retained or not retained. 35

Section ___.05. Administrative Assistance. (a) All resources necessary to carrying out [the] [each] commission’s official duties shall be provided, including staff, equipment, and materials. (b) Commission members shall receive no compensation, but shall be reimbursed for all reasonable expenses incurred in carrying out their official duties.

Section ___.06. Privilege and Immunity. All documents and information obtained by or submitted to the committee and all results of judicial evaluations are absolutely privileged, and no lawsuit predicated thereon may be brought. Statements made to the commission are absolutely privileged, provided, however, that this absolute privilege does not apply to statements made in any other forum. Members of the committee and staff shall be immune from suit and liability for any conduct in the course of their duties.

IMPLEMENTING A PERFORMANCE EVALUATION PROGRAM FOR RETENTION IN OFFICE Rule ___. JUDICIAL PERFORMANCE EVALUATION Rule ___.01. Meetings, Majority, Minutes. The commission shall meet at the call of the chair and shall conduct no business except upon the attendance of at least five members. Members shall be permitted to attend and participate in meetings by telephone or videoconference. All meetings shall be open to the public except as provided in Rule __.03 below. All actions shall require a majority vote of those present, except for a determination of whether a justice or judge meets or fails to meet performance criteria. That determination shall require a majority vote of the commission. Except for the requirements of Rule __.03, minutes of meetings of the commission shall be considered public documents. Commentary If the commission is empowered to make a retention recommendation, such action should also require a majority vote of the commission.

Rule ___.02. Executive Session. The commission shall meet in executive session at the time of (1) presentation and discussion of a judge’s written response or the results of any interview with a justice or judge concerning the commission’s draft evaluation; (2) discussion of whether a justice or judge meets or fails to meet performance criteria; and (3) voting on whether the narrative report shall say the justice or judge meets or fails to meet performance criteria. The commission may meet in executive session at any other time upon two-thirds vote of commission members then in attendance. The substance of deliberations in executive session shall be confidential.

Rule ___.03. Removal of Commissioners. Any member may be removed from the commission by the [chief justice] [judicial council] for conduct that substantially interferes with the performance of the commission’s duties.

Rule ___.04. Commissioner Impartiality and Disqualification. (a) A commissioner shall perform his or her duties in an impartial and objective manner. (b) A commissioner is disqualified from taking any action with respect to a justice or judge who is a family member, spouse, or domestic partner within the third 36 degree of consanguinity, or a justice or judge who was a commissioner’s business associate, attorney, or client within the preceding four years. (c) A commissioner shall disclose to the full commission any relationship with a justice or judge being evaluated, whether business, personal, or attorney-client, or any other cause for conflict of interest, and the commission shall determine whether a commissioner shall be disqualified. (d) A commissioner shall promptly report to the full commission any information conveyed to him or her concerning any justice or judge under review. The commissioner also shall promptly report to the full commission any attempt by any person or organization to influence him or her other than by fact or opinion. (e) No commissioner shall complete a survey for any justice or judge.

Rule ___.05. Data Collection. (a) The commission [shall] [may] employ a qualified contractor whose duty it shall be to prepare the surveys referred to herein, process the survey responses, and compile the statistical reports of the survey results in a manner that will ensure the confidentiality and accuracy of the process. (b) The commission also may formulate a justice’s or judge’s self-evaluation questionnaire, contact the state’s judicial conduct commission, interview the reviewed justice’s or judge’s colleagues on the bench, and seek other relevant information that will ensure a full and fair evaluation process. Commentary Additional sources of information that may be used in the evaluation process include case management statistics, courtroom observation, and participation in mandatory judicial education.

Rule ___.06. Confidentiality and Disclosure of Records. (a) All information, completed survey forms, letters, notes, memoranda, and other data obtained and used in the course of any judicial performance evaluation shall be strictly confidential and shall not be disclosed by any commissioner, staff person, or agent except as provided herein. All survey forms and other evaluation information shall be anonymous. (b) Under no circumstances shall the data collected or the results of the evaluation be used to discipline an individual justice or judge or be disclosed to authorities charged with disciplinary responsibility, unless required by law or by the state’s code of judicial conduct. (c) Notwithstanding the foregoing, information disclosing a criminal act may be provided to law enforcement authorities at the direction of the supreme court. Requests for such information in the possession of a commission shall be made by written petition setting forth the specific information needed. All information and data provided to law enforcement authorities pursuant to this paragraph shall no longer be deemed confidential.

APPENDIX ESTABLISHING A COMMISSION PLAN FOR APPOINTMENT TO OFFICE BY EXECUTIVE ORDER Commentary As noted in Part I, the stability of a constitutional or statutory plan is preferable, but if such a plan is not in place, governors and other appointing authorities may establish a commission plan by executive order. The following provisions lay out the essential components of an executive order establishing a commission plan, 37 leaving some aspects to the discretion of the appointing authority. Accompanying commentary provides an overview of existing executive order-based plans. I, ______, [Governor] [Mayor] of the [State] [City] of ______, desiring to maintain the highest quality of justice in [State] [City], establish a Judicial Nominating Commission to nominate the best qualified lawyers through a fair and open process that promotes a judiciary representative of the racial, ethnic, gender, and other diversity of [State] [City].

Section 1. Nomination and Appointment. The [Governor] [Mayor] shall fill any vacancy in an office of _____ court justice or _____ court judge by appointing one person nominated by the judicial nominating commission [for the district/circuit where the vacancy occurs]. The judicial nominating commission shall nominate no more than ___ nor less than ___ best qualified persons for each vacancy.

Optional provision for filling interim vacancies only: Section 1. Nomination and Appointment. The [Governor] [Mayor] shall fill an interim vacancy in an office of _____ court justice or _____ court judge by appointing one person nominated by the judicial nominating commission [for the district/circuit where the vacancy occurs]. The judicial nominating commission shall nominate no more than ___ nor less than ___ best qualified persons for each vacancy. Commentary In jurisdictions with commission plans established by executive order, the number of nominees submitted to the appointing authority varies from 2 to 7. For more information, see Judicial Merit Selection: Current Status, Table 3, at http://www.judicialselection.us/judicial_selection_materials/.

Section 2. Judicial Nominating Commission. (a) [The] [Each] judicial nominating commission shall consist of ___ members appointed by the [Governor] [Mayor]. Commission members shall serve ___-year terms at the pleasure of the [Governor] [Mayor]. Appointments and elections to the commission[s] shall be made with due consideration to [geographic] [community] representation and without regard to political affiliation. The [Governor] [Mayor] shall make reasonable efforts to ensure that the commission substantially reflects the diversity of the jurisdiction (e.g., racial, ethnic, gender, and other diversity). No member of [the] [a] nominating commission may hold any other office under the United States, the State, or other governmental entity for which monetary compensation is received. No member shall be eligible for appointment to a state judicial office so long as he or she is a commission member and for ___ years thereafter. Commentary In a democratic society it is important that public bodies such as judicial nominating commissions be broadly representative of the communities they serve. Care should be taken to ensure that the composition of the commission is reflective of the demographic makeup of the jurisdiction. No member of a commission should seek judicial office until a sufficient amount of time has passed to ensure a commission’s objectivity and preserve public confidence. In states with commission plans by executive order, the size of the nominating commissions varies from 9 to 21 members. Governors appoint most or all commission members in these states, with the state bar association appointing some members in some states. Under most 38 executive order plans, commission members serve terms of up to three years and/or at the governor’s discretion. For more information, see Judicial Merit Selection: Current Status, Tables 1 and 2, at http://www.judicialselection.us/judicial_selection_materials/.

Section 3. Reimbursement and Administrative Assistance. (a) Members of [the] [each] judicial nominating commission shall be reimbursed for all expenses incurred in carrying out their official duties. (b) All resources necessary to carrying out [the] [each] commission’s official duties shall be provided, including staff, equipment, and materials. Commentary To foster an effective commission, certain minimal services should be made available. These services should include staff support to coordinate commission travel, meetings, conference calls, and candidate interviews; office services; and any other necessary support so that commissions receive timely assistance.

Section 4. Powers of the Judicial Nominating Commission. [The] [Each] judicial nominating commission shall have the power to adopt written rules to formalize and standardize procedures for selecting the best qualified nominees for judicial office. Commentary In some states with executive order plans, procedural rules are provided in the executive orders. In others, commission chairs or members adopt their own rules.

Section 5. Vacancies. Within ____ days of the occurrence of a vacancy, the judicial nominating commission shall meet and submit a list of not more than ___ nor less than ___ best qualified candidates for the judicial office. Commentary Some executive order plans require the commission to submit the list of nominees within a certain timeframe, ranging from 60 to 90 days, following the announcement of the vacancy. For more information, see Judicial Merit Selection: Current Status, Table 3, at http://www.judicialselection.us/judicial_selection_materials/.

Section 6. Quorum. The commission cannot act unless a quorum exists. A quorum consists of a majority of the commission plus one. Commentary In light of the importance of the nominating commission’s role in judicial selection, more than a simple majority of commission members should participate in the commission’s deliberations and decision making.

Section 7. Chair. The [Governor] [Mayor] shall appoint one commission member to serve as chair. Commentary The role of the chair is to order commission meetings, notify commission members of commission business, and act as a spokesperson for the commission.

Section 8. Publicity. When a judicial vacancy occurs or when it is known that a vacancy will occur at a definite date, the chair shall publicize the vacancy and solicit the submission of names of qualified individuals by press release to the media; notice to state, local, 39 women, and minority bar associations; and posting in the courthouse[s] of the [state] [district/circuit]. Commentary These requirements are minimal and should be supplemented with active recruitment techniques.

Section 9. Open Meetings. (a) All organizational meetings of the judicial nominating commission shall be open to the public. An “organizational meeting” is an initial meeting to discuss the commission’s procedures and requirements for the vacancy. A notice outlining the topics to be discussed should be given to the public 72 hours prior to the meeting. Public participation should be encouraged at each organizational meeting. (b) All final deliberations of the judicial nominating commission shall be secret and confidential. (c) The confidentiality of other proceedings of the judicial nominating commission shall be determined by commission rule. Commentary Commission proceedings should be as open as possible. The final deliberations and selection of nominees should remain confidential to encourage free and open discussion of the candidates’ qualifications. To preserve confidentiality of these proceedings, some states may need to exempt the final deliberations from the state Open Meetings Act.

Section 10. Submitting Names of Nominees to the [Governor] [Mayor]. (a) The names of nominees shall be submitted to the [Governor] [Mayor] in alphabetical order. (b) A memorandum may accompany the list of nominees and may state objective facts concerning each of the nominees listed. (c) Upon submission of the names to the [Governor] [Mayor] , the [Governor] [Mayor] shall make the names public and shall encourage public comment. Commentary Once the names of nominees are submitted to the appointing authority, the commission should provide additional information only on request of the appointing authority. If the commission would like to provide supplemental background information on the nominees, it may do so in a memo without indicating any commission preference. A substantial majority of states also allow for public comment at this point in the selection process. By providing the opportunity for public participation, the appointing authority can foster public trust in the final appointment.

For more information, please visit: Model Judicial Selection Provisions http://www.ajs.org/selection/docs/MJSP_web.pdf

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Methods of Judicial Selection Judicial Nominating Commissions (source: American Judicature Society) Alabama Judicial nominating commissions are used to fill vacancies in Baldwin, Jefferson, Lauderdale, Madison, Mobile, Shelby, Talladega, and Tuscaloosa Counties. Each county determines the size, composition, and procedures for its nominating commission. Alaska Established by the Alaska Constitution at statehood, the Alaska Judicial Council solicits and screens applicants for judicial vacancies on all levels of courts and submits the names of at least two nominees to the governor for appointment. The judicial council is composed of three nonlawyer members appointed by the governor and confirmed by a majority of the legislature in joint session, three lawyer members appointed by the board of governors of the Alaska Bar Association, and the chief justice of the Alaska Supreme Court, who serves as the ex officio chair. The constitution requires that judicial council appointments be made "with due consideration to area representation and without regard to political affiliation." Council members serve staggered six-year terms, except for the chief justice who serves for three years. Click here to view the AJC bylaws regarding judicial nominations. Nominating Commission Costs: $119,457 (2007) Includes travel, printing, advertising, and questionnaire collection but not staff time for Alaska Judicial Council. Arizona There are three judicial nominating commissions in Arizona: the commission on appellate court appointments, the Maricopa County commission on trial court appointments, and the Pima County commission on trial court appointments. Each commission consists of sixteen members, including five lawyers and ten nonlawyers. The lawyer members are nominated by the board of governors of the State Bar of Arizona and appointed by the governor and confirmed by the senate. The nonlawyer members are appointed by the governor and confirmed by the senate. The chief justice or a designated associate justice of the supreme court serves as chair. Commission members must have lived in Arizona for at least five years, and lawyer members must have practiced law in Arizona for five years. No more than three lawyer members and no more than five nonlawyer members may belong to the same political party. Regarding the commission on appellate court appointments, no more than two lawyer members and no more than two nonlawyer members may be residents of the same county. With respect to the commissions on trial court appointments, no lawyer members and no more than two nonlawyer members may be residents of the same supervisorial district. Commission members serve staggered, four-year terms. When a vacancy occurs, the appropriate commission announces that applications are being accepted. After investigating and interviewing applicants, the commission submits a list of at least three nominees to the governor. No more than 60% of the nominees may be members of the same political party. If the governor fails to appoint one of the commission's nominees within sixty days, the chief justice makes the appointment from the list of nominees. Colorado When a vacancy occurs on the supreme court, court of appeals, district court, or county court, a judicial nominating commission recommends to the governor qualified candidates to fill the vacancy. Three

41 names are submitted for appellate court vacancies, and two or three are submitted for trial court vacancies. The governor must appoint a judge from the nominating commission's list. The supreme court nominating commission, which recommends candidates to fill vacancies on the state's appellate courts, is composed of fifteen members: the chief justice, who serves as a non-voting chair, one lawyer from each of the state's seven congressional districts, and one nonlawyer from each congressional district. There is a judicial district nominating commission for each of Colorado's twenty-two judicial districts. District nominating commissions, which recommend candidates for vacancies on the district and county courts, consist of a supreme court justice, who serves as a non-voting chair, and seven residents of the judicial district. In districts with populations greater than 35,000, there are three lawyer members and four nonlawyer members. In districts with populations less than 35,000, at least four members are nonlawyers, and it is determined by majority vote of the governor, attorney general, and chief justice how many members will be lawyers. Lawyer members of these commissions are appointed by majority action of the governor, attorney general, and chief justice; nonlawyer members are appointed by the governor. Excluding the supreme court justice who serves on the commission, no more than half the commission members plus one may belong to the same political party. Commission members serve six-year terms. Nominating Commission Costs: $15,510 (2007) ; $10,535 (2006); $13,205 (2005) Connecticut The judicial selection commission is composed of twelve members. Two members are appointed from each congressional district--one lawyer and one nonlawyer. The six lawyer members are appointed by the governor; the six nonlawyer members are appointed by the president pro tempore of the senate, the speaker of the house of representatives, the majority leaders of the house and senate, and the minority leaders of the house and senate. No more than six commission members may belong to the same political party. In addition, commission members may not be elected or appointed state officials or hold statewide office in a political party. Commission members serve three-year terms.

The commission screens candidates for vacancies on the superior court, appellate court, and supreme court and submits a list of candidates to the governor. The governor must nominate a candidate from the list. The commission also evaluates incumbent judges who seek reappointment and forwards to the governor the names of incumbents who are recommended for reappointment.

Nominating Commission Costs: $106,600 (2006); $98,452 (2005); $92,816 (2004)

Delaware Since 1977, Delaware governors have established by executive order a judicial nominating commission to identify highly qualified candidates for judicial appointments. Delaware's current commission operates pursuant to Executive Order No. 4 and applies to the appointment of judges of the supreme court, the superior court, the court of chancery, the family court, and the court of common pleas, and to the appointment of the chief magistrate of the justice of the peace courts. A magistrate screening committee is used for associate magistrates of the justice of the peace courts. The judicial nominating commission is composed of eleven members. The governor appoints ten members, including at least four lawyers and at least four nonlawyers. The president of the Delaware State Bar Association nominates with the governor's consent the eleventh member, who is then appointed by the governor. The governor designates the commission's chairperson. Commissioners serve staggered,

42 three-year terms and may be reappointed by the governor. No more than six commissioners may be members of the same political party at the time of their appointment. When a judicial vacancy occurs, the commission submits the names of at least three candidates to the governor. The governor may decline to nominate someone from this list and may request a supplemental list of no fewer than three names. The governor must nominate a candidate from one of these lists, unless the senate fails to confirm the nominee. Sitting judges apply to the commission for reappointment. The commission must recommend their reappointment unless at least two thirds of the members of the commission object. In the past, the Delaware State Bar Association has played a more active role than it does currently in the judicial selection process. Some governors have allowed the bar's judicial appointments committee to comment on commission nominees before the list is submitted to the governor, indicating whether nominees are qualified to serve.

Nominating Commission Costs: $8000 (2007); $8000 (2006); $8000 (2005) District of Columbia When a vacancy occurs on a D.C. court, the judicial nomination commission must submit to the president within sixty days a list of three nominees to fill the vacancy. The commission consists of seven members who serve six-year terms. The president appoints one member to the commission, the board of governors of the D.C. Bar appoints two lawyer members, the mayor of D.C. appoints one lawyer and one nonlawyer member, the D.C. Council appoints one nonlawyer member, and the chief judge of the U.S. District Court for the District of Columbia appoints an active or retired D.C. federal judge. Commission members may not be nominated to D.C. judgeships within two years of leaving the commission. Florida There are twenty-six judicial nominating commissions that screen applicants for vacancies on Florida courts and recommend qualified candidates to the governor: the statewide nominating commission for the supreme court (rules), a commission for each of the five district courts of appeal (rules), and a commission for each of the twenty judicial circuits (rules). For all vacancies on the supreme court and district courts of appeal and for mid-term vacancies on the circuit and county courts, the appropriate nominating commission submits a list of three to six nominees. The governor must appoint one of the commission's nominees. Each nominating commission consists of nine members appointed by the governor. Four members are lawyers appointed from lists of nominees submitted by the Florida Bar. Of the remaining five members, at least two must be lawyers. Members must be residents of the jurisdiction the commission serves. In making the appointments, the governor is to ensure that, to the extent possible, the membership of each commission reflects the racial, ethnic, and gender diversity and geographic distribution of the relevant jurisdiction. Members serve four-year terms. In 1991, the Florida legislature altered the composition of the state's judicial nominating commissions to provide that one third of all members be women or members of a racial or ethnic minority group. A white male who applied for a commission vacancy was rejected because the position was reserved for a woman or minority, and he filed a suit challenging the constitutionality of the diversity provision. The federal district court found that the provision violated the equal protection clause of the Fourteenth Amendment. Mallory v. Harkness, 895 F.Supp. 1556 (S.D. Fla. 1995). The decision was affirmed by the court of appeals without reported opinion in 1997. Nominating Commission Costs: $13,000 (2007)

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Georgia In 1972, Governor Carter became the first Georgia governor to establish a judicial nominating commission by executive order. Subsequent governors have followed Carter's example. Under the current executive order, the judicial nominating commission recommends candidates to fill vacancies on the supreme court, court of appeals, superior court, and state court. The commission consists of eighteen members who are appointed by the governor and who serve at his pleasure. Appointments to the commission are "made with a view toward equitable geographic representation and . . reflect the diversity of the State's citizenry." The commission recommends five candidates to the governor for each judicial vacancy, unless fewer than five applicants are found to be qualified. There is no requirement that the governor appoint a candidate from the nominating commission's list. Nominating Commission Costs: $5000 (2007) Hawaii The judicial selection commission reviews and evaluates applicants for all judicial vacancies and submits a list of four to six names to the governor. (For vacancies on the district and family courts, a list of at least six names is submitted to the chief justice.) The commission also determines whether judges should be retained in office upon the expiration of their terms. Judges must notify the commission within six months of the expiration of their term that they plan to seek retention. The commission solicits public comment and interviews those who have had contact with the judge. The judge completes a questionnaire and is interviewed by the full commission. A judge must receive at least five favorable votes to be retained. The commission consists of nine members, no more than four of whom may be lawyers. The governor appoints two members, only one of whom may be an attorney. The president of the senate and the speaker of the house of representatives each appoint two members to the commission. The chief justice appoints one commission member, and the Hawaii State Bar Association selects two lawyer members. Commission members serve staggered six-year terms, and members are limited to one term. Nominating Commission Costs: $93,843 (2007) Idaho When vacancies occur on the supreme court, court of appeals, or district court, the Idaho Judicial Council submits the names of two to four nominees to the governor. The governor must choose an appointee from the list.

The Idaho Judicial Council has seven members, including the chief justice who serves as chairperson. Three members are lawyers (at least one must be a district judge) selected by the board of commissioners of the Idaho State Bar with the consent of the state senate. Three nonlawyer members are chosen by the governor with the consent of the state senate. No more than three of the appointed members may belong to the same political party. Members serve six-year terms. Click here to view the IJC's rules of procedure regarding judicial nominations.

Nominating Commission Costs: $126,400 (2007) This is the yearly budget of the Idaho Judicial Council, which is also responsible for judicial discipline. Indiana The commission on judicial qualifications also serves as the state judicial nominating commission, which recruits and interviews applicants for vacancies on the supreme court, court of appeals, and tax court, and forwards to the governor the names of three nominees for each position. The nominating commission also selects the chief justice of the supreme court. The commission consists of seven members: the chief

44 justice, who serves as chair; one lawyer elected from each of the three geographic court of appeals districts by bar members in that district; and one nonlawyer appointed by the governor from each geographic court of appeals district. Commission members serve three-year terms and may not be reappointed or reelected. Click here for statutes regarding the composition and operation of the state judicial nominating commission. Superior court judges in Lake and St. Joseph Counties are appointed by the governor from candidates submitted by local judicial nominating commissions. The nominating commission for the superior court of Lake County consists of nine members: the chief justice or an appellate judge designated by the chief justice, who serves as chair; four lawyers elected by members of the bar in the county; and four nonlawyers appointed by the Lake County board of commissioners. At least one lawyer and one nonlawyer member must be a minority, and at least two lawyer and two nonlawyer members must be women. No more than two of the nonlawyer members may belong to the same political party. Commission members serve four-year terms. The nominating commission for the superior court of St. Joseph County consists of seven members: a judge of the supreme court or court of appeals appointed by the governor; three lawyers elected by bar members in the county, and three nonlawyers appointed by a selection commission made up of the St. Joseph circuit court judge, the president of the St. Joseph County board of commissioners, and the mayors of St. Joseph County's two largest cities. No more than two lawyer members, and no more than four commission members, may belong to the same political party. Commission members serve four-year terms. Click here for statutes regarding the composition and operation of the Lake County judicial nominating commission, and here for the St. Joseph County commission. In Allen County, a local judicial nominating commission recommends candidates to the governor to fill mid-term vacancies on the superior court. The commission consists of seven members: the chief justice or an appellate judge designated by the chief justice, who serves as chair; three lawyer members elected by bar members in the county; and three nonlawyers, no more than two of whom may belong to the same political party, appointed by the governor. Commission members serve four-year terms. Iowa The state judicial nominating commission identifies nominees to fill vacancies on the supreme court and court of appeals. The commission consists of fifteen members--a chairperson and one elected and one appointed member from each of the state's congressional districts. (Although there are currently only five congressional districts in Iowa, selection of commission members is based on the seven congressional districts that existed in 1969 when the authorizing legislation was passed.) The chairperson is the senior associate justice of the supreme court. The elected members are chosen by resident members of the bar in each congressional district, and the appointed members are chosen by the governor, subject to senate confirmation. Commission members serve one six-year term. The state judicial nominating commission submits a list of three nominees for each vacancy. There is a district judicial nominating commission for each of the fourteen judicial election districts. Each district commission consists of eleven members--a chairperson, five members appointed by the governor and subject to senate confirmation, and five members elected by the bar. The senior judge in each district serves as chairperson. To ensure gender balance on the state judicial nominating commission, each congressional district must alternate between electing male and female members, and the governor cannot appoint more than four members of the same gender. For each district judicial nominating commission, the bar must alternate between electing male and female members, and the governor may not appoint more than three members of the same gender.

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Iowa actively seeks citizen participation in the nominating process by issuing a news release to the media whenever a vacancy occurs. Any citizen may submit to the commission in writing the names of potential judicial candidates, along with his or her opinion of the candidates. Kansas The supreme court nominating commission submits a list of qualified individuals to the governor for both supreme court and court of appeals appointments. The supreme court nominating commission is composed of five lawyer members and four nonlawyer members (one lawyer and one nonlawyer member from each congressional district, and one additional lawyer member who serves as chairperson). Lawyer members are elected by their peers in each congressional district, and nonlawyer members are appointed by the governor. Commission members serve four-year terms. There are judicial nominating commissions for each judicial district. The size of each commission varies according to the number of counties in the judicial district. However, there must be an equal number of lawyers and nonlawyers on each commission. Lawyer members are elected by their peers in each judicial district, and nonlawyer members are appointed by the board of county commissioners. A supreme court justice or district court judge from another district serves as chairperson. Commissioners serve four-year terms. Nominating Commission Costs: $100,000 (2007) Kentucky Judicial nominating commissions screen candidates for interim judicial vacancies and provide the governor with a list of three names. The governor must appoint a judge from this list. There is one nominating commission for the appellate courts, one for each judicial circuit, and one for each judicial district. Each commission is composed of seven members, and the chief justice serves as chair. Two commission members are lawyers elected by the Kentucky Bar Association, and the remaining four members are nonlawyers appointed by the governor. Among the four nonlawyer members, there must be two members from each of the state's two largest political parties. Commission members serve four-year terms. Click here to view commission rules. Maryland In 2007, Governor O'Malley issued an executive order creating an appellate courts judicial nominating commission and sixteen regional trial courts judicial nominating commissions. The commissions are charged with nominating individuals who are "legally and most fully professionally qualified" for judicial vacancies. Commission members are attorneys appointed by the governor and by the state bar. Nominating Commission Costs: $24,636 (2006); $18,851 (2005); $24,866 (2004) Massachusetts In 1975, Governor Dukakis adopted an executive order establishing a judicial nominating commission to screen candidates for judicial vacancies. Since that time, each of Massachusetts' governors has utilized a nominating commission to appoint judges. Under Executive Order 500, the judicial nominating commission advises the governor regarding appointments to the appeals court and trial court departments. The commission screens applicants for the supreme judicial court at the governor's discretion. The commission's twenty-one members are appointed by the governor and serve one-year terms at the governor's pleasure. The commission screens applicants and submits a list of three to six candidates to governor. The governor may decline to nominate one of these candidates, request further recommendations from the commission, or request that the application process be reopened.

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Minnesota In 1989, the Minnesota legislature created the commission on judicial selection to advise the governor on appointments to the district court. Although not required to do so by statute, some governors have used the commission to screen candidates for the supreme court and court of appeals as well. When a vacancy occurs on the district court, the commission evaluates applicants for the position and submits the names of three to five nominees to the governor. The governor is not required to appoint a judge recommended by the commission. The commission on judicial selection consists of forty-nine members, including twenty-seven who are appointed by the governor and twenty-two who are appointed by the supreme court. Nine commission members are appointed at large and participate in filling all vacancies; four members are appointed from each of the state's ten judicial districts and participate only when vacancies occur in their respective districts. The governor and the supreme court are required to appoint both lawyers and nonlawyers. The governor's appointees serve at the pleasure of the governor, while the supreme court's appointees serve four-year terms that end when the governor's term ends.

Nominating Commission Costs: $5000 (2007) Missouri Judges of the supreme court, court of appeals, and circuit courts in Jackson, Clay, Platte, and St. Louis Counties and in the city of St. Louis are appointed by the governor from a list of three names submitted by a nonpartisan judicial commission. The appellate judicial commission nominates candidates for the supreme court and court of appeals, and the appropriate circuit judicial commission nominates candidates for the circuit courts. The appellate judicial commission consists of seven members: a supreme court justice chosen by the other justices, one lawyer selected from each of the three appellate districts by Missouri Bar members in that district, and one nonlawyer selected from each appellate district by the governor. Each circuit judicial commission is composed of five members: the chief judge of the court of appeals district in which the judicial circuit is located, two lawyers selected from the circuit by Missouri Bar members in that circuit, and two nonlawyers residing in the circuit appointed by the governor. Commission members serve six- year terms. Nominating Commission Costs: $7741 (2007) Montana When an interim vacancy occurs on the supreme court, the district court, or the workers' compensation court, the judicial nomination commission screens candidates and provides the governor with a list of three to five nominees. The commission also submits a report that includes specific reasons for recommending each nominee. The governor must appoint a nominee from the commission's list. The judicial nomination commission also provides the chief justice with a list of nominees for all vacancies in the office of chief water judge. The judicial nomination commission is composed of seven members. Four nonlawyer members, who reside in different areas of the state and each of whom represents a different industry, business, or profession, are appointed by the governor. Two lawyer members from different parts of the state are appointed by the supreme court, and one district court judge is elected by other district court judges. Members of the commission serve staggered four-year terms and may not serve more than two full terms. Nominating Commission Costs: $2906 (2006)

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Nebraska In Nebraska, there are judicial nominating commissions for the chief justiceship, for each district of the supreme court, court of appeals, and district court, and for the courts of limited jurisdiction, making a total of thirty-three commissions. Each nominating commission consists of four lawyers elected by the Nebraska State Bar Association, four nonlawyers appointed by the governor, and a supreme court justice who serves as a non-voting chair. No more than two lawyers and two nonlawyers may be members of the same political party. Commission members serve staggered, four-year terms. When a judicial vacancy occurs, the appropriate commission holds a public hearing to interview applicants for the position and may also conduct private interviews. The commission submits the names of at least two qualified candidates to the governor, and the governor must appoint one of the candidates. If the governor fails to make an appointment within sixty days, the chief justice makes the appointment from the list of nominees. Click here to view commission rules. Nominating Commission Costs: $6000 (2006); $6000 (2005); $6000 (2004) Nevada When a midterm vacancy occurs on the supreme court or the district court, the governor appoints a judge from a list of three nominees submitted by the commission on judicial selection. There is a permanent commission to identify candidates to fill supreme court vacancies. The permanent commission is composed of the chief justice or a designated associate justice, three lawyers appointed by the board of governors of the State Bar of Nevada, and three nonlawyers appointed by the governor. Of the members appointed by the state bar and by the governor, none may reside in the same county and no more than two may be members of the same political party. Member serve four-year terms. Click here to view the commission on judicial selection's rules. A temporary commission is assembled to recommend candidates for district court vacancies. The temporary commission consists of the members of the permanent commission; a lawyer resident of the judicial district in which the vacancy occurs, appointed by the board of governors of the state bar; and a nonlawyer resident of that judicial district, appointed by the governor. Nominating Commission Costs: $14,247 (2006); $12,601 (2005); $15,074 (2004) New Hampshire In 2005, Governor Lynch created a judicial selection commission by executive order. The commission consists of eleven members, including six attorneys and five non-attorneys, appointed by the governor. When a vacancy arises on any state court, the commission evaluates applicants and recommends qualified persons to the governor. While the governor may request that the commission engage in a further search for qualified applicants, he must make his nomination from the persons identified by the commission. New Mexico There are fifteen judicial nominating commissions that screen applicants for vacancies on New Mexico courts and recommend qualified candidates to the governor: the appellate judges nominating commission for the supreme court and court of appeals; a district court judges nominating committee for each of the state's thirteen judicial districts; and a metropolitan court judges nominating committee for the Bernalillo County Metropolitan Court. For each judicial vacancy, the appropriate commission submits a list of at least two nominees. The governor may make one request for the submission of additional names. If a majority of the commission finds that there are other qualified candidates, the commission recommends those candidates. The governor must appoint one of the commission's nominees.

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The appellate judges nominating commission consists of fourteen members: the chief justice or the chief justice's designee; two court of appeals judges appointed by the chief judge of the court of appeals; one lawyer and one nonlawyer appointed by the governor, the speaker of the house of representatives, and the president pro tempore of the senate; the dean of the University of New Mexico law school, who serves as chair; and four lawyers appointed jointly by the president of the state bar and the judge members of the commission. The composition of each district court judges nominating committee is identical to that of the appellate judges nominating commission, except that the chief judge (or a designee) of the district in which the vacancy exists serves in place of one of the court of appeals judges. On the metropolitan court judges nominating committee, the three judge members are the chief justice (or a designee), the chief judge (or a designee) of the district in which the vacancy exists, and the chief judge (or a designee) of the metropolitan court. Lawyer and nonlawyer members of these committees must reside in the judicial district. Appointments to the judicial nominating commissions are to be made so that the state's two largest political parties are equally represented. The state bar president and the judge members may make additional appointments as necessary to fulfill this requirement. There are no established term lengths for commission members; the appointing authorities are asked each time a judicial vacancy occurs whether the members of the relevant commission should be retained or replaced. Nominating commission rules are included as addenda to Article VI of the New Mexico Constitution. Nominating Commission Costs: $6000 per commission (2007) New York In 1977, New York voters approved a constitutional amendment calling for merit selection of judges of the state’s highest court, the court of appeals. When a vacancy occurs on the court of appeals, the commission on judicial nomination submits the names of three to seven candidates to governor, who appoints one of the candidates to fill the vacancy. The governor’s appointee must then be confirmed by the senate. Unlike most merit selection systems, judges do not run in retention elections to keep their seats. Instead, upon the expiration of their terms, they must reapply to the commission on judicial nomination and be considered along with other applicants. The commission on judicial nomination consists of twelve members: four chosen by the governor, four chosen by the chief judge of the court of appeals, and one each chosen by the president pro tem of the senate, the speaker of the assembly, the minority leader of the senate, and the minority leader of the assembly. The governor and the chief judge are each required to appoint two lawyers and two nonlawyers, and no more than two of each official’s appointees may be members of the same political party. Commission members serve four-year terms. Click here for the statute addressing the commission and here to view the commission's rules. Since 1975, New York governors have created judicial screening committees by executive order to nominate candidates for appointment to other judicial offices. The state judicial screening committee recommends candidates for the court of claims; departmental judicial screening committees nominate elected supreme court justices for designation as justices of the appellate division of the supreme court, and consider candidates to fill interim vacancies on the supreme court. County judicial screening committees evaluate applicants for interim vacancies on the county court, surrogate’s court, and family court. Since 1978, merit selection has been used to select judges of New York City’s criminal and family courts and to fill mid-term vacancies on the city’s civil court. Established by executive order, the mayor’s advisory committee on the judiciary evaluates applicants and nominates highly qualified candidates. The mayor may not appoint a judge who has not been nominated by the committee.

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North Dakota When a midterm vacancy occurs on the supreme court or the district court, the judicial nominating commission submits a list of between two and seven nominees to the governor. Within thirty days of receiving the list, the governor may fill the vacancy from the list of nominees, return the list and direct the commission to reconvene, or call a special election to fill the vacancy. The judicial nominating commission consists of six members. The governor, the chief justice, and the president of the State Bar Association of North Dakota each appoint two members, including one lawyer and one nonlawyer. Commission members serve three-year terms, and no member may serve more than two full terms. Oklahoma Whenever there is a vacancy on the supreme court, the court of criminal appeals, or the court of civil appeals, the judicial nominating commission submits a list of three nominees to the governor. The governor must appoint one of the nominees to fill the vacancy. The judicial nominating commission is composed of thirteen members. The governor appoints one non- lawyer member from each of Oklahoma's six congressional districts. No more than three may be of the same political party. The Oklahoma Bar Association elects one of its members from each congressional district. These commission members serve staggered six year terms. The remaining member--the member-at-large--is a non-lawyer selected by at least eight commission members. The member-at-large serves two years. Commission members select a chair who serves for one year. Rhode Island Established in 1994, the judicial nominating commission is composed of nine members. The governor appoints three lawyers and one nonlawyer of his or her choice. The governor also appoints five additional commission members, one from each of the following lists: at least three lawyers submitted by the speaker of the house; at least three lawyers and/or nonlawyers submitted by the senate majority leader; four nonlawyers submitted jointly by the speaker and the senate majority leader; at least three nonlawyers submitted by the minority leader of the house; and at least three nonlawyers submitted by the minority leader of the senate. Commission members serve four-year terms. Upon notification of a judicial vacancy, the commission publishes notices of judicial vacancies in a number of state newspapers. Interested candidates complete an extensive application. The commission selects candidates to be interviewed, solicits public comment, and conducts background checks. The commission then votes and submits the names of three to five candidates for each vacancy to the governor. The commission is charged with exercising "reasonable efforts to encourage racial, ethnic, and gender diversity within the judiciary." Nominating Commission Costs: $10,000 (2007) South Carolina Created in 1997, the judicial merit selection commission considers the qualifications and fitness of candidates for South Carolina courts. The commission is composed of ten members. Five members are appointed by the speaker of the house of representatives; of these five, three must be serving members of the general assembly and two must be selected from the general public. Three members are appointed by the chairman of the senate judiciary committee and two members are appointed by the president pro tempore of the senate; of these appointments, three must be serving members of the general assembly and two must be selected from the general public. The judicial merit selection commission publishes upcoming judicial vacancies, including judgeships where incumbent judges are being screened for reelection. Individuals who wish to be considered for a

50 judicial vacancy file with the commission. The commission investigates each candidate's background, conducts a personal interview with each candidate, and administers an exam on court procedure to each candidate (except retired judges). The commission receives assistance in screening judicial candidates from two sources: the South Carolina Bar's judicial qualifications committee and a citizens committee on judicial qualifications: • The judicial qualifications committee of the South Carolina Bar is responsible for interviewing bar members who have knowledge of the candidates' professional experience, ability, character, and other qualifications. The candidates provide personal information and complete a confidential interview process with the judicial qualifications committee. A report is then prepared, discussed, voted on, and issued, indicating whether the candidate meets or does not meet established criteria for judicial selection. In addition, the judicial merit selection commission invites all members of the South Carolina Bar to return questionnaires on the performance and qualifications of sitting judges and attorneys running for judicial vacancies. • There are five geographically-based citizens committee on judicial qualifications in South Carolina that screen candidates for judgeships in their respective regions. Citizens committees were created out of a desire for "broad-based grassroots participation" in judicial selection. The chairman of the judicial merit selection commission selects no more than eight members for each committee, and is expected to ensure that a wide range of interests is represented on each committee. The committee investigates and conducts personal interviews with each candidate, and interviews individuals who are familiar personally and/or professionally with each candidate. Once the screening process is complete, the judicial merit selection commission prepares a formal report summarizing the qualifications of each candidate, classifying each candidate as qualified or not qualified, and nominating up to three individuals for each judicial vacancy. At this point, nominees are free to seek the support of general assembly members, and legislators are free to give pledges of support. A joint assembly is then scheduled to elect a nominee to fill each vacancy. South Dakota In addition to investigating complaints against judges, the judicial qualifications commission recommends to the governor nominees to fill all vacancies on the supreme court and mid-term vacancies on the circuit court. The commission submits at least two names to the governor for each vacancy, and the governor must appoint one of the commission's nominees. The judicial qualifications commission has seven members. Two circuit court judges are elected by the judicial conference; three lawyers, no more than two of whom may be members of the same political party, are appointed by the president of the State Bar of South Dakota; and two nonlawyers, not of the same political party, are appointed by the governor. Commission members serve four-year terms and may not serve more than two terms. Tennessee For all vacancies on the state's appellate courts and for interim vacancies on the trial courts, the judicial nomination commission holds a public meeting where lawyers and laypersons offer suggestions for (or objections to) possible nominees. Following the public meeting, possible nominees are investigated by the commission and interviewed individually. Following the interviews, the commission selects three nominees for recommendation to the governor. All of the commission's interviews, meetings, and deliberations are open to the public. For appellate vacancies, the governor may reject the first panel of nominees and request a second panel, and s/he may select a nominee from either the first or second panel. For trial court vacancies, the governor must select from the first panel of nominees. If the commission does not provide a list of three nominees within 60 days of the notice of vacancy, the governor may appoint a qualified individual to fill the vacancy.

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The commission is composed of seventeen members, including at least ten lawyers and at least one non- lawyer. Eight members are appointed by the speaker of the senate, and eight members are appointed by the speaker of the house. Of the members appointed by each legislative leader, at least five must be lawyers and two must reside in each of the state's three grand divisions. The seventeenth member, who must be a non-lawyer, is appointed jointly by the speakers of the senate and house. The speakers are required to make the appointments "with a conscious intention of selecting a body that reflects diversity with respect to" race, gender, and representation of both rural and urban areas. Citizens may apply to be considered for appointment to the nominating commission. Commission members must be at least 30 years old and citizens of the state for at least five years, and they serve staggered six-year terms. Nominating Commission Costs: $23,659 (2006); $26,018 (2005); $21,333 (2004) Utah There are nine judicial nominating commissions in Utah: one for the appellate courts and one for the district and juvenile courts in each of the state's eight judicial districts. Each judicial nominating commission is composed of eight members. The governor appoints seven members, including at least two lawyers and no more than four nonlawyers, and the chief justice or a designee of the chief justice serves as a nonvoting member. No more than four members of each commission may be members of the same political party, and commission members must reside in the judicial district they serve. Commission members are limited to a single, four-year term. When a vacancy occurs on the supreme court or court of appeals, the appellate court nominating commission screens applicants for the vacancy and submits the names of between five and seven nominees to the governor. For vacancies on the trial courts, the appropriate commission compiles a list of three to five nominees. The governor must appoint a nominee to fill the vacancy within thirty days, and the senate must confirm or reject the appointment within sixty days. Nominating Commission Costs: $1000 per commission (2007) Vermont The judicial nominating board was created in 1966 to nominate judges of the supreme, superior, and district courts. The board consists of eleven members: the governor appoints two nonlawyers; the house and the senate each elect two nonlawyers and one lawyer (not all of whom may be members of the same party) from their members; and attorneys admitted to practice before the Vermont Supreme Court elect three lawyers. Board members serve two-year terms; the governor's appointees may serve no more than three terms; all other members may serve no more than three consecutive terms. Board members elect a chair to a two-year term. When a judicial vacancy occurs, the judicial nominating board submits to the governor the names of as many persons as it deems qualified for appointment. For more information, see Judicial Merit Selection: Current Status. The joint committee on judicial retention reviews a judge's performance during the previous term and recommends to the general assembly whether the judge should be retained. The committee consists of four house members appointed by the speaker of the house and four senate members appointed by the committee on committees. During the review process, the committee conducts an initial interview with the judge, followed by a public comment hearing and a final committee hearing. The committee arrives at a recommendation by majority vote and prepares a report for the joint assembly of the general assembly. There is an opportunity for open debate and discussion, after which the assembly votes by secret ballot. In conjunction with the judicial retention committee's review, the legislative council sends a survey to attorneys, assistant judges, and nonlawyers who appeared before the judge during the previous term. The survey results are made available to both the judge and the public. Nominating Commission Costs: $2500 (2007)

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Wyoming The judicial nominating commission considers applicants for vacancies on the supreme court, district court, and circuit court, and submits the names of three nominees to the governor. The governor must appoint a judge from the commission's list. The commission consists of seven members and is chaired by the chief justice. Three additional members are elected by the Wyoming State Bar and must be active attorneys in the state. The remaining three members are nonlawyers appointed by the governor. No more than two members of the commission may be residents of the same judicial district. When a vacancy occurs on a district or circuit court and that district or county is not represented on the commission, one lawyer and one nonlawyer from the district or county are appointed as temporary, nonvoting advisors. Commission members serve staggered four-year terms and are not eligible for a second term. Nominating Commission Costs: $15,000 biennially (2007)

This is the list of state by state “Methods of Judicial Selection: Judicial Nominating Commissions” http://www.judicialselection.us/judicial_selection/methods/judicial_nominating_commissions.cfm?state

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Judicial Performance Evaluations (Source: American Judicature Society) Alaska At the first general election held more than three years after they take office, Alaska judges run in retention elections. Judges' names are placed on a nonpartisan ballot, and voters are asked whether each judge should be retained in office. Judges must receive a majority of affirmative votes to be retained. Thereafter, judges stand for retention at the end of their terms. Since 1976, the Alaska Judicial Council has evaluated the performance of judges standing for retention and provided evaluation information and recommendations to voters. Evaluations are based on surveys of attorneys, peace and probation officers, social workers, court employees, and jurors, as well as investigative materials specific to each judge and public input. A study of retention election outcomes by the American Judicature Society reported that Alaska voters take the judicial council's ratings into account. Data on judicial retention elections from 1976 to 1996 showed that, on average, the higher the judge's rating, the higher his or her affirmative vote percentage. Click here for the executive summary of this study. Arizona Arizona is the only state with a constitutionally authorized judicial performance evaluation program. Proposition 109, which was approved by the voters in 1992, required the establishment of a process to review judges' performance. Judicial performance review has two purposes: to provide the public with information about judges who are standing for retention and to encourage judicial self-evaluation and improvement. Judges are evaluated pre-election and mid-term. The thirty-member commission on judicial performance review includes lawyers, judges, and members of the public. The commission surveys those who have come into contact with judges, including litigants, witnesses, jurors, court staff, attorneys, and other judges. A public input survey is also available. Judges are evaluated on such criteria as legal ability, integrity, judicial temperament, communication skills, and administrative performance. Based on survey information, commission members vote on whether a judge "meets" or "does not meet" judicial performance standards. Judges also complete self-evaluation surveys and meet with conference teams composed of a judge, an attorney, and a member of the public to discuss their performance review. The results of pre-election performance reviews are mailed to voters and made available at public centers such as libraries, banks, and grocery stores. Colorado In 1988, the general assembly established judicial performance commissions throughout the state to provide voters with information about the performance of judges seeking retention. There is a state commission on judicial performance that evaluates appellate court judges standing for retention, and there are commissions in each judicial district that evaluate district and county court judges. Each commission is composed of ten members, including four lawyers and four nonlawyers. Evaluations of district and county court judges are based on questionnaires completed by those who have come into contact with the judge, including attorneys, litigants, jurors, crime victims, law enforcement personnel, social services caseworkers, probation officers, and court personnel. Trial judge evaluations also incorporate relevant docket and sentencing statistics, an interview with the judge, a self-evaluation completed by the judge, and information from other appropriate sources. Evaluations of appellate judges are based on interviews with the state commission on judicial performance and surveys of attorneys and trial court judges. Each evaluation includes a narrative profile with a "Retain," "Do Not Retain," or "No Opinion" recommendation. Evaluation results are available on the judicial branch web site. In 2008, legislation was passed calling for both midterm and retention-year evaluations of judges and creating the office of judicial performance within the judicial department. The legislation also specifies

54 the criteria on which judges are to be evaluated and requires the inclusion of certain information in judges' written evaluations. Connecticut The judicial selection commission evaluates incumbent judges who seek reappointment to the same court and forwards to the governor the names of those who are recommended for reappointment. District of Columbia In addition to having the authority to remove D.C. judges from office, the judicial disabilities and tenure commission evaluates judges seeking reappointment. At least six months prior to the expiration of a judge's term, the judge must file a notice of intent with the commission if the judge is seeking reappointment. The commission must then submit to the president at least sixty days prior to the expiration of the judge's term a written evaluation of the judge's performance in office and fitness for reappointment. The commission accepts comments from the public, the bar, court personnel, and other judges in developing its evaluation. Judges who are rated "well qualified" by the commission are automatically reappointed. Judges found to be "qualified" may be appointed by the president for an additional term, subject to senate confirmation. If the president chooses not to reappoint a judge, or if the commission finds a judge "unqualified," the president appoints a judge from a list compiled by the judicial nomination commission. Like the judicial nomination commission, the judicial disabilities and tenure commission consists of seven members who serve six year terms. The President appoints one member to the commission, the Board of Governors of the D.C. Bar appoints two lawyer members, the Mayor of D.C. appoints one lawyer and one nonlawyer member, the D.C. Council appoints one nonlawyer member, and the chief judge of the U.S. District Court for the District of Columbia appoints an active or retired D.C. federal judge. Commission members may not be nominated to D.C. judgeships within two years of leaving the Commission. Kansas In 2006, the Kansas legislature established the commission on judicial performance. The commission consists of seven lawyer members and six non-lawyer members appointed by the Kansas Judicial Council. Beginning in 2008, the commission will conduct evaluations of all Kansas judges and provide judges with the results in order to promote self-improvement. For judges who are standing for retention during the years they are evaluated, the results of the evaluation and a recommendation regarding retention will be made public. Missouri In 2008, Missouri's supreme court amended its rules to establish a judicial performance evaluation program for judges included in the Nonpartisan Court Plan. The appellate judicial evaluation committee consists of two lawyer and two non-lawyer members from each court of appeals district, and each circuit judicial evaluation committee consists of six lawyer and six non-lawyer members who reside in that circuit. Evaluation committee members are appointed by the Missouri Bar's board of governors from nominations by board members, local and regional bar associations, and non-laywer citizens. Committee members serve six-year, staggered terms. The committees recommend whether or not judges should be retained and provide reasons for the recommendations. The committees' recommendations are based on surveys of lawyers and jurors, information on time standards, and published opinions. New Mexico The judicial performance evaluation commission was created in 1997 to improve judicial performance and to provide voters with information about judges standing for retention. Judges are evaluated at the

55 midpoint of their terms and before each retention election. Evaluations are based on a self-assessment, surveys of those who have come into contact with the judge, and a personal interview. For appellate court judges, surveys are sent to lawyers, law clerks, law professors, court staff, and other judges. Surveys for trial court judges are sent to lawyers, jurors, court staff, and resource personnel, such as law enforcement officers, probation officers, and social workers. Midterm evaluation reports are not released to the public, but evaluations conducted prior to retention elections are posted on the commission's web site, published in state newspapers, and made available at county clerk offices. Oklahoma In 1997, Chief Justice Yvonne Kauger created the commission on independent evaluation of the judiciary, also known as the Oklahoma judicial evaluation commission. With the assistance of the Oklahoma Bar Association, the commission surveyed attorneys who had appeared before appellate judges in the months prior to the 1998 judicial elections. Attorneys evaluated judges on thirteen judicial traits, assigning them a grade of A, B, C, D, or F. The results were made available in the Oklahoma Bar Journal. No survey was conducted in 2000 and the commission was dissolved in 2001. South Carolina The South Carolina Bar conducts judicial evaluation surveys of judges who have completed all or one half of their current terms. Tennessee A judicial performance evaluation process was established in 1994 to assist the public in making informed decisions regarding retention elections for appellate judges. The judicial performance evaluation commission evaluates incumbent judges who are standing for retention and makes a recommendation either "for retention" or "for replacement." Evaluations are based on the following criteria: integrity, knowledge and understanding of the law, ability to communicate, preparation and attentiveness, service to the profession, and effectiveness in working with other judges and court personnel. In developing its recommendations, the commission relies heavily on surveys that are distributed to judges, lawyers, and other court employees, and on personal interviews with judges. The judicial performance evaluation commission is composed of nine members. The judicial council appoints five members, including three state court judges, one lawyer, and one non-lawyer. The speakers of the senate and the house each appoint one lawyer and one non-lawyer. The appointing authorities are required to make appointments that approximate the population of the state with respect to race and gender. Members serve six-year terms, and may serve up to two terms. Utah Utah's performance evaluation program was initiated in 1986 to provide the public with the necessary information to make informed decisions in judicial retention elections and to provide judges with information for self improvement. For more than 20 years, the judicial council administered the program, but in 2008, the judicial performance commission was created. The thirteen-member commission includes both lawyers and nonlawyers appointed by legislative leaders, the governor, and the supreme court. Performance evaluations are conducted every two years. Evaluations are based on surveys of attorneys who have appeared before the judge during the previous two years. Attorneys are asked to rate judges on a variety of criteria and to indicate whether the judge should be retained. Since 1997, evaluations of district court judges have also included surveys of jurors who appeared before the judge. Jurors are asked several yes/no questions. Based on survey results, the commission determines whether judges meet performance standards. The commission sends its recommendations regarding judges standing for retention to the lieutenant governor for inclusion in the voter information pamphlet. Information gathered for judicial self improvement is not made public.

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Virginia Virginia's judicial performance evaluation program was established by the general assembly in 2005. Evaluations were initially based solely on surveys completed by attorneys, but beginning in 2008, jurors and members of the department of social services and court services units also submit surveys. Evaluation reports for judges seeking reelection are provided to the chairmen of the house and senate committees for courts of justice. Reports are also provided to individual judges and a mentor or "facilitator" judge.

State by state list “Methods of Judicial Selection: Retention Evaluation Programs” http://www.judicialselection.us/judicial_selection/methods/judicial_performance_evaluations.cfm?state

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PUBLIC FINANCING OF JUDICIAL ELECTIONS

The North Carolina Experience and Beyond

While several states are examining public financing of judicial campaigns, North Carolina is the only one thus far with a track record. What follows is information on the North Carolina experience.

Public Campaign Financing: The North Carolina Judiciary (Source: Center for Governmental Studies)

In 2002, the state of North Carolina adopted a landmark judicial campaign finance reform law, enacting the North Carolina Judicial Campaign Reform Act (“the Act”), which created the North Carolina Public Campaign Fund (“the Public Campaign Fund”). The program provides full public financing for the general election campaigns of Court of Appeals and Supreme Court candidates who meet certain qualifications. After three elections in 2004, 2006 and 2008, candidates and the public are overwhelmingly positive about the Act. The program is widely considered a model for judicial campaign financing in other states. This report suggests a few adjustments to the program, which should be implemented in order to ensure its long-term viability.

The Public Campaign Fund is a fund established to insulate Court of Appeals and Supreme Court judges from the influence of contributors who may have an interest in cases before the judge. The program is administered by the State Board of Elections (“the Elections Board”).

The basic premise of the Act is straightforward. Candidates qualify by raising a set number of small contributions during the primary election, but they do not receive public funding for the primary (except to match high-spending opponents). Those who meet the program requirements and finish first or second in the primary receive a grant of public money in the general election. Through public financing, the candidates are freed from the pressures of fundraising and have more time to talk to voters about their qualifications and judicial philosophies. In addition, public financing programs play an important role in increasing the public’s confidence in their elected officials, and decreasing the perception that officials are indebted to large donors.

Participating candidates can raise up to $10,000 in “seed money” before opting into the program. Candidates for the Court of Appeals must raise at least $38,400 and not more than $76,800 in qualifying contributions during the primary election. Similarly, candidates for the Supreme Court must raise at least $40,050 and not more than $80,100 in qualifying contributions during the primary election. Candidates may only collect qualifying contributions from North Carolina registered voters in amounts from $10 to $500. In the general election, participating Court of Appeals candidates shall receive $160,000 in public funding, and participating Supreme Court candidates shall receive approximately $234,000. Participating candidates are prohibited from raising any additional money. The contribution limit for privately financed candidates is $1,000. Privately financed candidates must disclose their fundraising to the State Board of Elections, and once they raise 80 percent of the public funds grants, they are held to stricter reporting requirements.

Publicly financed candidates who are outspent by privately financed opponents or certain outside groups may receive additional “rescue funds” to ensure that they remain competitive. Rescue funds are available

74 during both the primary and general election phases, and they are limited to twice the expenditure limit of that race.

The Public Campaign Fund is supported by a $3 voluntary taxpayer check-off ($6 for couples), which does not increase an individual’s tax liability. The Public Campaign Fund is also supported by a $50 mandatory surcharge on the annual fee paid by attorneys to the State Bar, a government agency. In existence for only three election cycles, the Public Campaign Fund is a strong and effective way to finance judicial elections. Participation rates are high amongst candidates, and participating candidates have expressed their satisfaction with the program. The legislature and the Elections Board have both worked to address problems quickly and effectively. At the end of November 2008, the Public Campaign Fund had $2.8 million on hand after spending $1.2 million that year on two statewide voter guides and $1.9 million on grants to certified candidates. The Fund now collects about $4.6 million per election cycle from various sources.

Balancing the Scales analyzes the Act, the role of private money in judicial campaigns, the influence of outside groups, the ability of the Board to address problems as they arise and the effectiveness of the law itself in reducing conflicts of interest between contributors and judges. North Carolina’s Public Campaign Fund is generally working very well. The suggested reforms detailed below are related to bolstering the system and making it viable for the long-term:

1. Improve the Voluntary Taxpayer Check-Off Most of the program’s funding comes from taxpayers who voluntarily use the check-off to designate $3 from the state’s tax revenues to the Public Campaign Fund. On its own the check-off does not bring in enough money to cover the costs of the program both because participation is low and the check-off amount is not adjusted for inflation. Over the long- term, North Carolina could change the check-off from opt-in to opt-out, provide funding for unmarked check-offs, or fund the program directly from the general fund.

2. Revise the Trigger for Matching Funds Publicly financed candidates who run against privately financed candidates can potentially raise or spend more money than their opponents because of a loophole in the “trigger for matching funds.” The legislature should revise this formula to eliminate the bias.

3. Expand Public Funding to the Primary Election Ideally, the program should provide public funds in the primary election as well as in the general election. By providing public funds only in the general election, the Public Campaign Fund does not completely insulate candidates from private contributors who may seek preferential treatment from judges through contributions in primary elections. This reform, however, could be costly and would require the legislature to redesign the process of qualifying for public money and would likely require that other aspects of the program be redesigned, including the funding mechanism. The reforms would help more qualified candidates without a network of contributors to run for office and help eliminate the perceived or actual influence of campaign contributors on judicial decisions.

4. Adjust Program Funding Sources for Inflation Taxpayer check-offs, the attorney surcharge and public funds grants to candidates should be adjusted for inflation. The money distributed to candidates is not adjusted for inflation, but is pegged to a surrogate for inflation, candidate filing fees, which are in turn pegged to the salaries

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of judges. Those salaries do not automatically adjust according to the cost of living, but rather they only change through legislative action.

To view the entire report, please visit: http://www.cgs.org/images/publications/cgs_nc_judg_061709.pdf

Campaign Financing – North Carolina (source: American Judicature Society) The National Institute on Money in State Politics tracks contributions to state high court candidates. Click here for information from the most recent election cycle. Passed in 2002, the Judicial Campaign Reform Act establishes limits of $1,000 on individual and PAC contributions to judicial candidates. Family members may contribute up to $2,000. Limits are per candidate per election. Contributions from corporations are prohibited. The Judicial Campaign Reform Act also gives candidates for the supreme court and the court of appeals the option of public financing if they agree to strict fundraising and spending limits. Supreme court candidates could receive as much as $600,000 in the general election and $137,000 of "rescue" funds in the primary if a non-participating candidate or independent group tries to outspend them. Funding is much lower if opposing candidates also accept public funds. Funds for the Public Campaign Elections Fund will come from two voluntary sources: a $50 surcharge on the annual dues that attorneys pay to the state bar and a voluntary $3 state income tax checkoff. Passage of the act resulted from the efforts of a broad coalition of groups and individuals known as North Carolina Voters for Clean Elections. Key organizational members of the coalition included the North Carolina Center for Voter Education, the League of Women Voters of North Carolina, the North Carolina Project of Democracy South (now Democracy North Carolina), and Common Cause/North Carolina. For more detailed information, please visit: http://www.judicialselection.us/judicial_selection/campaigns_and_elections/campaign_financing.cfm?stat e

Public Financing of Judicial Campaigns Report of the Commission on Public Financing of Judicial Campaigns (Source: American Bar Association)

The ABA Commission on Public Financing of Judicial Campaigns was convened by the ABA Standing Committee on Judicial Independence in accordance with a directive from ABA House of Delegates in 1999 to examine the feasibility of public financing of judicial elections. The Commission’s honorary co- chairs are Hon. Howard Baker and Hon. Abner Mikva, its chair is D. Dudley Oldham of Houston, Texas, and its membership includes representatives from the League of Women Voters and the Conference of Chief Justices, as well as a number of ABA entities. Professor Charlie Geyh of Indiana University School of Law served as Reporter to the Commission. The Commission, which received substantial funding from the Joyce Foundation and additional support from the Open Society Institute, held three public hearings over the course of one year, heard from more than 25 witnesses and reviewed voluminous documents and reports.

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The Commission unanimously recommends that states that elect judges in contested elections finance judicial elections with public funds. In reaching this conclusion, the Commission recognizes that judicial elections are unique from elections for legislators and executives. These latter public officials are elected to be representative of and responsive to constituencies whereas judges are not representative officials but are responsive to the rule of law rather than constituencies. The Commission concludes that public financing of judicial elections will address the perceived impropriety associated with judicial candidates accepting private contributions from individuals and organizations interested in the outcomes of cases those candidates may later decide as judges. In support of its recommendation, the Commission makes several findings and offers several principles to help guide the development of a public financing scheme for judicial elections.

Primary Recommendation The Commission recommends that states which select judges in contested elections finance judicial elections with public funds, as a means to address the perceived impropriety associated with judicial candidates accepting private contributions from individuals and organizations interested in the outcomes of cases those candidates may later decide as judges.

Findings Regarding Judicial Elections 1. The Commission finds that the cost of judicial campaigns is escalating. 2. The Commission finds that to cover their election costs, judges must accept funds from contributors many of whom may be interested in the outcomes of cases before them. 3. The Commission finds that when campaign costs exceed contributions received, judges often take out loans to make up the difference. 4. The Commission finds that organizations interested in the outcomes of judicial elections often initiate advertising campaigns on behalf of or in opposition to a candidate, independent of the candidate’s own campaign. 5. The Commission finds that when judges make decisions that favor contributors, they may be accused of favoritism. 6. The Commission finds a pervasive public perception that campaign contributions influence judicial decision-making. 7. The Commission finds that judges are uncomfortable soliciting contributions, which may discourage outstanding judicial candidates from seeking or remaining in judicial office. 8. The Commission finds that qualified candidates who lack connections to wealthy contributors may be impaired in their ability to compete effectively for judicial office. 9. The Commission finds that when judges are required to campaign like political branch candidates, it contributes to the inappropriate politicization of the judiciary. 10. The Commission finds that the only significant public financing program for judicial campaigns implemented to date has not been adequately funded.

Principles in Support of Public Financing of Judicial Elections 1. Public financing programs must be sensitive to Constitutional limitations on states’ power to regulate judicial campaign finance. 2. Public financing programs should be designed to best suit the particular needs of a particular state or territory.

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3. Public financing programs are most suitable for primary and general election campaigns of high court judges, and in some cases, intermediate appellate judges. 4. Public financing programs should provide judicial candidates with full public funding in amounts sufficient to encourage participation. 5. Public financing programs should be restricted to serious candidates in contested elections who have met specified criteria indicating a certain level of support. 6. Public financing programs should be conditioned on the candidates’ agreement to forego private financing and to limit their use of public funds to legitimate campaign purposes. 7. States and territories should address the impact of independent campaign expenditures and recognize the impact of general issue advocacy on public financing programs. 8. Public financing programs should distribute funds in the form of bloc grants to candidates and should also provide voter guides to the electorate. 9. Public financing programs should be funded from a stable and sufficient revenue source. 10. Public financing programs should be administered by an independent and adequately staffed entity.

The recommendations were reviewed by the ABA Standing Committee on Judicial Independence after additional comments were received. A report with recommendations was submitted to the ABA House of Delegates, the ABA’s policy making body, and adopted at the ABA 2002 Midyear meeting in Philadelphia in February 2002.

To view the complete report, please visit: http://www.abanet.org/judind/pdf/commissionreport4-03.pdf

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JUDICIAL ELIGIBILITY COMMISSIONS JUDICIAL NOMINATING COMMISSIONS (Source: ABA Standards on State Judicial Selection)

Executive Summary In 1999, the American Bar Association Standing Committee on Judicial Independence established a Commission on State Judicial Selection Standards. The Commission was charged with drafting model standards for the selection of state court judges.

The work of the Commission was funded by a generous grant from the Open Society Institute. Commission members include representatives of the Standing Committee, the ABA Judicial Division, Conference of Chief Justices, Citizens for Independent Courts, League of Women Voters, and American Judicature Society. The Commission reviewed hundreds of documents and articles and heard testimony from fifteen experts, including judges, a state senator and a former governor, academics and a representative of the media.

Draft standards were widely circulated among ABA entities, bar associations, courts and other interested organizations. Comments were received and incorporated as the Commission members deemed appropriate. There was widespread support for the standards among ABA entities and they were adopted by the ABA House of Delegates on July 11, 2000, without opposition.

The ABA has supported and continues to support a merit-based appointive system for judicial selection sometimes referred to as “merit selection.” The standards are intended as a waypoint in the transition towards such a system. In a large majority of states judges stand for election either in partisan or non-partisan elections, although many judges initially reach the bench through an interim appointment process. Often voters in states that elect judges are faced with crowded ballots and little to no information about judicial candidates. There has in recent years been an alarming increase in efforts by special interests to influence the outcome of judicial elections through both financial contributions and attack campaigning. With this new wave of participation, voters are faced with partisan and often misleading information about the candidates. Given these realities, public trust and confidence in state court judicial systems will be enhanced if candidates qualified for judicial office are identified for the electorate and those responsible for filling interim vacancies.

The standards address two main questions: what are the qualifications needed for a state judge and what is the best method to assess those qualifications. The evaluation of a judicial aspirant’s qualifications by a neutral, non-partisan, credible, deliberative body is a key element of traditional appointment systems. By incorporating this crucial element into an election system, as well as bolstering the process in appointment systems, the standards strive to provide a fundamental shift in the selection process, without advocating an institutional change in state judicial selection methods. The creation of credible, deliberative, non-partisan bodies to evaluate the qualifications of all judicial aspirants, regardless of whether that person stands for election, is nominated through the appointment process, or reaches the bench through the interim appointment process, serves to assure the public that those judicial aspirants have met a threshold set of qualifications.

The standards are intended to apply to state trial and appellate judges in courts of general

79 jurisdiction, as well as judges in courts of limited jurisdiction such as those dealing in juvenile, family and probate matters. Excluded from the scope of the Standards are courts usually not of record, such as town or village courts, as well as administrative law judges.

The standards are presented in three parts. Part A sets forth detailed selection and retention criteria, while Part B identifies as primary actors those persons and groups that play significant roles in the process of judicial selection, either in appointive or elective based systems. Of the five designated primary actors, three are deliberative bodies identified as (1) Judicial Nominating Commissions, which exist in several states generally to provide nominations to the appointing authority; (2) Judicial Eligibility Commission, unique to these standards, which is a group formed to assess the qualifications of candidates in either elective systems or appointive systems where there is no existing nominating commission; and (3) Retention Evaluation Body, which evaluates judicial performance in judicial elections. The remaining two primary actors are identified as the Appointing Authority in appointive-based systems and the Endorsing Authority in states that provide for partisan election of judges. Part C recognizes the roles of various individual groups whose actions influence judicial selection. These include bar associations, judicial candidates, individual attorneys, public and private organizations and media interests.

What follows are the proposed standards for Judicial Qualification Commissions and Judicial Nominating Commissions:

Standard B.1: Judicial Eligibility Commission. To assist appointing authorities, endorsing authorities, and the electorate in achieving the goal of a qualified, inclusive, and independent judiciary, a credible, deliberative, bi-partisan body known as a Judicial Eligibility Commission should be created to review the qualifications of judicial candidates pursuant to recognized selection criteria.

(a) Independence. The Judicial Eligibility Commission should maintain its independence from all inappropriate influences, particularly from appointing and endorsing authorities, and should operate in a manner that instills public confidence and encourages applicants from a broad range of personal and professional backgrounds.

(b) Selection of Members and Commission Composition. Members of the Judicial Eligibility Commission should be selected by multiple sources, including, but not necessarily limited to, governors, legislatures, supreme courts, and bar associations. The Commission should be composed of both lawyer and public members, and their selection should be based on the personal qualities and integrity of the individual members.

(c) Open, Regularized, Confidential Process. The Judicial Eligibility Commission should establish rules and procedures for evaluating candidates for judicial office. Additionally, the Eligibility Commission should operate in an open, regularized fashion, while respecting the candidate’s desire for confidentiality.

(d) Screening and Recommendation of Candidates. A Judicial Eligibility Commission should give careful and equal consideration to each candidate for a judicial office, and should apply judicial selection criteria set forth in Part A to determine whether a candidate is qualified for judicial office. Only the names of those candidates found qualified by the commission should be published and placed on the list of qualified candidates and reported to the appointing or endorsing authority.

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(e) Commission Scope and Funding. The Judicial Eligibility Commission should be established and funded on a statewide basis. In larger or more populous states, regional commissions may be established but should be funded and operate under the aegis of a statewide commission.

Commentary A Judicial Eligibility Commission is intended to be a credible, deliberative body that operates pursuant to a recognized set of criteria to achieve the goal of a qualified, inclusive, and independent judiciary. No person should come to the bench, or be retained in judicial office, unless that person is found qualified by a Judicial Eligibility Commission or its equivalent. In a number of jurisdictions, the equivalent function is ably performed by judicial nominating commissions that have been established by state constitution, statute, or executive order. Where there is an effective judicial nominating commission in place , operating satisfactorily as credible, deliberative bodies, there is no need for a Judicial Eligibility Commission.(see Standard B.2).

It is of paramount importance that Judicial Eligibility Commissions should operate independently from other actors in the judicial selection process. Much like nominating commissions, the primary purpose of a Judicial Eligibility Commission is to assist appointing authorities, endorsing authorities, and the electorate in the selection of a qualified, inclusive, and independent judiciary. To facilitate this goal, a Judicial Eligibility Commission must be an independent body that expresses opinions about judicial candidates based on the commission’s independent findings. If the influence of politics colors its judgment, the commission loses the confidence of the citizenry.

Establishing the credibility and independence of a Judicial Eligibility Commission begins with the selection of commission members. Although there is no rigid model, the selection of judicial nominating commissioners is instructive. Like nominating commissions, Eligibility Commissions should be composed of both lawyer and public members. State bar associations typically choose lawyer members of nominating commissions either through election or direct appointment by bar leaders. Lawyer members are also chosen by state supreme courts in some jurisdictions. Governors and legislative bodies typically select public members. Thus, a core body of Commissioners might be selected as follows: --Governor selects two public members --Legislature selects two public members --Supreme Court selects two lawyer members --Bar Association selects three lawyer members

Once this core group of nine commissioners is selected, a chair should be appointed. The chair might be a current or former member of the judiciary. In order to enhance the diversity of the commission, the Governor may appoint a limited number of additional commissioners. The chair should vote only to break a tie. In states where it may be deemed necessary to augment the commission membership when filling vacancies in certain geographic districts, two additional commissioners might be added from the district, a public member selected by the Governor and a lawyer member selected by the Supreme Court.

Commissioners may serve for no more than two three-year terms, and the terms of commissioners should be staggered. Members of a commission who would otherwise be eligible to hold judicial office should not be a candidate for a judicial vacancy while they are members of the commission or for four years following the end of their term on the commission. All aspirants for judicial office in elective and appointive jurisdictions, including interim 81 judicial appointments, should be required to submit their names for review of their qualifications to the Judicial Eligibility Commission. The candidates may submit their names either on their own or through an endorsing or appointing authority. Individual commissioners may also recruit candidates for judicial vacancies pursuant to commission rules.

The commission should review the qualifications of candidates carefully and fairly to determine whether they are “qualified” for the particular judicial vacancy. The determination that a candidate is “qualified” should be based on the use of recognized judicial selection criteria. At a minimum, a candidate should not be rated “qualified” unless the candidate is found to have demonstrated these criteria.

Where the Judicial Eligibility Commission is reviewing the qualifications of sitting judges running for re-election or facing a retention election, the commission should consider the additional criteria listed in Standard A.2. In developing information on these candidates, the commission should consider the experience of bodies charged with the evaluation of judges facing retention elections (see Standard B.5). In particular, bar associations and other groups that conduct surveys of sitting judges should be consulted (see Standard C.1, Standard C.4, and Standard C.5). Surveys should be adequately funded to allow for a sound evaluation process. Only those candidates deemed “qualified” by the commission should be placed on the list of candidates to be sent to the appointing or endorsing authority.

The commission should adopt an initial set of rules and procedures that govern its operations. These should be disseminated widely, particularly to bar and media sources. Judicial Eligibility Commissions should be established and funded at the state level, with additional support from local governmental bodies where regional commissions are established. The funding should be sufficient to allow for adequate staffing and facilities.

Standard B.2: Judicial Nominating Commission. In performing its recruiting, screening, and nominating roles, a Judicial Nominating Commission should operate in an open, regularized, and independent manner that encourages applications from the widest segment of the potential candidate pool and that employs a process that fairly assesses all candidates by using a broad range of selection criteria in an effort to achieve a qualified, inclusive, and independent judiciary.

(a) Independence. A Judicial Nominating Commission should maintain its independence from all inappropriate influences, particularly from the appointing authority, and should operate in a manner that instills public confidence and encourages applicants from a broad range of personal and professional backgrounds.

(b) Selection of Members . Selection of members should be based on the personal qualities and integrity of the individual, and not a particular member’s propensity to vote for particular judicial candidates.

(c) Open, Regularized, Confidential Process. A Judicial Nominating Commission should establish rules and procedures for nominating candidates for judicial office. A Judicial Nominating Commission should operate in an open, regularized fashion that also respects the candidate’s desire for confidentiality.

(d) Recruitment of Candidates. Nominating commissions should actively recruit qualified individuals for judgeships and in performing this function should operate in a manner that imparts public confidence in the judicial selection system, and encourages a 82 broad range of applicants.

(e) Screening and Deliberation of Candidates. A Judicial Nominating Commission should give careful and equal attention to each candidate for a judicial office, and should apply selection criteria set forth in Part A in an effort to produce a qualified, inclusive, and independent judiciary.

(f) Communication With Appointing Authority. A member of a Judicial Nominating Commission should not initiate contact with the appointing authority while serving on a nominating commission.

Commentary Judicial Nominating Commissions serve a unique function. They are responsible for the nomination of judicial candidates in Nonpartisan Court Plan jurisdictions (also referred to as Missouri Plan or Merit Plan jurisdictions). Their role places them in the position of nominating individuals for judgeships. Thus, members of Judicial Nominating Commissions hold positions of public trust and should conduct themselves in a manner that reflects highly upon the judicial selection process. Whenever feasible the citizenry should be informed, updated, and included in the nomination process.

Among the states, nominating commissions vary in their structure, composition and organization. Some states use one commission to select all judges, while other states use separate commissions for different judicial levels or separate commissions in different geographical areas. Typically, nominating commissions include an even number of lawyers and persons who are not lawyers. Often the commission will also include a single judge who usually cannot participate in voting, but can be of assistance in the procedural process. The state chief executive branch official usually selects lay commissioners. Lawyer commissioners are normally selected by either the chief executive branch official, bar association leaders, state attorneys general, state supreme court judges, or a combination of the aforementioned. Some states require legislative approval of some or all of the commission members.

Independence is essential to the successful operation of a Judicial Nominating Commission. Independence in this instance means the freedom to recruit, screen, and nominate judicial candidates as the commission sees fit, apart from undue influences stemming from political, personal, social, or business considerations. Undue influence is a dominating inclination to nominate based on criteria other than those related to judicial ability, judicial independence, and judiciary representation.

Nominating commissions should respect the value of an independent judiciary. At various times, commissioners may be unduly influenced by political or personal considerations that compromise the objectivity and fairness of the nomination process. Thus, commissioners should endeavor to reduce all undue influences based on a judicial candidate’s political affiliations, an appointing authority’s political agenda, or the commissioner’s own political affiliations. If a commissioner, other commissioners, or a judicial candidate believes a commissioner’s independence may be unduly compromised by influences associated with a general conflict of interest or an appearance of impropriety, the affected commissioner should consider removing him/herself from involvement in the selection of nominees for a particular vacancy.

Commissions should operate in an open, regularized, independent manner that is sensitive to the need of the public for information on judicial candidates, while also respecting a 83 candidate’s desire for confidentiality concerning his/her personal information. Nominating commissions are responsible for investigating the personal and professional lives of the judicial candidates. Due to the sensitive nature of such information, individuals may be apprehensive about applying for judgeships. In an effort to reduce the fear candidates may have of exposing their private histories, commissioners should keep candidate information confidential. In some cases, commissions may even decide to keep the names of applicants anonymous. However, rules and procedures may require a waiver of confidentiality regarding disciplinary and legal proceedings concerning the judicial candidate.

Normally, each commission will select a chairperson. Usually this person is a state judge (generally a non-voting member of the commission), a voting committee member selected by the commission, or a rotating committee chairperson. The chairperson is usually the commission spokesperson. The spokesperson is the “outside voice” of the commission for purposes of communicating with media outlets, the citizenry, the candidates, and the appointing authority. Selecting a single person to represent the commission legitimizes the commission, and lessens the potential for disbursement of misinformation or unethical communications.

It is an accepted and unfortunate fact that all too often qualified judicial candidates will not actively seek judgeships. Hence, state law permitting, commissioners should actively seek out and encourage qualified individuals to apply. If the recruitment of a qualified individual jeopardizes the impartiality of a particular commissioner, the respective commissioner should be disqualified from either participating or voting and encourage the potential candidate to apply nevertheless.

To assist the recruitment process, these standards encourage the use of a published notice of judicial vacancy. The recruitment process should reflect the goal of achieving a qualified, inclusive and independent judiciary.

The screening and investigation process can vary greatly between jurisdictions. Part A addresses selection criteria and should be consulted. A commission should endeavor to design a selection system that is objective and fair. Particularly, a commission should be mindful of giving full consideration to lesser known, but highly qualified judicial candidates. Ultimately, a commission should screen and select candidates consistent with the goal described above.

Unless altered by state law or custom, the chairperson should normally submit an alphabetical list of the judicial nominees to the appointing authority. Unless altered by custom or state law, the list of nominees should contain only the names of the nominees without reference to political affiliation or commission preference.

Once the candidate names have been submitted, some states permit the appointing authority to contact and consult individual commissioners regarding the judicial nominees. At all times in the selection process, however, nominating commissions and commissioners should avoid “lobbying” appointing authorities in favor of particular judicial candidates. Many states require individual commissioners to disclose to the full commission any communication either with the appointing authority or as to private communication with judicial candidates.

To view the entire ABA Report entitled Standards on State Judicial Selection, visit: http://www.abanet.org/judind/downloads/reformat.pdf

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