Photo: Charleston Convention & Visitors Bureau
Conference Schedule 1 Education Schedule
Alphabetical List of Attendees 2 Geographical List of Attendees
Law in Popular Culture 3 Sunday, July 29, 2012 Signers’ Ballroom 2:00 p.m. - 3:30 p.m. Crisis in Court Funding 4 Monday, July 30, 2012 Signers’ Ballroom 8:30 a.m. - 9:30 a.m. Who’s Defending the Judiciary? 5 Monday, July 30, 2012 Signers’ Ballroom 9:30 a.m. - 11:00 a.m. Things to Think About When Planning an Imaging Project 6 Monday, July 30, 2012 Signers’ Ballroom & Planters Suite 12:15 p.m. - 1:15 p.m. Breakout Sessions: 2:30 p.m. & 3:25 p.m. Making a Case for Transition to Paper on Demand 7 Monday, July 30, 2012 Signers’ Ballroom 1:15 p.m. - 2:15 p.m. Breakout Sessions: 2:30 p.m. & 3:25 p.m. Protecting the Appellate Court 8 Tuesday, July 31, 2012 Signers’ Ballroom 8:00 a.m. - 9:30 a.m. Legacy of the Nuremburg Trials 9 Tuesday, July 31, 2012 Signers’ Ballroom 9:30 a.m. - 12:00 p.m. Conducting Effective Internal Investigations 10 Tuesday, July 31, 2012 Signers’ Ballroom 1:00 p.m. - 2:30 p.m. Accommodating Someone with a Visual Impairment 11 Tuesday, July 31, 2012 Signers’ Ballroom 2:45 p.m. - 4:00 p.m. iPad Technology 12 Wednesday, August 1, 2012 Lynch/Heyward Rooms 8:15 a.m. - 9:30 a.m. Technology and Ethics 13 Wednesday, August 1, 2012 Lynch/Heyward Rooms 2:00 p.m. - 3:15 p.m.
What’s Bugging You? (Members Only) 14 Thursday, August 2, 2012 Signers’ Ballroom 8:30 a.m. - 9:30 a.m. Women in the Judiciary: A Perspective 15 Thursday, August 2, 2012 Signers’ Ballroom 9:30 a.m. - 11:00 a.m.
CONFERENCE
SCHEDULE
Saturday, July 28, 2012 8:00 a.m. – 12:00 p.m. Executive Committee Meeting Robert E. Lee Room
2:00 p.m. – 5:00 p.m. Registration Middleton Room
Sunday, July 29, 2012 9:30 a.m. – 12:00 p.m. Registration Middleton Room
1:00 p.m. – 6:00 p.m. Silent Art Auction Rutledge Room
Welcome Meeting/Orientation for Families 10:30 a.m. – 11:00 a.m. Planters Suite For New Members & First Time Attendees
LUNCH ON YOUR OWN: 1 HOUR 20 MINUTES
12:20 p.m. – 12:30 p.m. Welcome Signers’ Ballroom
12:30 p.m. – 1:45 p.m. Roll Call of the States & Business Meeting (Session I) Signers’ Ballroom
BREAK: 15 MINUTES
Law in Popular Culture 2:00 p.m. – 3:30 p.m. [ ] Ms. Jennifer Thompson, Author Signers’ Ballroom -90- - Opperman Speaker - Picking Cotton
Book Signing – Picking Cotton 3:30 p.m. – 4:00 p.m. Signers’ Ballroom Ms. Jennifer Thompson, Author
BREAK: 2 HOURS 30 MINUTES
Reception Queen Street Gallery & 6:30 p.m. – 8:00 p.m. Hosted by Bloomberg BNA & NCACC Signers’ Ballroom
8:15 p.m. – 9:15 p.m. Silent Art Auction & Morgan Thomas Slideshow Signers’ Ballroom
9:30 p.m. – 12:00 a.m. Hospitality Room Opening Night
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REVISED JULY 16, 2012
CONFERENCE
Monday, July 30, 2012 7:30 a.m. – 8:30 a.m. Continental Breakfast (Members Only) Signers’ Ballroom
SCHEDULE Crisis in Court Funding -60- 8:30 a.m. – 9:30 a.m. Ms. Mary C. McQueen, President Signers’ Ballroom National Center for State Courts
Who’s Defending the Judiciary? Panel Discussion: Mr. Thomas D. Hall, Clerk (Moderator) Supreme Court of Florida Hon. David L. Baker, Former Justice Iowa Supreme Court -90- 9:30 a.m. – 11:00 a.m. Mr. Matt Berg, Deputy Director of State Affairs Signers’ Ballroom Justice at Stake Campaign Ms. Lisa Hall, APR, CPRC, Director of Publications SalterMitchell, Inc. Professor Penny J. White, Director Center for Advocacy and Dispute Resolution, University of Tennessee College of Law
LUNCH ON YOUR OWN: 1 HOUR 15 MINUTES
Things to Think About When Planning an Imaging Project -60- 12:15 p.m. – 1:15 p.m. Ms. Tiffany J. Shropshire, Archivist Signers’ Ballroom Supreme Court of Texas
Making a Case for Transition to Paper on Demand Ms. Catherine O’Hagan Wolfe, Esq., Clerk (Moderator) United State Court of Appeal for the Second Circuit -60- 1:15 p.m. – 2:15 p.m. Mr. Scott Bade, President Signers’ Ballroom ImageSoft, Inc. Ms. Michelle Telecky, Senior Business Analyst ImageSoft, Inc.
BREAK: 15 MINUTES
-50- 2:30 p.m. – 3:20 p.m. Breakout Session 1
A. What an Archivist Can B. Judging in a Paper on BREAK: 5 MINUTES Do For You Demand Court Planters Suite Signers’ Ballroom
-50- 3:25 p.m. – 4:15 p.m. Breakout Session 2 SESSIONS BREAKOUT
A Visit to the South Carolina Aquarium 6:30 p.m. – 10:00 p.m. Meet in Hotel Lobby Hosted by LexisNexis
10:00 p.m. – 12:00 a.m. Hospitality Room
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CONFERENCE
Tuesday, July 31, 2012 7:30 a.m. – 8:00 a.m. Continental Breakfast (Members Only) Signers’ Ballroom
SCHEDULE 7:30 a.m. – 8:00 a.m. Past Presidents’ Breakfast Planters Suite
Protecting the Appellate Court: What Appellate Court
Administrators Need to Know About Security and Why! -90- 8:00 a.m. – 9:30 a.m. Signers’ Ballroom Mr. Thomas F. Lorito, Senior Consultant National Sheriffs’ Association, The Community Safety Institute
Legacy of the Nuremburg Trials Professor Gregory S. Gordon, Director University of North Dakota Center for Human Rights and -50- 9:30 a.m. – 10:20 a.m. Genocide Studies Signers’ Ballroom Ms. Sandra Schulberg, daughter of original filmmaker Stuart Schulberg and Restoration Producer Nuremberg: Its Lesson For Today
BREAK: 10 MINUTES
-90- 10:30 a.m. – 12:00 p.m. Legacy of the Nuremburg Trials (continued) Signers’ Ballroom
LUNCH ON YOUR OWN: 1 HOUR
Conducting Effective Internal Investigations Mr. Jason M. Mayo, Labor & Employee Relations Officer -90- 1:00 p.m. – 2:30 p.m. Signers’ Ballroom Human Resources Division, Labor & Employee Relations Unit California Administrative Office of the Courts
BREAK: 15 MINUTES
Accommodating Someone with a Visual Impairment -75- 2:45 p.m. – 4:00 p.m. Ms. Lisamaria Martinez, Donor Relations Coordinator Signers’ Ballroom LightHouse for the Blind and Visually Impaired
Tour of Fort Sumter and Dinner Cruise 4:30 p.m. – 9:15 p.m. Meet in Hotel Lobby Hosted by West, a Thomson Reuters business
9:30 p.m. – 12:00 a.m. Hospitality Room
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CONFERENCE Wednesday, August 1, 2012 7:30 a.m. – 8:15 a.m. Continental Breakfast (Members Only) Lynch/Heyward Rooms
SCHEDULE -45- 7:30 a.m. – 8:15 a.m. Roundtable Discussions Lynch/Heyward Rooms
iPad Technology: Uses and Applications for a Modern
Judiciary Mr. Blake A. Hawthorne, Clerk [ ] 8:15 a.m. – 9:30 a.m. Lynch/Heyward Rooms -75- Supreme Court of Texas Mr. Rory L. Perry, Clerk Supreme Court of Appeals of West Virginia
Vendor Introductions & Opening of Vendor Show 9:30 a.m. – 10:00 a.m. Ms. Amy L. Reitz, Chief Deputy Clerk Lynch/Heyward Rooms Supreme Court of Ohio
10:00 a.m. – 1:50 p.m. Vendor Show Rutledge Room
Vendor Showcase/Community Outreach 10:00 a.m. – 1:50 p.m. Middleton Room LexisNexis
10:00 a.m. – 10:50 a.m. Vendor Showcase I
LT Court Tech, a Thomson Reuters business jAVS 1 Lynch/Heyward Rooms 2 Planters Suite
BREAK: 10 MINUTES
11:00 a.m. – 11:50 a.m. Vendor Showcase II
LT Court Tech, a Thomson Reuters business Wolters Kluwer Law & Business 1 Lynch/Heyward Rooms 2 Planters Suite
11:50 a.m. – 1:00 p.m. Vendor Lunch Lynch/Heyward Rooms
1:00 p.m. – 1:50 p.m. Vendor Showcase III
Thomson Reuters AMCAD 1 Lynch/Heyward Rooms 2 Planters Suite
BREAK: 10 MINUTES
Technology and Ethics: Moving Ahead and Avoiding Pitfalls -75- 2:00 p.m. – 3:15 p.m. Lynch/Heyward Rooms Mr. Charles E. Carpenter, Jr., Appellate Counsel Carpenter Appeals & Trial Support, LLC
3:15 p.m. – 4:00 p.m. Vendor Show (Continued) Rutledge Room
4:00 p.m. – 5:00 p.m. Vendor Happy Hour Lynch/Heyward Rooms
9:30 p.m. – 12:00 a.m. Hospitality Room
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CONFERENCE
Thursday, August 2, 2012 7:00 a.m. – 8:30 a.m. Fun Run/Walk Meet in Hotel Lobby
SCHEDULE 7:30 a.m. – 8:30 a.m. Continental Breakfast (Members Only) Signers’ Ballroom
What’s Bugging You? (Members Only) -60- 8:30 a.m. – 9:30 a.m. Mr. Kevin S. Smith, Administrator & Clerk (Moderator) Signers’ Ballroom Indiana Supreme Court, Court of Appeals, and Tax Court
Women in the Judiciary: A Perspective Panel Discussion: Ms. Irene M. Bizzoso, Prothonotary (Moderator) Supreme Court of Pennsylvania Hon. M. Kathleen Butz, Associate Justice -90- 9:30 a.m. – 11:00 a.m. California Court of Appeal, Third Appellate District Signers’ Ballroom Hon. Joan V. Churchill, Judge (Retired) Immigration Court for Arlington, VA President-Elect, National Association of Women Judges Hon. Kaye G. Hearn, Justice Supreme Court of South Carolina
11:00 a.m. – 12:00 p.m. Business Meeting (Session II) Signers’ Ballroom
12:00 p.m. – 12:15 p.m. Executive Committee Meeting
Conference Checkout 12:00 p.m. – 1:00 p.m. Please return nametags, binders, and supplies Middleton Room to be recycled for next year’s meeting
LUNCH ON YOUR OWN: 1 HOUR
Patriot’s Point 1:00 p.m. – 5:00 p.m. Golf Tournament Golf Course
5:00 p.m. – 9:00 p.m. Annual Banquet Signers’ Ballroom
9:00 p.m. – 12:00 a.m. Hospitality Room Awards Night
Friday, August 3, 2012 8:30 a.m. – 10:00 a.m. Critique Breakfast Planters Suite
Conference Checkout (continued) 10:00 a.m. – 11:00 a.m. Please return nametags, binders, and supplies Middleton Room to be recycled for next year’s meeting
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EDUCATION
SCHEDULE
Saturday, July 28, 2012 8:00 a.m. – 12:00 p.m. Executive Committee Meeting Robert E. Lee Room 2:00 p.m. – 5:00 p.m. Registration Middleton Room
Sunday, July 29, 2012 9:30 a.m. – 12:00 p.m. Registration Middleton Room Welcome Meeting/Orientation for Families 10:30 a.m. – 11:00 a.m. Planters Suite For New Members & First Time Attendees
LUNCH ON YOUR OWN: 1 HOUR 20 MINUTES 12:20 p.m. – 12:30 p.m. Welcome Signers’ Ballroom 12:30 p.m. – 1:45 p.m. Roll Call of the States & Business Meeting (Session I) Signers’ Ballroom BREAK: 15 MINUTES Law in Popular Culture 2:00 p.m. – 3:30 p.m. [ ] Ms. Jennifer Thompson, Author Signers’ Ballroom -90- - Opperman Speaker - Picking Cotton
Monday, July 30, 2012 Crisis in Court Funding -60- 8:30 a.m. – 9:30 a.m. Ms. Mary C. McQueen, President Signers’ Ballroom National Center for State Courts Who’s Defending the Judiciary? Panel Discussion: Mr. Thomas D. Hall, Clerk (Moderator) Supreme Court of Florida Hon. David L. Baker, Former Justice Iowa Supreme Court -90- 9:30 a.m. – 11:00 a.m. Mr. Matt Berg, Deputy Director of State Affairs Signers’ Ballroom Justice at Stake Campaign Ms. Lisa Hall, APR, CPRC, Director of Publications SalterMitchell, Inc. Professor Penny J. White, Director Center for Advocacy and Dispute Resolution, University of Tennessee College of Law
LUNCH ON YOUR OWN: 1 HOUR 15 MINUTES Things to Think About When Planning an Imaging Project -60- 12:15 p.m. – 1:15 p.m. Ms. Tiffany J. Shropshire, Archivist Signers’ Ballroom Supreme Court of Texas CONTINUED ON NEXT PAGE
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EDUCATION Monday, July 30, 2012 (continued) Making a Case for Transition to Paper on Demand
Ms. Catherine O’Hagan Wolfe, Esq., Clerk (Moderator) SCHEDULE United State Court of Appeal for the Second Circuit -60- 1:15 p.m. – 2:15 p.m. Mr. Scott Bade, President Signers’ Ballroom ImageSoft, Inc. Ms. Michelle Telecky, Senior Business Analyst ImageSoft, Inc. BREAK: 15 MINUTES
-50-
2:30 p.m. – 3:20 p.m. Breakout Session 1 A. What an Archivist Can B. Judging in a Paper on BREAK: 5 MINUTES Do For You Demand Court SESSIONS
BREAKOUT BREAKOUT Planters Suite Signers’ Ballroom -50- 3:25 p.m. – 4:15 p.m. Breakout Session 2
Tuesday, July 31, 2012 Protecting the Appellate Court: What Appellate Court Administrators Need to Know About Security and Why! -90- 8:00 a.m. – 9:30 a.m. Signers’ Ballroom Mr. Thomas F. Lorito, Senior Consultant National Sheriffs’ Association, The Community Safety Institute Legacy of the Nuremburg Trials Professor Gregory S. Gordon, Director University of North Dakota Center for Human Rights and -50- 9:30 a.m. – 10:20 a.m. Genocide Studies Signers’ Ballroom Ms. Sandra Schulberg, daughter of original filmmaker Stuart Schulberg and Restoration Producer Nuremberg: Its Lesson For Today BREAK: 10 MINUTES -90- 10:30 a.m. – 12:00 p.m. Legacy of the Nuremburg Trials (continued) Signers’ Ballroom LUNCH ON YOUR OWN: 1 HOUR Conducting Effective Internal Investigations Mr. Jason M. Mayo, Labor & Employee Relations Officer -90- 1:00 p.m. – 2:30 p.m. Signers’ Ballroom Human Resources Division, Labor & Employee Relations Unit California Administrative Office of the Courts BREAK: 15 MINUTES Accommodating Someone with a Visual Impairment -75- 2:45 p.m. – 4:00 p.m. Ms. Lisamaria Martinez, Donor Relations Coordinator Signers’ Ballroom LightHouse for the Blind and Visually Impaired
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EDUCATION EDUCATION Wednesday, August 1, 2012 -45- 7:30 a.m. – 8:15 a.m. Roundtable Discussions Lynch/Heyward Rooms iPad Technology: Uses and Applications for a Modern
Judiciary SCHEDULE Mr. Blake A. Hawthorne, Clerk [ ] 8:15 a.m. – 9:30 a.m. Lynch/Heyward Rooms -75- Supreme Court of Texas Mr. Rory L. Perry, Clerk
Supreme Court of Appeals of West Virginia Vendor Introductions & Opening of Vendor Show 9:30 a.m. – 10:00 a.m. Ms. Amy L. Reitz, Chief Deputy Clerk Lynch/Heyward Rooms Supreme Court of Ohio 10:00 a.m. – 1:50 p.m. Vendor Show Rutledge Room Vendor Showcase/Community Outreach 10:00 a.m. – 1:50 p.m. Middleton Room LexisNexis 10:00 a.m. – 10:50 a.m. Vendor Showcase I LT Court Tech, a Thomson Reuters business jAVS 1 Lynch/Heyward Rooms 2 Planters Suite BREAK: 10 MINUTES 11:00 a.m. – 11:50 a.m. Vendor Showcase II LT Court Tech, a Thomson Reuters business Wolters Kluwer Law & Business 1 Lynch/Heyward Rooms 2 Planters Suite 11:50 a.m. – 1:00 p.m. Vendor Lunch Lynch/Heyward Rooms 1:00 p.m. – 1:50 p.m. Vendor Showcase III Thomson Reuters AMCAD 1 Lynch/Heyward Rooms 2 Planters Suite BREAK: 10 MINUTES Technology and Ethics: Moving Ahead and Avoiding Pitfalls -75- 2:00 p.m. – 3:15 p.m. Lynch/Heyward Rooms Mr. Charles E. Carpenter, Jr., Appellate Counsel Carpenter Appeals & Trial Support, LLC
Thursday, August 2, 2012 What’s Bugging You? (Members Only) -60- 8:30 a.m. – 9:30 a.m. Moderator: Mr. Kevin S. Smith, Administrator & Clerk Signers’ Ballroom Indiana Supreme Court, Court of Appeals, and Tax Court Women in the Judiciary: A Perspective Panel Discussion: Ms. Irene M. Bizzoso, Prothonotary (Moderator) Supreme Court of Pennsylvania Hon. M. Kathleen Butz, Associate Justice -90- 9:30 a.m. – 11:00 a.m. California Court of Appeal, Third Appellate District Signers’ Ballroom Hon. Joan V. Churchill, Judge (Retired) Immigration Court for Arlington, VA President-Elect, National Association of Women Judges Hon. Kaye G. Hearn, Justice Supreme Court of South Carolina 11:00 a.m. – 12:00 p.m. Business Meeting (Session II) Signers’ Ballroom 12:00 p.m. – 12:15 p.m. Executive Committee Meeting
Friday, August 3, 2012
8:30 a.m. – 10:00 a.m. Critique Breakfast Planters Suite 3 of
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ALPHABETICAL LIST OF LIST ALPHABETICAL
Alphabetical List of Attendees
A
Debbie Autrey, Clerk ATTENDEES Texas Sixth Court of Appeals (TX) Tony Autrey
B
Julie Bagoye, Assistant Clerk/Administrator California Court of Appeal, Fifth Appellate District (CA)
David Beach, Clerk (Retired) Supreme Court of Virginia (VA) Susan Beach
Irene Bizzoso, Prothonotary Pennsylvania Supreme Court (PA)
Greg Block, Clerk United States Court of Appeals for Veterans Claims (DC) Maureen Block
Polly Brock, Chief Deputy Clerk Colorado Court of Appeals (CO)
Kristen Brown, Prothonotary Commonwealth Court of Pennsylvania (PA) Michael Brown
Colette M. Bruggman, Assistant Clerk/Administrator California Court of Appeal, Third Appellate District (CA) Bernie Bruggman
C Ron Carpenter, Clerk Washington State Supreme Court (WA) Carol Carpenter
Susan Clary, Clerk/Court Adminstator/General Counsel Supreme Court of Kentucky (KY) Nicolas Clary
Stuart Cohen, Clerk (Retired) New York Court of Appeals (NY)
Christine "Chris" Crow, Clerk Louisiana First Circuit Court of Appeal (LA) Brian Crow Janis Lasseigne
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OF LIST ALPHABETICAL D Corbin Davis, Clerk Michigan Supreme Court (MI) Paula Davis
Bill DeCicco, Clerk United States Court of Appeals for the Armed Forces (DC) Claudia DeCicco
F ATTENDEES Deena C. Fawcett, Clerk/Administrator California Court of Appeal, Third Appellate District (CA)
Pete Fitzgerald, Clerk Louisiana Fifth Circuit Court of Appeal (LA) Tani Fitzgerald
Eileen Fox, Clerk New Hampshire Supreme Court (NH)
Kris Frost, Clerk Supreme Court of Ohio (OH)
G Eydie Gaiser, Deputy Clerk West Virgina Supreme Court of Appeals (WV)
Paula Garcia, Assistant Clerk/Administrator California Court of Appeal, Fourth Appellate District, Division 2 (CA) David Garcia
George Geoghegan III, Clerk (Retired) Kentucky Court of Appeals (KY)
Carol Green, Clerk Kansas Supreme Court and Court of Appeals (KS)
Carolyn Grosboll, Clerk Illinois Supreme Court (IL) Allen D. Grosboll John Grosboll
H New Member M. C. Hackney, Assistant Clerk First Time Attendee Supreme Court of North Carolina (NC)
Tom Hall, Clerk Florida Supreme Court (FL) Lisa Hall Matt Hall
Veronica Handy, Clerk Supreme Court of the Virgin Islands (VI) Hugh M. Smith, Jr.
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Carol Anne Harley, Clerk OF LIST ALPHABETICAL Texas Ninth Court of Appeals (TX) Richard Harley
Trish Harrington, Clerk Supreme Court of Virginia (VA)
Blake Hawthorne, Clerk Supreme Court of Texas (TX)
Victoria Hernandez, Assistant Clerk/Administrator (Retired)
California Court of Appeal, Fifth Appellate District (CA) ATTENDEES
New Member Greg Hilton, Chief Deputy Clerk First Time Attendee Maryland Court of Special Appeals (MD) Kathleen Hilton
Jack Hilton
Ed Hosken, Chief Deputy Clerk (Retired) United States Court of Appeals - Federal Circuit (VA) Daphne Hosken
Petra Hulm, Chief Deputy Clerk North Dakota Supreme Court (ND) Jason Hulm
Donna M. Humpal, Clerk of Iowa Supreme Court and Court of Appeals Iowa Supreme Court and Court of Appeals (IA) Michael Pash Madeleine Humpal-Pash Isabelle Humpal-Pash Benjamin Humpal-Pash
K Steve Kelly, Clerk/Administrator California Court of Appeal, Fourth Appellate District (CA)
Kathleen Kempley, Chief Deputy Clerk (Retired) Arizona Supreme Court (AZ) Rhonda Dorsett Ryan Dorsett Jack Dorsett Beth Dorsett
New Member Jenny Abbott Kitchings, Clerk First Time Attendee South Carolina Court of Appeals (SC)
Marsha Klinker, Internal Operations Administrator (Retired) Arizona Supreme Court (AZ) Kebbie Soleo Paul Morgan
L Steve Lancaster, Administrator Court of Appeals of Indiana (IN) Pauline Lancaster
Kevin J. Lane, Assistant Clerk/Administrator California Court of Appeal, Fourth Appellate District, Division 1 (CA) Jeff Love PAGE 3 OF 7
OF LIST ALPHABETICAL Joseph Lane, Clerk/Administrator California Court of Appeal, Second Appellate District (CA) Nelda Lane Robert Lane Andrew Lane Peter Lane Allison Lane
Tracie Lindeman, Clerk Nevada Supreme Court (NV)
Callen Aten ATTENDEES Camryn Aten
Terry Lord, Clerk Missouri Court of Appeals, Western District (MO)
Kathy Lord Terry Lord, Jr. Kristin Roques Lord
Cathy Lusk, Clerk Texas Twelfth Court of Appeals (TX) Mike Lusk
M Marilyn May, Clerk Alaska Appellate Courts (AK) Jim Lawlor
Karinne McCullough, Clerk Texas First Court of Appeals (TX) Bill McCullough
Paul McGill, Assistant Clerk/Administrator California Court of Appeal, Second Appellate District, Division 6 (CA)
New Member Frank McGuire, Clerk/Administrator First Time Attendee Supreme Court of California (CA)
Kelly McNeely, Clerk Lousiana Third Circuit Court of Appeal (LA) Robin McNeely
Reba Mims, Clerk (Retired) South Carolina Court of Appeals (SC) Joan Creed
Susan Morley, Chief Deputy Clerk Florida Supreme Court (FL)
John Moyer, Deputy Prothonotary Commonwealth Court of Pennsylvania (PA) Linette Burd Savannah Moyer
N Mark Neary, Clerk Supreme Court of New Jersey (NJ) Allison Neary
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ALPHABETICAL LIST OF LIST ALPHABETICAL O Fritz Ohlrich, Clerk (Retired) Supreme Court of California (CA) Mary Holland
John Olivier, Clerk Louisiana Supreme Court (LA) Terry Olivier Jeff Olivier Emily Olivier
ATTENDEES Aida Oquendo-Graulau, Clerk Supreme Court of Puerto Rico (PR) Manuel Aponte Rosario
P Denise Pacheco, Clerk Texas Eighth Court of Appeals (TX)
Louise Pearson, Clerk Texas Court of Criminal Appeals (TX) Taiylor Tedford Harley Crumley
Jim Pelzer, Clerk (Retired) NYS Appellate Division, 2nd Department (NY) Ellen Pelzer
Rory Perry, Clerk West Virgina Supreme Court of Appeals (WV) Rene Margocee Connie Johnson
Corrine Pochop, Assistant Clerk/Administrator California Court of Appeal, Sixth Appellate District (CA)
Chris Prine, Clerk First Time Attendee Texas Fourteenth Court of Appeals (TX) Mary-Jo Prine
R Dorian Ramirez, Clerk Texas Thirteenth Court of Appeals (TX) Fred Ramirez
Cynthia Rapp, Deputy Clerk Supreme Court of the United States (DC) James Fletcher Alex Fletcher
Amy Reitz, Chief Deputy Clerk Supreme Court of Ohio (OH)
Rex Renk, Deputy Clerk Montana Supreme Court (MT)
Lillian Richie, Clerk/Judicial Administrator Louisiana Second Circuit Court of Appeal (LA) Vernon Richie PAGE 5 OF 7
OF LIST ALPHABETICAL Laura Roy, Clerk Missouri Court of Appeals, Eastern District (MO) Ronnie Roy Andrew Roy
S Danielle Schott, Clerk Lousiana Fourth Circuit Court of Appeal (LA) Charles Ponder, III
Chase Ponder ATTENDEES
Dan Shearouse, Clerk Supreme Court of South Carolina (SC) Rebecca Shearouse Katie Shearouse
Danielle Shearouse Jennifer Shearouse Barrett Beasley
Danielle Sheff, Deputy Administrator Court of Appeals of Indiana (IN) Andrew Sheff
New Member Tiffany Shropshire, Archivist Supreme Court of Texas (TX)
Sandra L. Skinner, Clerk Missouri Court of Appeals, Southern District (MO) Dennis E. Budd
Kevin Smith, Clerk/Administrator Indiana Supreme Court (IN)
Ed Smith, Clerk Montana Supreme Court (MT)
Heather Smith, Deputy Clerk of Courts Indiana Supreme Court (IN) Erwin Susara Dobbie Smith Timothy Smith
Brad Sonego, Deputy Clerk Supreme Court of Texas (TX)
Debra Spisak, Clerk Texas Second Court of Appeals (TX) Jim Spisak Andrew Spisak
Mac Squires, Clerk/Judicial Advisor United States Army Court of Criminal Appeals (VA) Kathy Squires
Les Steen, Clerk Arkansas Supreme Court (AR)
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Bill Suter, Clerk OF LIST ALPHABETICAL Supreme Court of the United States (DC) Jeanie Suter Ashley Suter
T New Member Carol Thompson, Clerk First Time Attendee Wyoming Supreme Court (WY)
New Member Jakob Trierweiler, Operations Manager
First Time Attendee Arizona Court of Appeals, Division I (AZ) ATTENDEES
W Sherry Williamson, Clerk Texas Eleventh Court of Appeals (TX)
Ruth Willingham, Clerk Arizona Court of Appeals, Division I (AZ) Warren Willingham
Catherine O'Hagan Wolfe, Clerk United States Court of Appeals for the Second Circuit (NY) Y Mike Yerly, Clerk/Administrator California Court of Appeal, Sixth Appellate District (CA)
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OF LIST GEOGRAPHICAL
Geographical List of Attendees
Alaska ATTENDEES Marilyn May, Clerk Alaska Appellate Courts (AK) Jim Lawlor
Arkansas Les Steen, Clerk Arkansas Supreme Court (AR)
Arizona Kathleen Kempley, Chief Deputy Clerk (Retired) Arizona Supreme Court (AZ) Rhonda Dorsett Ryan Dorsett Jack Dorsett Beth Dorsett
Marsha Klinker, Internal Operations Administrator (Retired) Arizona Supreme Court (AZ) Kebbie Soleo Paul Morgan
Ruth Willingham, Clerk Arizona Court of Appeals, Division I (AZ) Warren Willingham
New Member Jakob Trierweiler, Operations Manager First Time Attendee Arizona Court of Appeals, Division I (AZ)
California New Member Frank McGuire, Clerk/Administrator First Time Attendee Supreme Court of California (CA)
Fritz Ohlrich, Clerk (Retired) Supreme Court of California (CA) Mary Holland
Joseph Lane, Clerk/Administrator California Court of Appeal, Second Appellate District (CA) Nelda Lane Robert Lane Andrew Lane Peter Lane Allison Lane
Paul McGill, Assistant Clerk/Administrator California Court of Appeal, Second Appellate District, Division 6 (CA) PAGE 1 OF 7
OF LIST GEOGRAPHICAL Deena C. Fawcett, Clerk/Administrator California Court of Appeal, Third Appellate District (CA)
Colette M. Bruggman, Assistant Clerk/Administrator California Court of Appeal, Third Appellate District (CA) Bernie Bruggman
Steve Kelly, Clerk/Administrator California Court of Appeal, Fourth Appellate District (CA)
Kevin J. Lane, Assistant Clerk/Administrator ATTENDEES California Court of Appeal, Fourth Appellate District, Division 1 (CA) Jeff Love
Paula Garcia, Assistant Clerk/Administrator California Court of Appeal, Fourth Appellate District, Division 2 (CA) David Garcia
Julie Bagoye, Assistant Clerk/Administrator California Court of Appeal, Fifth Appellate District (CA)
Victoria Hernandez, Assistant Clerk/Administrator (Retired) California Court of Appeal, Fifth Appellate District (CA)
Mike Yerly, Clerk/Administrator California Court of Appeal, Sixth Appellate District (CA)
Corrine Pochop, Assistant Clerk/Administrator California Court of Appeal, Sixth Appellate District (CA)
Colorado Polly Brock, Chief Deputy Clerk Colorado Court of Appeals (CO)
District of Columbia Bill Suter, Clerk Supreme Court of the United States (DC) Jeanie Suter Ashley Suter
Cynthia Rapp, Deputy Clerk Supreme Court of the United States (DC) James Fletcher Alex Fletcher
Bill DeCicco, Clerk United States Court of Appeals for the Armed Forces (DC) Claudia DeCicco
Greg Block, Clerk United States Court of Appeals for Veterans Claims (DC) Maureen Block
Florida Tom Hall, Clerk Florida Supreme Court (FL) Lisa Hall Matt Hall PAGE 2 OF 7
OF LIST GEOGRAPHICAL Susan Morley, Chief Deputy Clerk Florida Supreme Court (FL)
Iowa Donna M. Humpal, Clerk of Iowa Supreme Court and Court of Appeals Iowa Supreme Court and Court of Appeals (IA) Michael Pash Madeleine Humpal-Pash Isabelle Humpal-Pash
Benjamin Humpal-Pash ATTENDEES Illinois Carolyn Grosboll, Clerk Illinois Supreme Court (IL) Allen D. Grosboll
John Grosboll
Indiana Kevin Smith, Clerk/Administrator Indiana Supreme Court (IN)
Heather Smith, Deputy Clerk of Courts Indiana Supreme Court (IN) Erwin Susara Dobbie Smith Timothy Smith
Steve Lancaster, Administrator Court of Appeals of Indiana (IN) Pauline Lancaster
Danielle Sheff, Deputy Administrator Court of Appeals of Indiana (IN) Andrew Sheff
Kansas Carol Green, Clerk Kansas Supreme Court and Court of Appeals (KS)
Kentucky Susan Clary, Clerk, Court Adminstator, General Counsel Supreme Court of Kentucky (KY) Nicolas Clary
George Geoghegan III, Clerk (Retired) Kentucky Court of Appeals (KY)
Louisiana John Olivier, Clerk Louisiana Supreme Court (LA) Terry Olivier Jeff Olivier Emily Olivier
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OF LIST GEOGRAPHICAL Christine "Chris" Crow, Clerk Louisiana First Circuit Court of Appeal (LA) Brian Crow Janis Lasseigne
Lillian Richie, Clerk/Judicial Administrator Louisiana Second Circuit Court of Appeal (LA) Vernon Richie
Kelly McNeely, Clerk
Lousiana Third Circuit Court of Appeal (LA) ATTENDEES Robin McNeely
Danielle Schott, Clerk Lousiana Fourth Circuit Court of Appeal (LA) Charles Ponder, III Chase Ponder
Pete Fitzgerald, Clerk Louisiana Fifth Circuit Court of Appeal (LA) Tani Fitzgerald
Maryland New Member Greg Hilton, Chief Deputy Clerk First Time Attendee Maryland Court of Special Appeals (MD) Kathleen Hilton Jack Hilton
Michigan Corbin Davis, Clerk Michigan Supreme Court (MI) Paula Davis
Missouri Sandra L. Skinner, Clerk Missouri Court of Appeals, Southern District (MO) Dennis E. Budd
Laura Roy, Clerk Missouri Court of Appeals, Eastern District (MO) Ronnie Roy Andrew Roy
Terry Lord, Clerk Missouri Court of Appeals, Western District (MO) Kathy Lord Terry Lord, Jr. Kristin Roques Lord
Montana Ed Smith, Clerk Montana Supreme Court (MT)
Rex Renk, Deputy Clerk Montana Supreme Court (MT)
PAGE 4 OF 7
North Carolina OF LIST GEOGRAPHICAL New Member M. C. Hackney, Assistant Clerk First Time Attendee Supreme Court of North Carolina (NC)
North Dakota Petra Hulm, Chief Deputy Clerk North Dakota Supreme Court (ND) Jason Hulm
New Hampshire ATTENDEES Eileen Fox, Clerk New Hampshire Supreme Court (NH)
New Jersey
Mark Neary, Clerk Supreme Court of New Jersey (NJ) Allison Neary
Nevada Tracie Lindeman, Clerk Nevada Supreme Court (NV) Callen Aten Camryn Aten
New York Catherine O'Hagan Wolfe, Clerk United States Court of Appeals for the Second Circuit (NY)
Stuart Cohen, Clerk (Retired) New York Court of Appeals (NY)
Jim Pelzer, Clerk (Retired) NYS Appellate Division, 2nd Department (NY) Ellen Pelzer
Ohio Kris Frost, Clerk Supreme Court of Ohio (OH)
Amy Reitz, Chief Deputy Clerk Supreme Court of Ohio (OH)
Pennsylvania Irene Bizzoso, Prothonotary Pennsylvania Supreme Court (PA)
Kristen Brown, Prothonotary Commonwealth Court of Pennsylvania (PA) Michael Brown
John Moyer, Deputy Prothonotary Commonwealth Court of Pennsylvania (PA) Linette Burd Savannah Moyer
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OF LIST GEOGRAPHICAL Puerto Rico Aida Oquendo-Graulau, Clerk Supreme Court of Puerto Rico (PR) Manuel Aponte Rosario
South Carolina Dan Shearouse, Clerk Supreme Court of South Carolina (SC) Rebecca Shearouse
Katie Shearouse ATTENDEES Danielle Shearouse Jennifer Shearouse Barrett Beasley
New Member Jenny Abbott Kitchings, Clerk First Time Attendee South Carolina Court of Appeals (SC)
Reba Mims, Clerk (Retired) South Carolina Court of Appeals (SC) Joan Creed
Texas Blake Hawthorne, Clerk Supreme Court of Texas (TX)
Brad Sonego, Deputy Clerk Supreme Court of Texas (TX)
New Member Tiffany Shropshire, Archivist Supreme Court of Texas (TX)
Louise Pearson, Clerk Texas Court of Criminal Appeals (TX) Taiylor Tedford Harley Crumley
Karinne McCullough, Clerk Texas First Court of Appeals (TX) Bill McCullough
Debra Spisak, Clerk Texas Second Court of Appeals (TX) Jim Spisak Andrew Spisak
Debbie Autrey, Clerk Texas Sixth Court of Appeals (TX) Tony Autrey
Denise Pacheco, Clerk Texas Eighth Court of Appeals (TX)
Carol Anne Harley, Clerk Texas Ninth Court of Appeals (TX) Richard Harley
Sherry Williamson, Clerk Texas Eleventh Court of Appeals (TX) PAGE 6 OF 7
OF LIST GEOGRAPHICAL Cathy Lusk, Clerk Texas Twelfth Court of Appeals (TX) Mike Lusk
Dorian Ramirez, Clerk Texas Thirteenth Court of Appeals (TX) Fred Ramirez
Chris Prine, Clerk First Time Attendee Texas Fourteenth Court of Appeals (TX)
Mary-Jo Prine ATTENDEES
Virgin Islands Veronica Handy, Clerk Supreme Court of the Virgin Islands (VI)
Hugh M. Smith, Jr.
Virginia Ed Hosken, Chief Deputy Clerk (Retired) United States Court of Appeals - Federal Circuit (VA) Daphne Hosken
Mac Squires, Clerk/Judicial Advisor United States Army Court of Criminal Appeals (VA) Kathy Squires
Trish Harrington, Clerk Supreme Court of Virginia (VA)
David Beach, Clerk (Retired) Supreme Court of Virginia (VA) Susan Beach
Washington Ron Carpenter, Clerk Washington State Supreme Court (WA) Carol Carpenter
West Virginia Rory Perry, Clerk West Virgina Supreme Court of Appeals (WV) Rene Margocee Connie Johnson
Eydie Gaiser, Deputy Clerk West Virgina Supreme Court of Appeals (WV)
Wyoming New Member Carol Thompson, Clerk First Time Attendee Wyoming Supreme Court (WY)
PAGE 7 OF 7 Law in Popular Culture Sunday, July 29, 2012 2:00 p.m. – 3:30 p.m. Signers’ Ballroom Speaker: Ms. Jennifer Thompson, Author Picking Cotton Jennifer Thompson, a native North Carolinian and mother of teenage triplets, has become an outspoken opponent on the death penalty and speaks frequently about the need for judicial reform. Her strong convictions were born of a brutal rape she suffered as a twenty-two year old college student. It was her compelling testimony in that case that sent a young man to prison, not once, but twice, for a crime he did not commit. That man, Ronald Cotton, was eventually freed thanks in large part to his persistence in proclaiming his innocence and the development of sophisticated DNA tests. Thompson credits Ronald with teaching her the healing power of forgiveness and grace. Together they successfully lobbied state legislators to change compensation laws for the wrongly convicted. Their efforts were portrayed in the book, Picking Cotton. She is now a member of the Actual Innocence Commission, advisory committee for Active Voices, member of the Constitution Project and Mothers for Justice.
Page 1 of 1 Crisis in Court Funding Monday, July 30, 2012 8:30 a.m. – 9:30 a.m. Signers’ Ballroom Speaker: Ms. Mary C. McQueen, President National Center for State Courts Mary Campbell McQueen is President of the National Center for State Courts, having been appointed to that position on August 9, 2004. Previously, McQueen served as Washington State Court Administrator, 1987-2004; Director of Judicial Services, Washington State Office of the Administrator for the Courts, 1979-87; Court Planning Officer, District of Columbia Courts; Planning Coordinator, Kentucky Department of Justice; and Manager, Evaluation Unit, Kentucky Department of Corrections. As an advocate for court and judicial reform, she has served on the Board of Directors of the National Center for State Courts and Conference of State Court Administrators (President-1995-96); Chair, American Bar Association’s Judicial Administration Division (Lawyers Conference); Chair of the Court Management Council; and a member of the Board for Judicial Administration, Judicial Information Systems Committee, Information Services Board, and Board for Court Education and Ethics Advisory Committee. McQueen’s work has received acclaim through numerous awards and honors, including induction into the Warren E. Burger Society of the National Center for State Courts; the American Judicature Society’s Herbert Harley Award in 2004, the joint ABA National Center for State Courts Jury Standards Award, 1989; and the National Center for State Courts Distinguished Service Award, 1991. Her educational achievements include participating in the Program for Senior Executives in State and Local Government, John F. Kennedy School of Government at Harvard University; and degrees from the University of Georgia (BA) and Seattle University Law School (JD). She is a member of the U.S. Supreme Court and Washington State Bar Associations.
Page 1 of 1 Who’s Defending the Judiciary? Monday, July 30, 2012 9:30 a.m. – 11:00 a.m. Signers’ Ballroom Panel: Mr. Thomas D. Hall, Clerk (Moderator) Supreme Court of Florida Hon. David L. Baker, Former Justice Iowa Supreme Court Mr. Matt Berg, Deputy Director of State Affairs Justice at Stake Campaign Ms. Lisa Hall, APR, CPRC, Director of Publications SalterMitchell, Inc. Professor Penny J. White, Director Center for Advocacy and Dispute Resolution, University of Tennessee College of Law Mr. Thomas D. Hall, Clerk (Moderator) Tom has been Clerk of the Supreme Court of Florida since 2000. He received a B.A. degree from the University of West Florida in 1976. He attended Miami University (Ohio) for four years. In 1980, he received his J.D. degree from the University of Miami (Florida) School of Law. Tom served as Chief Staff Attorney at the First District Court of Appeal, Florida from 1990 through 2000. Prior to that, he was in private law practice in Miami, Florida, for approximately eight years. He litigated complex commercial cases at the trial and appellate level. Immediately after graduation from law school, Tom clerked for Judge Daniel S. Pearson at the Third District Court of Appeal, Florida. Tom served on the NCACC Executive Committee from 2002 to 2004. He has presented at the annual educational conference and currently presents the Morgan Thomas slide show every year. Before becoming a lawyer, Tom was a professional photographer. He served in the United States Navy as a photographer from 1966-1970, with service in Pensacola, Florida; Albany, Georgia; Washington, D.C.; San Diego, California; and aboard the U.S.S. Constellation. Tom is married to Lisa Hall. Lisa is a vice-president of a major public relations firm in Tallahassee. They have a son, Matthew. Tom also has a son, Troy, from a previous marriage. Hon. David L. Baker, Former Justice A life-long Iowan, Justice Baker was born in Muscatine in 1952 and grew up in Waterloo. Justice Baker attended undergraduate and law school at the University of Iowa, receiving his bachelor’s degree in 1975 with Honors in Sociology and his law degree in 1979 with high honors, Order of the Coif. Following graduation from law school, Justice Baker worked in the private practice of law for 25 years where he practiced in various areas, including tax and corporate to bankruptcy to litigation. His initial areas of practice were a general practice with an emphasis in tax, estate planning, and corporate. He evolved away from a business practice to a litigation practice, initially bankruptcy and later insurance defense. In 1989, Justice Baker began a new firm with John Riccolo under the name of Riccolo & Baker, P.C., practicing almost exclusively in the area of litigation. Justice Baker has handled cases involving personal injury, professional negligence, construction, real estate, commercial questions, employment issues, and workers’ compensation. He has been involved in numerous trials as well as administrative and bankruptcy hearings. He had an extensive appellate practice. Justice Backer was appointed as a district court judge for the Sixth Judicial District in the State of Iowa beginning January 3, 2005. He was appointed to the Iowa Court of Appeals in 2006. He was appointed to the Iowa Supreme Court in 2008 where he served until December 31, 2010. As a district court judge, he heard cases ranging from divorces to medical malpractice cases to land disputes. As an appellate judge, he has heard hundreds of cases covering almost every aspect of the law.
Page 1 of 3 (Justice Baker, continued) Justice Baker has been involved in many professional activities. As a member of the Iowa State Bar Association, he was involved in Jury Instructions Committee, Bench/Bar Committee, and the Appellate Practice Committee where he participated in the writing of the Appellate Practice Manual. He is currently the co-chairman of the Bench/Bar Committee. Justice Baker also served as a temporary bar examiner for 10 years and has been a lecturer for the Iowa Bar Review School. In the Linn County Bar Association, he served as a member of the Ethics and Grievance Committee. He is currently a member of the Sixth Judicial District Judicial Nominating Commission. He was also a member of the Merit Selection Panel involved in the selection of the U.S. Magistrate Judge for the Northern District of Iowa. He was the chairman of Amicus Curiae Committee for the Iowa Trial Lawyers Association. Based upon the recommendations of his peers and judges, he was inducted into the Iowa Academy of Trial Lawyers, whose membership is limited to 250 attorneys who have displayed exceptional skills and the highest integrity. He is currently a member of Mason Ladd Inn of Court. Mr. Matt Berg, Deputy Director of State Affairs Matt Berg has served as the Deputy Director of State Affairs for Justice at Stake since September 2010. He graduated from the University of California, Berkeley, School of Law in May 2010. During law school, he externed for a federal judge, worked as a summer associate for a corporate law firm, and interned with the Center for Food Safety and the East Bay Community Law Center. Prior to law school, he worked for Fair Wisconsin, a nonpartisan campaign to defeat a state constitutional amendment banning same-sex marriage. He holds a B.A. in English Literature from the University of Wisconsin, Madison. Ms. Lisa Hall, APR, CPRC, Director of Publications Lisa Hall has wide-ranging experience in all aspects of media, from print to broadcast and wire. She has managed, produced, and executed news for more than 17 years. Lisa understands what the media will cover and what they'll ignore, and is a pro at developing news angles for issues. As director of public affairs, Lisa plays an important role in strategic planning by facilitating brainstorming sessions, developing creative content, and identifying news angles. Lisa has led statewide campaigns that have resulted in major client victories. She led the industry image campaign and legislative initiative that helped the Florida Petroleum Marketers and Convenience Store Association block proposed legislation that would have hurt small businesses. Lisa led a grassroots campaign that helped save Florida's State Library, and spearheaded media and community relations that resulted in the largest preservation land purchase in Florida history and creation of the Babcock Ranch Preserve in Southwest Florida. Lisa is accredited by the Universal Accreditation Board for public relations and is a Certified Public Relations Counselor. Professor Penny J. White, Director Penny J. White is the E.E. Overton Distinguished Professor of Law and the Director of the Center for Advocacy and Dispute Resolution at the University of Tennessee College of Law. White earned her J.D. from the University of Tennessee where she served as Editor in Chief of the Tennessee Law Review and was named to Order of the Coif. She received her LL. M. from Georgetown University Law Center where she was an E. Barrett Prettyman Fellow. As a solo practitioner in Johnson City, White successfully argued the case of Houston v. Lack in the United States Supreme Court. Before beginning her teaching career, White served as a judge in all courts of record in Tennessee. She was elected the first woman Circuit Court Judge in the First Judicial District and subsequently appointed to the Tennessee Court of Criminal Appeals, the second woman to serve on that court. She was also the second woman and the youngest person to serve on the Tennessee Supreme Court.
Page 2 of 3 (Professor White, continued) White writes and speaks often on the topic of judicial independence. Her most recent article on the topic, “Relinquished Responsibilities,” which was published in the November 2009 edition of the Harvard Law Review, earned her the Yarborough Award for Writing Excellence at the College of Law. She also received the University’s Jefferson Award for her research and scholarship on topics related to judicial selection, ethics, and recusal. White has demonstrated a particular interest in continuing judicial education, having taught courses in more than 30 states and serving as a member of the National Judicial College faculty for 18 years. She frequently teaches courses in ethics, evidence, criminal procedure, and capital punishment. As a judicial educator, White was awarded the National Judicial College’s V. Robert Payant award for teaching excellence in 2009.
Page 3 of 3
THE NEW POLITICS OF JUDICIAL ELECTIONS 2009–10 How Special Interest “Super Spenders” Threatened Impartial Justice and Emboldened Unprecedented Legislative Attacks on America’s Courts
by Adam Skaggs and Maria da Silva Brennan Center for Justice at NYU School of Law
Linda Casey National Institute on Money in State Politics
Charles Hall, Editor and Co-Author Justice at Stake Campaign 717 D Street, NW, Suite 203 Washington, D.C. 20004 Phone (202) 588-9700 • Fax (202) 588-9485 [email protected] www.justiceatstake.org
This report was prepared by the Justice at Stake Campaign and two of its partners, the Brennan Center for Justice and the National Institute on Money in State Politics. It represents their research and viewpoints, and does not necessarily reflect those of other Justice at Stake Campaign partners, funders or board members. Publication of this report was supported by grants from the following organizations: Arkay Foundation, Baumann Fund, Blum-Kovler Foundation, Carnegie Corporation of New York, Columbia Foundation, Democracy Alliance Partners, Ford Foundation, HKH Foundation, Joyce Foundation, Kohlberg Foundation, Open Society Foundations, Public Welfare Foundation, Rockefeller Brothers Fund, Vanguard Charitable Foundation, and Wallace Global Fund.
The New Politics of Judicial Elections 2009–10 Published October 2011 Visit us at www.justiceatstake.org Table of Contents
List of Charts and Figures page vi
Introduction page 1
Chapter 1 The Money Trail Page 3 Interest Groups Drive Spending Page 3 Spending Highest on Divided Courts Page 3 National Overview Page 5 Some States Trail Off Page 7 Retention Election Spending Skyrockets in 2010 Page 7 State in Focus: Iowa Page 9 After Citizens United: Patchwork Disclosure Rules Leave Voters in the Dark Page 10 Disclosure vs. Hidden Spending Page 10 State in Focus: Michigan Page 12
Chapter 2 Court TV 2009–10 Page 13 Spending on Television Advertising in 2009 and 2010 Judicial Elections Page 13 TV Advertising in the 2009–10 Supreme Court Elections: A Detailed Analysis Page 14 Spending by Non-Candidate Groups Remains High in 2010 Page 16 Sponsorship and Content: Who Paid for What Ads Page 16 2010 Elections—State Snapshots Page 18 State in Focus: Illinois Page 20
Chapter 3 Implications of the 2009–10 Elections Page 21 2011 Legislative Aftershocks Follow 2010 Earthquake Page 21 Public Financing Page 21 Impeachment Threats: Iowa, New Hampshire and Elsewhere Page 23 Attacks on Merit/Retention Page 23 Florida: Court-Splitting or Court-Packing? Page 26 Funding Cuts Court Disaster Page 26 Looking Ahead: More Assaults Expected Page 27
Appendix Page 28
Endnotes Page 29
The New Politics of Judicial Elections: 2009–10 iii
List of Charts and Figures
Chapter 1 The Money Trail Candidate Fundraising, 2009–10 Page 5 Top 10 States, by Total Spending Page 5 Top 10 Super Spenders, 2009–10 Page 6 Contributions to Candidates by Sector, 2009–10 Page 6 Candidate Fundraising by Type of Election, 2009–10 Page 7 Iowa Campaign Ads Page 9 Michigan Campaign Finance Network Report Cover Page 11 Michigan Campaign Ads Page 12
Chapter 2 Court TV 2009–10 Number of Television Ad Airings by Biennium, 2001–2010 Page 13 Total Spending on TV Ads per Biennium, 2001–2010 Page 14 Monthly Spending Trend, All Groups, 2010 Page 15 State Totals, 2010 Page 15 State Totals, 2009 Page 15 2010 Ads, by Sponsor Page 16 2010 Attack Ads, by Sponsor Page 16 Sponsors, 2010 Supreme Court Elections Page 17 Party Ad Tone Page 18 Candidate Ad Tone Page 18 Alabama Campaign Ad Page 18 Arkansas Campaign Ad Page 19 Party Ads Mentioning Criminal Justice Page 19 Candidate Ads Mentioning Criminal Justice Page 19 Illinois Campaign Ads Page 20 Attacks on Merit Selection, 2011 Page 24
The New Politics of Judicial Elections: 2009–10 v
INTRODUCTION
On Election Day 2010, for the first time in a gravest threats yet to fair and impartial justice generation, three state supreme court justices in America. were swept out of office in a retention election A total of $38.4 million was spent on state high when voters expressed anger over a single court elections in 2009-10, slightly less than the controversial decision on same-sex marriage. last non-Presidential election cycle, in 2005-06. The special-interest campaign—which poured However, $16.8 million was spent on television nearly a million dollars into Iowa to unseat advertising—making 2009-10 the costliest non- the justices—was the logical culmination of a presidential election cycle for TV spending in decade of rising efforts to inject more partisan judicial elections. Outside groups, which have politics into our courts of law. no accountability to the candidates, continued Outside money continued its hostile takeover of their attempts to take over state high court elec- judicial elections. More than ever, a small num- tions, pouring in nearly 30 percent of all money ber of super spenders played a dominant role in spent—far higher than four years earlier. Two influencing who sits on state supreme courts. states, Arkansas and Iowa, set fundraising or Much of this influence was exercised secretly. spending records in 2010, following a decade in which 20 of 22 states with competitive supreme But Election Day was only the beginning. court elections shattered previous fundraising Campaign leaders in Iowa issued a blunt warn- marks. ing to judges around the country that they could be next. For the next half year, legislatures across the country unleashed a ferocious round of attacks against impartial justice. More judges were threatened with impeachment than at any time in memory. Merit selection, an Non-candidate groups appointment system that has historically kept special-interest money out of high court selec- poured in nearly tion in two dozen states, faced unprecedented assault. Public financing for court elections, one of the signature reforms to protect elected courts 30% of all money in the last decade, was repealed in one state and faced severe funding threats in two others. spent in 2009-10— The story of the 2009-10 elections, and their aftermath in state legislatures in 2011, reveals a coalescing national campaign that seeks to far higher than four intimidate America’s state judges into becoming accountable to money and ideologies instead of years earlier. the constitution and the law. In its full context, the most recent election cycle poses some of the Laced among these numbers were several wor- rying trends: ➜➜ In many states, small groups of “super ➜➜ Costly television advertising remained spenders” maintained a dominant all but essential to win a state supreme role, seeking to sway judicial elections court election, while TV ads by non- with mostly secret money. Of the top candidate groups often resorted to 10 super spenders nationally, there rank character assassination against was only one newcomer, the National sitting judges. Even in states that Organization for Marriage. Unlike in lacked competitive races, such as Ohio 2007-08, when the biggest groups on and Alabama, candidates and groups the left and right established a rough poured millions of dollars into costly ad parity, business and conservative groups campaigns. [See Chapter 2, Court TV, were the top spenders in 2009-10. 2009-10] ➜➜ Spending also spiked on judicial reten- ➜➜ Across the country, the 2010 judicial tion elections, which—with a hand- and legislative elections ignited an ful of notable exceptions—had been unprecedented post-election attack on extremely resistant to special-interest state courts. This included challenges encroachment before 2010. Retention to merit selection systems for choosing elections accounted for 12 percent of all judges, a campaign to roll back public election spending—compared with just financing, and threats to impeach judg- 1 percent for the entire previous decade. es for unpopular decisions. [See Chapter [See Chapter 1, The Money Trail] 3, Implications of the 2009-10 Elections]
Editorial Published September 28, 2010.
2 Justice at Stake Campaign CHAPTER 1 The Money Trail
Interest Groups Drive Spending The 2009–10 election spending breakdown depicts a striking disparity between the power of Spending is always lower in non-presidential a few “super spenders”—organizations capable election cycles, and that was true in the most of spending millions on court elections that recent biennium. Candidates and special-inter- affect their bottom line—and that of all other est groups spent nearly $38.4 million on state donors to judicial campaigns. The term was supreme court elections in 2009-10, somewhat first coined in a 2010 study of 29 elections in the lower than the $42.7 million spent in 2005-06. 2000-2009 decade, held in 10 states with high- Despite the slight falloff, a closer analysis shows cost campaigns. In each of those 29 elections, a deepening of two worrisome trends. the top five spenders averaged $473,000 apiece. Independent expenditures—by state parties and All other donors and groups averaged just $850.1 special-interest groups—were, in proportion to The money amassed by a few groups underscores total spending, significantly greater in 2009-10 an important reality about the politics of judi- than four years earlier. Such independent activi- cial elections. With candidates enjoying limited ties accounted for $11.5 million, or 29.8 percent name recognition, and with few members of of all money spent to elect high court justices. the public tuned in to court elections, judicial In 2005-06, outside groups represented about 18 candidates must overcome serious obstacles if percent of the total spending. they hope to tap the small-donor revolution For the public, this translates to a greater use of seen in recent presidential races. Presently, a few attack ads by groups not affiliated with candi- super spenders can dominate judicial election dates on the ballot. It also means greater secrecy. funding with an ease unparalleled in campaigns In many states with weak, outdated campaign for other offices. And loopholes in disclosure disclosure laws, political parties and interest laws give them numerous options for doing so in groups are able to conceal the sources of funds substantial secrecy. they use to spend most aggressively to determine which judges sit on the highest courts. Spending Highest on Moreover, to a significantly greater degree than Divided Courts in 2005–06, the spending was driven by a few powerful special-interest groups in 2009-10. Of In 2009–10, the most expensive high-court elec- the nearly $38.4 million raised and spent on state tions included those in Michigan, Pennsylvania high court elections, just 10 groups accounted for and Illinois—states in which courts remain nearly $15 million (including direct contributions closely divided by party and/or judicial phi- to candidates, as well as independent expendi- losophy. In all three states, super spender groups tures)—or 38.7 percent of every dollar spent on drove the campaigns, often overshadowing the all state high court elections. By comparison, budgets of candidates. the top 10 groups in 2005-06 accounted for $11.4 In Michigan, where a final-week television million, or 26.7 percent of total spending. blitz by candidates, interest groups and political parties dominated the airwaves, estimates of (RGA), a national campaign organization. The campaign spending ranged from $9.1 million RGA ultimately transferred $5.2 million back to $11.1 million (with $6.8 million to $8.8 mil- to Michigan’s Republican Party, which was the lion in non-candidate spending).2 Regardless of leading television sponsor in this year’s high the precise figure, Michigan’s judicial election court campaign. Accountability was lost in the spending was easily the nation’s highest in 2009- face of the RGA’s massive national shell game. 10. The reelection of Justice Robert Young, and [See State in Focus: Michigan] the election of Justice Mary Beth Kelly to the The second most expensive state in 2009-10 was narrowly divided court, tipped the balance from Pennsylvania, where Republican Joan Orie a 4-3 progressive majority to a 4-3 conservative Melvin and Democrat Jack Panella raised a majority. combined $5.4 million for their November 2009 So great was the independent spending in election. Since 2007, Pennsylvania candidates Michigan that the four supreme court candi- and interest groups have spent $15.5 million, the dates, who raised a total of $2.3 million, at times highest total nationally from 2007-10. In 2009, seemed like bystanders in their own elections.3 just two groups accounted for more than half The state Republican Party single-handedly out- of all candidate fundraising in Pennsylvania. spent all four candidates, investing more than The state GOP poured $1.4 million into the $4 million in electoral support. Kicking in more campaign of eventual winner Joan Orie Melvin, than $1.5 million was the state Democratic Party, while the Philadelphia Trial Lawyers Association while the Law Enforcement Alliance of America donated $1.37 million to Jack Panella. (LEAA), a Virginia-based group with ties to the Muddying the waters was the Pennsylvania National Rifle Association, also made a major Republican Party’s claim, during the election TV splash. campaign, that its TV ads were being aired Most of the special-interest spending in independently of Justice Orie Melvin’s election Michigan was concealed from the public, a fact bid—even though the GOP effort was orches- that accounts for the variation in estimates of trated by the Justice’s sister, state Senator Jane total spending. Although ads by both parties Orie. After the election, the party updated its and the LEAA were blatant attempts to sway campaign finance reports, treating more than a votes, Michigan’s outdated disclosure law treated million dollars in TV ads as an in-kind contribu- them as apolitical “issue ads,” and required no tion to the Orie Melvin campaign. campaign finance filings disclosing the amounts In Illinois, a single source, the Illinois spent. Estimates of total spending therefore were Democratic Party, accounted for half of the $2.8 largely based on the volume of TV ads each million raised by incumbent Justice Thomas group ran, and estimates of what that airtime Kilbride in his bid to retain his seat. And the cost. $1.5 million donated to the Democratic Party It also was impossible to decipher who ultimately by major plaintiffs’ law firms almost identically bankrolled independent efforts in Michigan. matched the $1.4 million that the party gave After being the preeminent player in the previ- to Kilbride. Because of this apparent conduit, ous five supreme court campaigns, the state Kilbride’s own contributions showed almost no Chamber of Commerce sponsored no television money from plaintiffs’ lawyers, enabling him to advertisements in 2010. But it did give $5.4 mil- avoid direct links to special-interest money. lion to the Republican Governors Association
Nationally, nine states accounted for $24.6 million of the $27.02 million raised4 by state high court candidates.Chapter 1: The Money Trail National Overview Candidate Fundraising, 2009–10*
Nationally, nine states accounted for $24.6 mil- Pennsylvania** $5,424,210 lion of the $27.02 million raised by state high Alabama $3,164,615 court candidates. Texas $2,951,719 These state rankings change when independent Ohio $2,865,847 expenditures by political parties and special- Illinois*** $2,789,649 interest groups are included to identify total Michigan $2,342,827 overall spending. Michigan, ranked sixth in candidate fundraising, surges to No. 1 when all Arkansas $1,965,962 sources of money, including independent TV Wisconsin** $1,624,343 ads, are considered. When state Chamber of Louisiana**** $1,499,408 Commerce spending is accounted for, Ohio also Washington $751,180 rises in the rankings, leapfrogging past Alabama, Georgia $588,251 Illinois and Texas. West Virginia $306,447 In 2009–10, business and conservative groups North Carolina $163,718 dominated the national list of 10 ten super spenders, accounting for seven of the top 10 Idaho $162,148 groups, and for $10.5 million of the $14.9 million Montana $160,174 spent. This disparity differs from the 2007-08 Minnesota $152,803 biennium, when the left and the right spent Oregon $100,536 roughly equal amounts. Nine of the 10 high- Mississippi $5,000 est spending groups in the 2009-10 cycle were identified as judicial-election super spenders in Kentucky $3,450 “The New Politics of Judicial Elections, 2000- Total $27,022 , 287 2009: Decade of Change.” Only the National Organization for Marriage, which spent $635,000 *Except as indicated, figures refer to 2010 elections, **2009 election in the Iowa retention election, was a newcomer. ***Retention election, ****Elections in 2009 and 2010
Top 10 States, by Total Spending, 2009–10
State Total Candidates Party Group
Michigan $9,243,914 $2,342,827 $5,503,369 $1,274,842 Pennsylvania $5,424,210 $5,424,210 Ohio $4,437,302 $2,865,847 $1,571,455 Alabama $3,538,805 $3,164,615 $374,190 Illinois $3,477,649 $2,789,649 $688,000 Texas $2,951,719 $2,951,719 Arkansas $1,965,962 $1,965,962 Wisconsin $1,930,051 $1,624,343 $305,708 Louisiana $1,499,408 $1,499,408 Iowa $1,414,618 $1,414,618 Totals $35,760,762 $24,628,580 $5,503,369 $5,628,813
The New Politics of Judicial Elections: 2009–10 5 Top 10 Super Spenders, 2009–10
Independent Group Contributions Expenditures Total Michigan Republican Party4 $122,876 $3,945,205 $4,068,081 Partnership for Ohio’s Future (Chamber of Commerce) $1,571,455 $1,571,455 Illinois Democratic Party $1,475,000 $1,475,000 Michigan Democratic Party $1,558,164 $1,558,164 Pennsylvania Republican Party $1,458,522 $1,458,522 Philadelphia Trial Lawyers Association $1,370,000 $1,370,000 Business Council of Alabama $ 1,295,000 $1,295,000 Law Enforcement Alliance of America $803,770 $803,770 Illinois Civil Justice League (JustPac) $688,000 $688,000 National Organization for Marriage $635,627 $635,627 Total $5,721,398 $9,202,221 $14,923,619
Contributions to Candidates by Sector, 2009–10 When contributions are broken down by sec- tor, lawyers and lobbyists led the way, with $8.5 Sector Total Donations million in donations, followed by business, with Lawyers/Lobbyists $8,561,050 $6.2 million. The third largest sector was politi- cal parties, which contributed $3.4 million. All Business $6,214,596 of these categories include contributors from Political Party $3,485,699 the left and the right. Lawyers and lobbyists, for Unknown $2,864,698 instance, include both plaintiffs’ firms and the defense bar. Organized Labor $261,430 The two biggest gifts by political parties were Candidate Contributions $1,878,836 $1.4 million from the Pennsylvania Republican Other* $1,122,736 Party to Justice Joan Orie Melvin, and $1.4 Ideology/Single Issue $382,912 million from the Illinois Democratic Party to Justice Thomas Kilbride. The Pennsylvania Unitemized Contributions $250,330 contribution took the form of TV ads that origi- Total $27,022 , 287 nally were labeled as independent expenditures. The Illinois money was funded by checks to the *Other includes: retired persons, civil servants, local or municipal elected offi- Democratic Party from plaintiffs’ law firms. cials, tribal governments, clergy, nonprofits, and military persons.
When contributions are broken down by sector, lawyers and lobbyists led the way, with $8.5 million in donations.
6 Chapter 1: The Money Trail Some States Trail Off Collectively, the lower levels of spending in several previously contested states resulted in In 2010, spending fell compared to earlier elec- national spending levels that fell somewhat short tion cycles in some of the historically most of those from the last non-presidential cycle, in expensive states. 2005–06. In Alabama—easily the most costly state in the 2000-09 decade, during which candidates raised $40.1 million—fundraising fell to $3.1 million. Retention Election While still high compared with many states, Spending Skyrockets in that figure was a far cry from the $13.5 million 2010 raised in Alabama in 2006, still the costliest One category of judicial election spending stood multi-candidate judicial election in American out in 2009–10: the money explosion in reten- history. Likewise, fundraising in Texas was $2.9 tion elections. Incumbent justices faced unprec- million, down from $3.5 million in 2006. edented fundraising by the opposition in four What Alabama and Texas had in common was states: Illinois, Iowa, Alaska and Colorado. the lack of competitive races, and high courts Cumulatively, nearly $4.9 million was spent, overwhelmingly dominated by Republican jus- with incumbents raising $2.8 million and inde- tices. In contrast to 2008, when the national pendent groups spending near $2.1 million. political climate encouraged Texas and Alabama Those numbers have deeply disturbing implica- Democrats to spend heavily in court races, tions. In the entire decade from 2000 to 2009, the rightward national countertrend of 2010 a time when special-interest spending skyrock- appeared to cement gains previously made by eted on judicial elections, retention elections conservatives and Republicans in those states. remained largely immune to big-money politics. But even a lessening of strong ballot competition With only incumbents appearing on the ballot, did not eliminate big special-interest spending. and voters deciding “yes” or “no” on whether In Alabama, where three Republican incumbent to grant another term, candidates in retention justices easily outspent Democratic challengers, elections raised just $2.2 million nationally in the Business Council of Alabama still invested 2000–09, barely 1 percent of the nearly $207 nearly $1.3 million. Similarly, in Ohio, the million raised by high court candidates overall.6 Partnership for Ohio’s Future, a state Chamber By contrast, retention elections accounted for of Commerce affiliate, spent about $1.5 million 12.7 percent of all judicial election spending in on independent campaign efforts, nearly match- 2009-10, including independent election cam- ing the $1.7 million raised by two Republican paigns. incumbents. Candidate* Fundraising by Type of Election, Several other states that set records in 2006, 2009–10 including Georgia and Kentucky, had little or $2,828,689 no competition in 2010, with no money spent by Non-Partisan special-interest groups. In Washington, a small number of independent TV ads aired in the pri- Partisan mary season, but spending paled in comparison Retention to a big-money showdown in 2006, when the $5,638,526 state builders association sought unsuccessfully to elect two justices.5 Total Raised: $27,022,287 In Nevada, which set a fundraising record in 2008, two incumbents ran unopposed. The $18,555,073 * Candidate fundraising main court-related battle there was an unsuc- only. Totals do not cessful ballot measure to replace the state’s non- include independent partisan high-court election system with merit expenditures. selection and retention election of judges.
The New Politics of Judicial Elections: 2009–10 7
Data courtesy TNS Media Intelligence/CMAG. In 2010, elections in Iowa and Illinois blew apart The funding patterns in Kilbride’s retention race any sense that runaway spending can’t happen in paralleled, on a smaller scale, those of a record- retention contests. Quite the contrary: in those setting 2004 Illinois election, in which candi- states national and state-based special-interest dates Lloyd Karmeier and Gordon Maag raised groups poured in millions of dollars. Even in a total of $9.3 million. Angered by Kilbride’s vote other states where the “Vote No” campaigns’ to help strike down a ceiling on certain medical- funding was limited, significant challenges were malpractice awards, national business groups mounted. financed a $688,000 challenge. The effort, led by the Illinois Civil Justice League, was largely In three states with the most serious retention funded by the U.S. Chamber of Commerce, the challenges—Iowa, Illinois and Alaska—“Vote American Justice Partnership (a creation of the No” campaigns had sharply different funding National Association of Manufacturers), and the profiles. American Tort Reform Association. In Iowa, not a single penny of spending was Justice Kilbride responded aggressively, raising reported in state high-court elections in the nearly $2.8 million, and benefiting from contri- 2000–09 decade. That changed abruptly in butions by major plaintiffs’ law firms that were 2010, when three justices who voted to strike routed through the Illinois Democratic Party. down a state law banning same-sex marriage sat Justice Kilbride retained his seat, gaining 65 for retention elections. The race became a raging percent of the vote. [See State in Focus: Illinois] statewide battle that attracted national attention and special-interest money. In Alaska, Chief Justice Dana Fabe faced a stiff challenge from a group with very limited fund- The “Vote No” campaign cost about $1 million, ing—simply through the power of a hot-button with out-of-state groups accounting for more social issue. A social conservative group called than $900,000. According to state disclosure Alaskans for Judicial Reform opposed Fabe records, the National Organization for Marriage because of her rulings in abortion cases. Even spent $635,000 on two TV ads, while four though the anti-Fabe campaign was organized other national groups, the American Family very late in the election season, and spent only a Association, the Family Research Council, few thousand dollars on TV advertising, Justice the Campaign for Working Families, and the Fabe gained only 55 percent of the vote. Citizens United Political Victory Fund, spent smaller amounts on the campaign, which ampli- Three other anti-retention challenges, by a fied the TV ads with a statewide bus tour. group called Clear the Bench in Colorado, a social conservative group in Kansas, and a tea Fair Courts for Us, a “Vote Yes” group led by for- party group in Florida, were poorly funded and mer governor Robert Ray, spent nearly $400,000 ultimately failed. to support the incumbents. However, they strug- gled to gain traction in a state where anger All this occurred in a year in which, nationally, over the court’s ruling on same-sex marriage “yes” vote totals for incumbent justices were remained intense outside such urban centers among the lowest ever. According to the Judicial as Des Moines and Ames. In the end, Justices Elections Data Initiative, justices on retention Marsha Ternus, Michael Streit and David Baker ballots received 67.09 percent of all votes, the all were turned out by margins of roughly 55 to worst rate since 1990—another time of broad 45 percent. [See State in Focus: Iowa] anti-government sentiment. In Illinois, a state that holds multi-candidate Collectively, the 2010 retention elections raised elections for open seats and retention contests the question whether future challenges will for incumbents, a longstanding history of costly become more common. By the end of the 2010 competitive elections crossed the line into a election season and the subsequent 2011 legisla- retention race. Justice Thomas Kilbride was the tive sessions, activists were exploring 2012 reten- target of the nation’s costliest retention fight tion challenges in Iowa, Indiana and Florida. since Rose Bird and two fellow justices were forced off the California Supreme Court in 1986.
8 Chapter 1: The Money Trail State in Focus: Iowa
Decision Puts Justices in National Cross-Hairs Of all the judicial elections in 2009 and 2010, none was more jarring, and more important in its long- term impact, than the Iowa retention election.
Three Iowa justices were ousted by voters in the wake of a single decision, Varnum v. Brien, which legalized same-sex marriage in Iowa.
Chief Justice Marsha Ternus and Justices David Baker and Michael Streit faced a well-funded, well- organized campaign that shifted the retention debate from one about the justices’ character and qualifications to one about same-sex marriage and other hot-button social issues.
Iowa for Freedom and its affiliated national anti-gay marriage groups sponsored two negative - TV ads attacking the justices for their votes to strike down Iowa’s ban on same-sex marriage. - The ads sought to cast the judges as willing to “usurp the will of the voters,” and advocated for Liberal out of control judges ignor their removal. By implying that if the court could legalize same-sex marriage, other pillars of ing our traditional values and legis American life might be in peril, the ads cast a wide net that preyed on the fears of moderates lating from the bench. and conservatives alike. One ad claimed that “none of the freedoms we hold dear are safe from judicial activism.”
The defeat of the three incumbents represented the first time in a quarter-century that multiple justices were defeated in a retention election over a controversial issue. (In 1986, death penalty rulings sparked the ouster of three California justices.)
While the initial ruling sparked wide public anger in Iowa, the marriage issue quickly became embroiled in national politics. According to reports, Republican presidential candidate Newt Gingrich arranged seed money to fund Iowa for Freedom, and national anti-gay groups including the National Organization for Marriage and the American Family Association provided most of the campaign’s nearly $1 million in funding.
The fall-out from Iowa’s retention election contin- Imposing their own values on Iowa. ues to be felt. After failing If they can in a noisy bid to impeach the four usurp the will other justices in the Varnum ruling, opponents of same- of voters and sex marriage have vowed to challenge their retention in 2012 and redefine mar- 2014. And Iowa’s merit selection system faced a failed legislative riage, what challenge in 2011. will they do to
More chillingly, the campaign was explicitly intended to send a warning to judges in all states, not just Iowa.
Bob Vander Plaats, a failed Iowa gubernatorial candidate who led the Vote No campaign, told his supporters, “We have ended 2010 by sending a strong message for freedom to the Iowa Supreme other long Court and to the entire nation that activist judges who seek to established write their own law won’t be tolerated any longer.”7 Iowa traditions and rights? Minnesota Congresswoman Michele Bachmann, like Gingrich a Republican presidential candidate looking for votes in Iowa’s 2012 caucuses, echoed these beliefs when she congratulated an audi- ence in Iowa for their successful effort to oust the three justices. Repeatedly deriding judges as “black-robed masters,” Bachmann said, “You said enough is enough and sent them packing, and I’m very proud of what you’ve done.”8
Storyboards Copyright 2010 TNS Media Intelligence/CMAG.
The New Politics of Judicial Elections: 2009–10 9 After Citizens United: Thus, by a near unanimous vote, the Supreme Patchwork Disclosure Court underlined the important role that trans- parency in political spending plays in ensuring Rules Leave Voters accountability of elected officials. Despite this in the Dark constitutional green light, however, many states When the Supreme Court issued its 2010 deci- have fallen far short of enacting or implementing sion in Citizens United v. FEC, it lifted decades- effective disclosure laws. old restraints and ruled that businesses can spend directly from their treasuries on federal Disclosure vs. Hidden Spending elections. The decision unleashed a tsunami of campaign cash in federal elections—and ended When states have an inadequate patchwork of similar restrictions in more than 20 states—but disclosure rules, the public can be left in the the decision also had a silver lining. dark. By an 8-1 vote, the Court declared campaign An example of starkly contrasting state dis- disclosure laws constitutional, adding, “With closure requirements is found in analyses of the advent of the Internet, prompt disclosure recent state supreme court spending in four of expenditures can provide shareholders and Midwestern states. The example shows that mil- citizens with the information needed to hold lions of campaign dollars spent to elect judges corporations and elected officials accountable may be concealed when disclosure laws are weak. for their positions and supporters. Shareholders In the historic 2010 Iowa ouster vote, state can determine whether their corporation’s politi- disclosure laws made it possible for the public cal speech advances the corporation’s interest to track major campaign support from out- in making profits, and citizens can see whether side groups. Of almost $1 million in cam- elected officials are ‘in the pocket’ of so-called paign spending to remove the judges, more moneyed interests.”9 than $900,000 came from out-of-state organi- zations, including the National Organization for Marriage based in Washington, D.C.; the American Family Association’s AFA Action, Inc. of Tupelo, Mississippi; and the Campaign for Working Families PAC of Arlington, Virginia. To defend the three state supreme court jus- tices facing retention votes, the Iowa-based Fair Courts for Us Committee spent $423,767. In Michigan, a staggering half of the more than $40 million spent on behalf of state Supreme Court candidates in the past decade was unre- ported due to lax disclosure laws, according to a report by a watchdog group, the Michigan Campaign Finance Network.10 Judicial election spending has been soaring in Michigan, which, when non-candidate spending is factored in, had the nation’s most expensive judicial elections in 2009-10. “The gross failure of campaign disclosure in the Michigan Supreme Court campaigns creates a toxic cloud that shadows the court’s presumed impartiality,” the Michigan Campaign Finance Network wrote in June 2011. It urged reform to
10 Chapter 1: The Money Trail “The gross failure of campaign disclosure in the Michigan Supreme Court campaigns creates a toxic cloud that shadows the court’s presumed impartiality.” —Michigan Campaign Finance Network
make campaign spending more transparent. [See percent of Democrats, said that “all campaign State in Focus: Michigan] expenditures to elect judges” should be publicly disclosed, so that voters can know who is seeking In Ohio, the Partnership for Ohio’s Future in to elect each candidate. Among voters surveyed, previous years identified companies and organi- 87 percent favored full disclosure of campaign zations that financed its TV ads. This year, in a expenditures in court elections, and only 8 letter to Ohio election officials, the Chamber- percent were opposed. affiliated group declined to do so, taking more than $1.5 million in special-interest spending out of the public eye. Secretive political spending is on the rise in Wisconsin’s elections. Outside groups spent a record $3.6 million on political advertising in the state’s spring 2011 supreme court race—without disclosing the identities of their funders. These developments are part of a larger, national trend. Independent spending in the 2010 federal elections was more than four times greater than it was in 2006—and more of this spending was done anonymously than ever before, largely due to the disclosure loopholes in federal law. Voters are now bracing for the most expensive and secretive election in American history as November 2012 approaches. While legislatures lag, voters overwhelmingly agree with the courts that robust disclosure laws benefit the public and democracy, especially in elections involving the courts. Michigan Campaign In a June 2010 national survey by Harris Finance Network’s June Interactive, 88 percent of Republicans, and 86 2011 Report
The New Politics of Judicial Elections: 2009–10 11 State in Focus: Michigan The onslaught of negative ads began in the summer of Post-Election Mystery: 2010, when the Democratic Who Paid for $4 Million Campaign Onslaught? Party launched several For a decade, the Michigan Chamber of Commerce was the internet video ads against state’s No. 1 spender on state supreme court elections, Robert Young, who is but in 2010, its name did not appear on a single TV ad or now the state’s chief campaign mailing. justice. Seeking to leverage public anger over the disastrous In a June 2011 report, the Michigan Campaign Finance BP-Horizon oil spill, the ads called Young a Network (MCFN) noted that the Michigan Chamber gave “puppet for the oil and gas industry” and said he was a nearly $5.4 million to a national “[f]riend to Big Oil . . . not to Michigan Citizens.” political action committee, oper- ated by the national Republican Michigan Democrats followed up with a searing barrage of Governors Association. After negative hits on Justice Young, claiming that he “gutted the forwarding the Michigan Chamber Michigan Consumer Protection Act” and “ruled that Michigan money to campaigns across the citizens can’t protect the environment,” and even going so country, the Republican Governors far as to claim that Justice Young said it’s “not his job” to be Association transferred $8.4 mil- a “fair and just” judge. lion to its Michigan committee, The which in turn sent $3 million to Democrats’ Texas, for the reelection campaign anti-Young What all this money purchased of Governor Rick Perry. In the end, about $5.2 million from campaign is clear: Some of the 2010 these labyrinthine transactions was routed to the Michigan reached campaign’s most relentlessly Republican Party. rock-bottom, negative ads. That amount closely matched the Michigan Chamber’s origi- however, nal check to the Republican Governors Association. And it when they closely approximated the $4.8 million that MCFN concluded ran an ad the state GOP spent on contributions and independent elec- that said Young “used the word ‘Slut!’ and ‘The “N” Word!’ tioneering in the 2010 Michigan Supreme Court election. in deliberations with other justices” and urged voters to call Young and “tell him we don’t need a racist or a sexist on the Because of Michigan’s opaque disclosure laws, which effec- Michigan Supreme Court.” tively make TV ad spending off limits to any transparency, it is impossible to confirm that Chamber money financed the Michigan Republicans responded to the Democrats’ attacks state Republican campaign. Likewise, it is impossible to iden- with a series of positive ads touting the experience of Young tify who ultimately bankrolled the state Democratic Party’s and Republican Mary Beth Kelly, arguing that Young and Kelly TV ad blitz, estimated at $1.5 million to $2.5 million, or the would be tough on crime. But outside groups supporting $800,000–$1.2 million spent on TV by the Law Enforcement the Republican candidates did not stick to the high Alliance of America, a group with ties to the National Rifle road. The Law Enforcement Alliance of Association. America joined the fray, contributing an ad that suggested Democratic What all this money purchased is clearer: some of the 2010 challenger Denise Langford Morris campaign’s most relentlessly negative ads. was “soft on crime for” three Michigan was a national leader in evidently disfavored groups: three areas in 2009-10: total cam- “rappers, lawyers, and child paign spending, total TV spending, pornographers.” and number of negative ads The election of two aired. According to TNS Media Republican justices, incum- Intelligence/CMAG estimates, bent Young and newcomer Mary the TV ads aired by the three Beth Kelly, tipped the court’s balance, but non-candidate groups totaled the Republicans’ 4-3 majority remains narrow— nearly $4.3 million, compared making future high-cost elections a virtual certainty in with a total of less than Michigan. $900,000 in ads by the four candidates on the ballot. Storyboards Copyright 2010 TNS Media Intelligence/CMAG.
12 Chapter 1: The Money Trail CHAPTER 2 Court TV 2009-10
Spending on Television ad campaigns was sponsored by a candidate Advertising in 2009 and on the ballot. The other four came from party organizations or special-interest groups. In 2010, 2010 Judicial Elections non-candidate groups accounted for nearly 50 The 2009–10 election cycle represented the percent of all high-court election ads. costliest non-presidential election cycle for As in prior years, non-candidate groups played TV spending in state supreme court elections. the attack-dog role, sponsoring a disproportion- Candidates, parties and special-interest groups ate number of negative ads while candidates spent a total of $16.8 million, just slightly more continued to run predominantly positive, tradi- than the $16.6 million spent on Supreme Court tionally themed advertisements. Though many TV advertising 2005–06.11 And for the first time of the non-candidate ads were funded by “tort since the “New Politics of Judicial Elections” reform” groups concerned with civil justice series began in 2000, attack ads targeted high- issues, the vast majority of these ads focused on court incumbents in retention elections. criminal justice themes, often involving mislead- TV advertising in 2009–10 also showed a heavy ing claims that judicial candidates were soft on reliance on independent ads by non-candidate crime. groups. Only one of the five most expensive
80 Number of Television Ad Airings 70 by Biennium, 2001-2010
60
50
40
Total Spot Count (in thousands) Total 30
20 2001–2002 2003–2004 2005–2006 2007–2008 2009–2010
Data courtesy TNS Media Intelligence/CMAG. In addition to the overall high levels of spending TV Advertising in on TV advertising, the number of advertise- the 2009-10 ments aired continued to rise: 46,659 total televi- Supreme Court Elections: sion spots ran in 2009-10, compared with 35,720 in the previous non-presidential cycle. A Detailed Analysis While the $16.8 million spent on TV in 2009-10 Judicial candidates, political parties, and outside makes it the most expensive non-presidential special-interest groups spent approximately $4.7 election cycle for election ads, the highest two- million on television advertisements in 2009 year total remains 2007-08, when candidates, and $12.1 million in 2010. Television spots aired political parties and outside special-interest in ten out of 13 states that held contested elec- groups combined to spend $26.6 million on tions for supreme court seats in 2010, as well as nearly 60,000 television spots in state supreme in four states that held retention elections. All court races. told, in 2010 judicial election TV spots aired in Alabama, Alaska, Arkansas, Colorado,13 Idaho, Overall, as in previous cycles, partisan races drew Illinois, Iowa, Michigan, Montana, North the most cash. In 2010, $9,134,460 was spent on Carolina, Ohio, Texas, Washington and West TV advertising in partisan Supreme Court Virginia. elections nationally, compared with $3,039,480 in nonpartisan elections. And in 2009, $3.35 According to satellite captures of advertising 14 million was spent on TV in Pennsylvania’s in major TV markets, $12,173,940 was spent partisan election, compared with $1.32 million nationally on TV air time in 2010 state supreme spent in Wisconsin’s non-partisan contest. That court elections. Of that, the lion’s share—more said, 2010 saw a previously unheard-of explo- than $10.5 million—was spent in the final sion of special-interest spending in nonpartisan month of the general election campaign. A retention elections, and this trend is likely to whopping $5.19 million—nearly 43% of total continue.12 spending for the year—was spent in the week leading up to the election alone, from Tuesday, Oct. 26 through Election Day.
Total Spending on TV Ads per Biennium, 2001–2010 $30
$25
$20
$15
Spending (in millions) $10
$5
0 2001–2002 2003–2004 2005–2006 2007–2008 2009–2010
Data courtesy TNS Media Intelligence/CMAG. 14 Chapter 2: Court TV 10 Monthly Spending Trend, All Groups, 2010
8
6
4
2 Amount Spent (in millions)
0 March April May July June August September October November
Data courtesy State Totals, 2010 State Totals, 2009 TNS Media (in order of total TV (in order of total TV Intelligence/CMAG. spending) spending) Spot Est. Spot Est. State Count Spending State Count Spending Michigan 10,781 $5,184,210 Pennsylvania 5,445 $3,346,302 Ohio 7,472 $1,962,340 Wisconsin 4,906 $1,321,171 Alabama 9,238 $1,915,870 Grand Illinois 3,834 $1,677,350 Totals 7,715 $4,667,473 Arkansas 1,608 $450,320 North Carolina 1,499 $353,110 Iowa 638 $293,030 Colorado* 1,052 $134,820 Montana 439 $102,720 Texas 150 $45,980 $12,173,940 Idaho 336 $26,200 West Virginia 175 $26,060 was spent nationally Alaska 30 $1,930 on TV air time in Grand Totals 37,252 $12,173,940 *In Colorado no advertisements endorsing or oppos- 2010 state supreme ing candidates were aired, though a nonpartisan coalition sponsored a public education campaign to court elections. provide voters with information on the state’s judicial elections. See note 13.
The New Politics of Judicial Elections: 2009–10 15 Spending by Non-Candidate list, Illinois Justice Thomas Kilbride, came in Groups Remains High in 2010 second, spending about $1.6 million on TV in In 2010, spending on supreme court TV adver- his record-setting bid for retention. [See State in tising was split relatively evenly between judicial Focus: Illinois] The Michigan State Democratic candidates and non-candidate groups. Non- Party ranked third ($1.4 million); the Chamber candidate groups spent $5.98 million (just over of Commerce-affiliated Partnership for Ohio’s 49% of all spending on television airtime), while Future ranked fourth, spending $846,000 on candidates spent $6.19 million. TV ads supporting two Republican candi- dates in contested Ohio elections; and the Four of the top five TV spenders were non- Law Enforcement Alliance of America, which candidate groups. The Michigan Republican bought $803,000 worth of TV ads supporting Party ranked first overall in TV spending ($2.0 two Republican candidates for the Michigan million). The only candidate on the top-spender Supreme Court, ranked fifth.
Ads Aired, by Sponsor, Sponsorship and Content: 2010 Who Paid for What Ads Analyzing the 2010 totals in terms of the num- bers of TV advertisements aired (as opposed . to the number of dollars spent) reveals that candidates purchased 20,296 television ad spots, or, 59.6% of the 37,252 total television spots purchased. While candidates paid for the major- ity of TV spots overall—just under 60%—they . paid for only about a quarter of attack ads— . 27%. Non-candidate groups, including special interests and political parties, accounted for 3 of every 4 attack ads. Advertisements aired by parties and special- interest groups in 2010 often sought to play Candidates on voters’ ideological leanings, sensationalizing rather than focusing on candidates’ backgrounds Party or qualifications. Most notably, in 2010 almost 64% of advertisements sponsored by parties Attack Ads Aired, by Sponsor, Groups 2010 focused on criminal justice themes, often accus- ing disfavored candidates of being soft on crime. Nationally, while the majority of ads were run by candidates themselves, the majority of attack ads . were run by the state political parties or indepen- . dent groups. Almost half (49.1%) of the attack ads were run by parties, even though parties only accounted for 23.1% of the total number of ads run nationally. By contrast, more than 90% of the ads run by candidates focused on issues other than criminal justice: fewer than one ad in 10 sponsored by candidates referenced whether the . candidate (or opponent) was “tough on crime.” Data courtesy TNS Media About half—46.2%—of ads run by parties Intelligence/CMAG. were attack ads directly targeting opposition
16 Chapter 2: Court TV Sponsors, 2010 Supreme Court Elections
State Sponsor Spot Count Est. Spending Alabama Total 9,238 $1,915,870 Candidate 8,294 $1,541,680 Special Interest 944 $374,190 Alaska Total 30 $1,930 Special Interest 30 $1,930 Arkansas Total 1,608 $450,320 Candidate 1,608 $450,320 Colorado Total 1,052 $134,820 Special Interest* 1,052 $134,820 Idaho Total 336 $26,200 Candidate 336 $26,200 Illinois Total 3,834 $1,677,350 Candidate 3,715 $1,631,490 Special Interest 119 $45,860 Iowa Total 638 $293,030 Special Interest 638 $293,030 Michigan Total 10,781 $5,184,210 Candidate 2,245 $902,420 Special Interest 912 $803,770 Party 7,624 $3,478,020 Montana Total 439 $102,720 Candidate 439 $102,720 North Carolina Total 1,499 $353,110 Candidate 1,499 353,110 Ohio Total 7,472 $1,962,340 Candidate 5,067 $1,116,050 *In Colorado no advertisements Special Interest 2,405 $846,290 endorsing or oppos- Texas Total 150 $45,980 ing candidates were Candidate 131 $40,410 aired, though a Party 19 $5,570 nonpartisan coalition sponsored a public West Virginia Total 175 $26,060 education campaign Candidate 175 $26,060 to provide voters with information on the state’s judicial elec- Grand Totals 37,112 $12,132,100 tions. See note 13.
In 2010, parties and independent groups accounted for almost 50% of allThe New PoliticsTV of Judicialspending. Elections: 2009–10 17 candidates and another 17.6% contrasted can- Candidates in nonpartisan races aired no attack didates, often using negative portrayals of the ads. However, as shown by the increasingly large opposing candidate. Only 36% of ads run by infusions of cash from special-interest groups for parties sought to promote a candidate with- attack ad buys in nonpartisan races over the past out engaging in any mudslinging. In contrast, decade, the nonpartisan label offers decreasing 81.36% of candidate-sponsored ads were positive insulation against big-money campaigns in both promotions of that candidate and only 18.64% contested and one-candidate retention elections. of candidate-sponsored ads even mentioned an The judicial election campaigns of 2010 provide opposing candidate. further support for this distressing assessment. The nonpartisan retention election of Justice Thomas Kilbride to the Illinois Supreme Court Party Ad Tone is a prime example of this trend. [See State in Focus: Illinois]
2010 Elections— . State Snapshots ➜ . ➜ In Ohio, four candidates competed for two supreme court seats. (An addi- tional Ohio Justice, Paul Pfeifer, ran unopposed in a vote in which no TV advertising aired.) Ohio ranked second in 2010 with $1.9 million in overall . TV airtime spending. Justice Judith Ann Lanzinger squared off against challenger Mary Jane Trapp and Chief Promote Justice Eric Brown faced a challenge from Justice Maureen O’Connor. The Attack two Republican candidates and a group affiliated with the U.S. and Ohio Contrast Chambers of Commerce spent more than $1.6 million on TV ads in support Candidate Ad Tone of Republican candidates. Democratic candidates spent just over $300,000 on TV. The Republican candidates swept the two contested races, defeating the . incumbent Democratic chief justice. ➜ . ➜ In 2010, more than $1.9 million was spent on TV ads for three contested seats on the Alabama Supreme Court; Republicans captured all three seats. Although the clean sweep by Republicans suggests a largely uncom- petitive campaign, the races gave rise to some heat- .
Promote A Supreme Court Justice Attack who doesn’t Data courtesy pay his taxes. That’s really TNS Media Intelligence/CMAG. Contrast all you need to know about Tom 18 Chapter 2: Court TV Parker. [Karen Baker]: “My but she taught me Work hard and be fair, I as your next Supreme grandmother only had more about wisdom promise you that these Court justice.” [PFB: an 8th grade educa- and justice than any will be the principles JUDGE KAREN BAKER tion. law book. that will guide me.
Previous page’s Alabama ad storyboard and the above’s Arkansas ad storyboards Copyright 2010 TNS Media Intelligence/CMAG.
Party Ads ed advertising. During the Republican Mentioning Criminal Justice primary, incumbent Mike Bolin and challenger Tracy Cary both sponsored negative ads. As the Gulf Coast oil spill made headlines, Tracy Cary claimed that Justice Bolin was funded by BP oil. Justice Bolin responded by painting his opponent as a liberal who had “never . even been a judge.” During the general election, the race between incumbent Tom Parker and challenger Mac Parsons was characterized by negative attacks, with Parsons claiming that Justice . Parker evaded his taxes for years while serving on the bench. ➜➜ There were two contested seats on the Mentions Doesn’t Arkansas Supreme Court in 2010. Mention While the state set a new fundraising record in 2010, and while candidates spent $450,000 on television advertis- Candidate Ads ing, no attack ads aired, and no outside Mentioning Criminal Justice groups took to the airwaves. Instead, the four competing candidates each aired biographical TV spots touting their fair- . ness and traditional values. ➜➜ Alaska: In the final days before Election Day, the socially conservative group Alaskans for Judicial Reform urged Alaska voters not to allow “bad judges to shred the will of the people,” stat- ing that Fabe had “opposed parents rights [and] forced taxpayers to pay for abortions.” The group spent just under . $2,000 to run 30 anti-Fabe ads in the week immediately preceding the elec- tion. Mentions Doesn’t Mention Data courtesy TNS Media Intelligence/CMAG.
The New Politics of Judicial Elections: 2009–10 19 State in Focus: Illinois The anti-Kilbride campaign produced probably the most outrageous ad of [Announcer]: the entire 2010 judicial election season. Dressed in orange jumpsuits, actors Convicted of stab- posing as convicted criminal recounted the grisly details of their crimes, and bing his victim then said that Justice Thomas Kilbride had taken their side and voted against twenty-four times, law enforcement and victims. of shooting his ex- These “soft on crime” ads, widely condemned as misleading, were financed girlfriend and mur- by groups focused solely on civil lawsuit awards. According to state cam- dering her sister, paign finance records, the Illinois Civil Justice League—a major player in of sexual assault a record-shattering 2004 election between Lloyd Karmeier and Gordon on a mom and her Maag—spent $688,000. Most of the League’s money came from the U.S. daughter. Chamber of Commerce ($150,000), a National Association of Manufacturers On appeal, Judge spinoff group ($180,000), and the American Tort Reform Association Thomas Kilbride ($89,000). sided with them Justice Kilbride fought back against his critics, and aired an advertisement over law enforce- in which he said, “As a judge, I’ve tried every day to be fair and evenhanded, ment. and most of all, to make sure the law works for everyone, not just the Other judges over- wealthy and well connected.” According to campaign filing records, Kilbride ruled Kilbride, and raised about $2.8 million, much of it from the state Democratic Party. their appeals were denied. In the months leading up to the election, the Illinois Democratic Party received more than $1.5 million from major plaintiffs’ law firms—almost the Thomas Kilbride same amount it then contributed to Kilbride. The law firms included many choose criminals’ that also spent heavily in the 2004 Karmeier-Maag race, in which a total rights way more of $9.3 million was raised. Among the biggest players were: Clifford Law than any other Offices ($125,000 to the state Democrats in 2010, $150,000 in 2004); Justice. Power, Rogers & Smith ($125,000 in 2010, $200,000 in 2004); Cooney and Vote no on reten- Conway ($125,000 in 2010, $140,000 in 2004); and Corboy & Demetrio tion of Thomas ($100,000 in 2010, $100,000 in 2004). Kilbride. Vote down Justice Kilbride was retained on November 2, as were Justices Charles ballot. It’s a top Freeman and Robert Thomas, who faced no organized opposition. Kilbride’s priority. race was the most expensive retention election ever in Illinois, and the sec- [PFB]: JUSTPAC ond costliest ever nationally (behind only the 1986 retention election ouster of California Chief Justice Rose Bird and two fellow justices). Kilbride raised more money in one election than the $2.2 million raised by candidates in all retention elections, nationally, from 2000–2009.
[Tom Kilbride]: “I’m I’m here to tell you flat [Tom Kilbride]: Tom Kilbride. I’ve been out these attacks are “demand fairness in attacked harshly and lies and distortions.” elections for the inde- repeatedly and falsely. pendence and integrity of our court system.”
[Announcer]: Vote “Yes” for Tom Kilbride. Storyboards Copyright 2010 TNS Media Intelligence/CMAG.
20 Chapter 2: Court TV CHAPTER 3 Implications of the 2009–10 Elections
2011 Legislative While many of the attacks failed to stick, some Aftershocks Follow did, especially against widely popular public financing laws. The season raised the distinct 2010 Earthquake possibility—or likelihood—that the attacks The confluence of negative, costly television will continue into the 2012 legislative sessions. ads and secretive, special-interest spending con- Meanwhile, experts predict that 2012 will see the tinued to define contested judicial elections in most expensive and secretive election season in 2009–10—and also spread to previously sedate American history. retention elections. But the impact of the most recent election cycle did not end at the ballot box. Public Financing After Iowa voters ousted three incumbent Special-interest contributions pose a tremendous justices, and four other states saw organized threat to the public’s faith in fair and impartial attempts to unseat incumbents, emboldened law- courts. Overwhelming bipartisan majorities are makers pressed the assault on impartial courts in extremely wary of the role that money plays the 2011 legislative season. Cumulatively, these in judicial elections and believe that campaign 15 attacks represented a historically significant funding support buys favorable legal outcomes. concerted attack on judicial independence, and Among the most effective reforms to confront on various reforms intended to reduce the influ- these concerns is public financing. By providing ence of money and politics on state courts. The public funds to qualifying judicial candidates, serious challenges to fair and impartial courts public financing reduces the need for judges to included: “dial for dollars” from the parties and lawyers who appear before them. Public financing can ➜ ➜ Attempts to defund or repeal public have positive effects on all elections, but it plays financing of judicial elections; a particularly valuable role in judicial elections, ➜➜ Politically motivated impeachment where it not only helps eliminate any risk of threats—the most ever recorded in one quid pro quo corruption, but also protects elected legislative season; judges against even the appearance of bias in the ➜➜ Attacks on judicial appointment and courtroom. retention election systems; Substantial public attention has focused on a ➜➜ A scheme to split the Florida Supreme U.S. Supreme Court decision issued in June Court, in what critics said was court- 2011—Arizona Free Enterprise Club v. Bennett— packing; and which struck down a narrow provision of Arizona’s public financing system. Despite some ➜➜ Severe judicial budget reductions that pronouncements that the case sounded the death threaten to undermine courts’ ability to maintain necessary functions as the knell for public financing as a whole, Arizona nation strives to emerge from budgetary Free Enterprise Club expressly held that the crises. foundation for public financing is constitution- ally sound. And the case did not deal specifically kill the public financing program after just one with judicial elections at all, because the Arizona election. law at issue involved only legislative and execu- In West Virginia, legislators deflated hopes for a tive races. As a result, there are strong arguments pilot public financing program for state supreme that judicial public financing would survive a court campaigns in 2012 when they failed to litigation challenge like that in Arizona Free enact a lawyers’ fee important to fully fund the Enterprise Club.16 program. This occurred despite the damage Regardless of the vulnerability of judicial public to public confidence in West Virginia courts financing to litigation attacks, after the 2010 that occurred after a coal executive’s $3 million election cycle, far greater harm to public financ- campaign in 2004 to elect a judge of his choice. ing for judicial elections came at the hands That campaign led to the U.S. Supreme Court’s of state legislatures. 2009 ruling Caperton v. Massey ruling, which underlined the threat that judicial campaign In the four states that have adopted public spending poses to impartial courts. financing for judicial elections over the last decade, legislators in two mounted furious And in North Carolina, which pioneered public attacks against the programs. Most notably, the financing of judicial elections, critics launched a Wisconsin legislature took aim at judicial public move to repeal public financing (though it was financing in the Badger State. at least temporarily derailed). A legislator tried to introduce a measure ending public financing In 2009, after two particularly vitriolic and as an amendment on the House floor, but with- expensive Wisconsin Supreme Court contests,17 drew it after “bedlam” erupted.20 The legislature the Wisconsin legislature enacted the Impartial adjourned for the summer without enacting Justice Act to provide public financing to state another plan to make all judicial elections par- supreme court candidates. tisan contests. April 2011 saw the first supreme court election Republican opponents of public financing led in which Wisconsin’s public financing program the efforts in all three states, although polls, was active. Three of four supreme court candi- including a 2011 Justice at Stake survey, show dates—including the final two contestants— broad, bipartisan support for public financing took advantage of the new system and waged of judicial elections.21 Since its launch in the competitive campaigns without relying on con- 2004 Supreme Court election, North Carolina’s tributions from parties with a direct interest in public financing system has been a national how the court decides cases. model. About 75 percent of all candidates have Public financing allowed the candidates to participated in the voluntary system, including eschew the traditional “dash for cash” fund- women, minorities and members of both parties. raising approach, but this did not mean over- Public financing is popular with North Carolina all spending levels dropped. Instead, a heated judges and voters because it frees up candidates political climate transformed the supreme court to talk with voters instead of campaign donors, election into a proxy battle over a controversial greatly reducing the perception of special-inter- law slashing state workers’ collective bargaining est bias. Wanda Bryant, a judge on the North rights, and special interests spent a record break- Carolina Court of Appeals, said, “It makes all ing amount of cash on supreme court television the difference. I’ve run in two elections, one advertisements.18 with campaign finance reform and one without. But even while the historic level of special- I’ll take ‘with’—any day, anytime, anywhere.” interest campaign spending in 2011 suggested a greater need for investing in ways to maintain the fairness and impartiality of the judiciary,19 legislators agitated against the Wisconsin pro- gram. In a serious blow to defenders of impartial courts, the legislature used a biennial budget to
22 Chapter 3: Implications of the 2009–10 Elections Impeachment Threats: Attacks on Iowa, New Hampshire Merit/Retention and Elsewhere The challenges for advocates of merit selection While the legislative attacks on public financing began on Nov. 2, 2010, when voters in Nevada were troublesome signs for advocates seeking rejected a ballot measure to establish a system to insulate judicial elections from money and in which a non-partisan commission reviews partisanship, 2011 also saw explicit attempts by judicial candidates and forward nominations to lawmakers to attack sitting judges. the governor; the governor appoints judges; and once on the bench, judges face periodic retention The most immediate aftershocks from the 2010 elections. Once legislatures gathered in January judicial election season were seen in Iowa, where 2011, more systemic assaults raged against merit three incoming freshman lawmakers vowed to selection systems. Overall, there were efforts to impeach four justices who were not on the ballot weaken or eliminate merit selection of judges in the recently concluded retention election. in at least seven states: Arizona, Florida, Iowa, Defying solid voter opposition, the legislators Kansas, Missouri, Oklahoma, and Tennessee. pushed a resolution contending the court had These states represent nearly one-third of the overstepped its authority by permitting same-sex 24 states that use merit selection in appointing marriage. Although Iowa’s Constitution spells high-court justices (of those, 16 hold periodic out that a justice can be impeached only “for retention elections for justices). any misdemeanor or malfeasance in office,” the In Arizona, for example, bills were introduced resolution did not allege any ethical or criminal to end retention elections and to force appointed wrongdoing. A wide range of observers con- judges to periodically return to the legislature for demned the calls for impeachment, and when confirmation, a process used in very few states. Iowa’s Republican governor and House speaker Under one proposal, judges would go through both spoke out against it, the impeachment legislative hearings and face potential retaliation threat fizzled. from political enemies. Currently, appointed Yet Iowa was not alone. According to the judges in Arizona face periodic retention elec- National Center for State Courts, 2011 likely tions, where voters have the power to grant or marked the “single biggest year in history for refuse additional terms on the bench. 22 efforts to impeach state judges.” In New In Iowa, proposals included a bill to eliminate Hampshire, a controversy over whether to merit selection for appellate judges and a consti- impeach a family-law judicial officer over accu- tutional amendment to eliminate merit selection sations that he altered official documents was of supreme court justices and district turned by legislators into a blank check to court judges. investigate all state trial judges, who had not been identified in connection with any alleged wrongdoing. In Oklahoma, there was a bid to impeach a judge who accept- ed a plea agreement in a child molestation case that had been approved by the prosecution, the defense, and the victim’s parents.
The New Politics of Judicial Elections: 2009–10 23 Attacks on Merit Selection, 2011
STATE MEASURE CATEGORY COMMENT
Constitutional End Merit Selection: Governor to fill judicial vacancies with Senate confirmation. HCR 2020 Amendment Change Retention: Reappointment and legislator reconfirmation required for new terms.
Constitutional HCR 2026 Change Merit Selection: Restrict to counties with 500,000 or more people (now 250,000). Amendment
SB 1482 Bill Evaluation: Requires online posting of all decisions by an appellate judges facing re-election.
Change Merit Selection: Requires Senate confirmation of judicial appointees. Constitutional SCR 1040 Change Merit Selection: Bar loses power to fill seats on nominating panels. Amendment Change Retention: Ends retention elections, requiring legislative reconfirmation.
Constitutional Change Merit Selection: SCR 1042 Amendment Governor chooses lawyer members of nominating panels, instead of bar.
Constitutional SCR 1043 Change Merit Selection: Panels would list all legally qualified applicants, and rank by merit. Amendment
Arizona Constitutional Change Merit Selection: SCR 1044 Amendment Governor could ignore nominating panel and appoint any candidate.
Constitutional SCR 1045 Change Merit Selection: State bar would not nominate attorney members for judicial panels. Amendment
Constitutional Change Merit Selection: Governor’s judicial appointees subject to Senate confirmation. SCR 1046 Amendment Change Merit Selection: Would revise membership of judicial nominating commissions.
Constitutional Change Retention: Senate would vote on retaining a judge for additional terms. SCR 1048 Amendment Change Retention: Judges would stay on bench unless two-thirds of the Senate votes against.
Change Merit Selection: Would revise judicial nomination commission membership. Constitutional SCR 1049 Change Merit Selection: Expand from three to seven the nominees submitted to a governor. Amendment Change Merit Selection: Would require Senate confirmation of governor’s nominees.
End Merit Selection: Constitutional HJR 1097 Eliminate nominating panels for supreme court and district courts of appeals. Amendment Florida End Merit Selection: Governor to appoint, with Senate confirmation.
24 Chapter 3: Implications of the 2009–10 Elections STATE MEASURE CATEGORY COMMENT
Change Merit Selection: HB 343 Bill State bar members of Judicial Nominating Commissions would have advisory role only.
Change Merit Selection: HB 416 Bill State bar members and presiding judge on Judicial Nominating Commissions advisory only.
End Merit Selection for Court of Appeals: HB 429 Bill
Iowa Governor would appoint appellate judges, Senate would confirm.
Constitutional Term Limits: HJR 13 Amendment Limits Supreme Court and district court judges to two full terms totaling 12 years.
Constitutional SJR 13 End Merit Selection: Would replace with judicial elections. Amendment
End Merit Selection: HB 2101 Bill For appellate court only; Senate would confirm nominations from governor
Kansas Constitutional End Merit Selection: HCR 5015 Amendment For Supreme Court; Senate would confirm nominations from governor.
Change Merit Selection: Constitutional HJR 18 Would increase judicial nominees submitted to a governor, from three to five. Amendment Change Merit Selection: Governor could reject first slate of names and receive a second list.
Missouri Constitutional Change Merit Selection: Would expand judicial nominating commissions. SJR 17 Amendment Change Merit Selection: Would reduce ratio of attorney members to non-attorney members.
Constitutional HJR 1008 End Merit Selection: Partisan elections for all appellate judges. Amendment
Constitutional Change Merit Selection: Governor could ignore commission nominees for appellate court.
Oklahoma HJR 1009 Amendment Change Merit Selection: Senate confirmation required of governor’s appointments.
Change Retention: Requires appellate judges to obtain 75% of retention election vote (now HB 1702 Bill 50%).
Change Merit Selection: Governor can ignore names submitted by nominating panel. HB 1017 Bill Change Retention: Appointed judge would later have to run in a contested election.
Tennessee HB 231 Bill End Merit Selection: Supreme court justices would be chosen through nonpartisan elections.
End Merit Selection: Requires popular election of trial, appellate, judges, and high-court HB 958 Bill judges.
The New Politics of Judicial Elections: 2009–10 25 In Florida, the House Speaker pushed a mea- Bar Association president, wrote in April 2011. sure to oust judges unless they won a 60 per- “We’ll wind up paying more, waiting longer cent supermajority in a retention election vote, and facing a highly politicized court. Back in increased from 50 percent under current law. the 1930s, near the beginning of his presidency, In Tennessee, bills were introduced to replace Franklin D. Roosevelt tried to pack the U.S. retention elections with competitive elections, or Supreme Court, but the American people had to require appellate judges to receive 75 percent the good sense to reject it.”23 of the retention vote to stay on the bench. Only two states in the country, Texas and Other anti-merit attacks included proposals to Oklahoma, have such bifurcated systems, and enact partisan election of judges; shut down in Texas, a Supreme Court justice in 2011 casti- citizen nominating commissions so that gov- gated the split system as archaic and ineffective. ernors can appoint judges without any checks “Truth be told—and this particular truth has or balances; allow governors to ignore citizen been told repeatedly—the State’s entire Rube commissions; and remove state bar members Goldberg-designed judicial ‘system’ is beyond from nominating commissions. For the most piecemeal repair; it should be scrapped and part, these attacks faltered—but there were rebuilt top-to-bottom,”24 Justice Don Willett exceptions. Arizona legislators put a proposed wrote in a case involving a jurisdictional dispute constitutional amendment on the 2012 ballot between the state’s top civil and criminal courts. to reduce the state bar’s role in judicial selec- After the Florida House approved the court- tion. Also in 2012, voters in Florida will decide splitting plan, the Senate would go no further whether to require Senate confirmation of state than to authorize a $400,000 study of the state Supreme Court justices appointed by the gover- Supreme Court’s efficiency. Even that measure nor. In the other direction, legislative campaigns died when Governor Rick Scott vetoed the study remained active in Minnesota and Pennsylvania as he worked to staunch a budgetary hemor- to allow voters to decide whether to shift to a rhage. merit selection system. In Pennsylvania, four current and former governors endorsed the plan at a June 2010 event. Funding Cuts Court Disaster Florida: Court-Splitting, or As courts endeavor to preserve their indepen- Court-Packing? dence and impartiality in the face of increasingly expensive, negative and special-interest-domi- Are two Supreme Courts really better than one? nated judicial elections and attacks on judicial Florida lawmakers had to ponder that question power, their ability to safeguard fundamental after the House Speaker aggressively pushed principles of democratic governance is further a plan to create separate panels for civil and constrained by resource limitations. criminal cases. Across the country state judiciaries are making With the passage of this plan widely seen as do with less, as legislatures impose recession- inevitable, a new coalition of prominent lawyers driven budget cuts across the board. More than and judges, Floridians for Fair and Impartial 30 states experienced judicial budget reductions Courts, led a potent counterattack, denouncing in fiscal year 2010, while 28 states saw reductions the plan as costly and unnecessary. Other crit- in fiscal year 2011. In many states, these cuts ics, noting that the state’s Republican governor will continue, and potentially even accelerate, in would appoint three new justices, said it was a fiscal year 2012.25 Strapped for cash, courts have brazen power grab unparalleled since President reduced hours of operation, fired staff, frozen Franklin Delano Roosevelt’s failed attempt to salaries and hiring, increased filing fees, diverted pack the U.S. Supreme Court. “This bad idea is resources from civil trials—which in some cases a bad deal for Floridians in every way,” Stephen suspended jury trials—and, in the worst cases, Zack, a Miami lawyer then serving as American closed courts entirely.
26 Chapter 3: Implications of the 2009–10 Elections California’s judiciary has absorbed a $350 mil- Looking Ahead: lion budget reduction, which Chief Justice Tani More Assaults Expected Cantil-Sakauye predicts will be “devastating and crippling” to the state’s ability to dispense More assaults on impartial courts, taking a justice.26 Similar sounds of warning are being range of different forms, are on the horizon. heard across the country. After New York courts They include special-interest election spending, were forced to lay off more than 350 court retention election challenges, and further attacks employees to offset $170 million in cuts to the on merit selection of judges. state judiciary’s budget, 65 dismissed part-time While funding for courts continues to fall, the judges continued to work as volunteers to ensure ability of special interests to spend freely on that the courts’ indispensable work would not high-court elections, unfettered and in secrecy, grind to a halt. Iowa’s court system today is will be greater than ever in 2012, given con- operating with a smaller workforce than it had in tinued court rulings and legislative attacks on 1987—even though, in the same period, the total campaign finance laws. number of cases in Iowa courts has doubled. There were strong indications of likely retention These cuts are coming at precisely the time when challenges in three states. In Iowa, organizers courts desperately need more, not fewer, resourc- of the 2010 “Vote No” campaign have vowed to es. State courts confront elevated numbers of challenge another participant in the same-sex foreclosure filings, consumer debt proceedings marriage decision in 2012, while in Indiana, and domestic violence cases—all of which rise there were early threats of a campaign to unseat in tough economic times—along with sustained the author of a bitterly controversial decision numbers of other proceedings. about resisting illegal police entry into a person’s Unlike other government agencies, courts can- home. In Florida, a group announced it was not simply cut some services; they have a consti- mounting a 2012 campaign to oust three state tutional duty to resolve criminal and civil cases. Supreme Court justices over a court decision And because about 90% of court budgets go to that removed health care reform from the 2010 personnel costs, cutting staff is the only way for ballot in Florida. courts to absorb reductions. Eliminating judicial And in Arizona and Florida, ballot measures employees means that some citizens looking would weaken key features of existing merit to the courts for justice will walk away empty- selection systems. handed. These draconian cuts also contain alarming long-term implications. Several studies In early 2011, as Iowa’s legislature was wrestling have concluded that counties and states would with noisy, but ultimately unsuccessful, calls to suffer dramatic economic losses as a result of impeach four justices, Chief Justice Mark Cady court closings.27 of the Iowa Supreme Court addressed legislators on the state of Iowa’s courts. Cady’s warning As the second decade of the twenty-first cen- was grim, and applied to courts across America: tury begins, state judiciaries are caught in a vise, “This branch of government is under attack.” squeezed on one hand by interest groups waging an unrelenting war to impose partisan political agendas on the bench and on the other by dev- astating fiscal pressures.
The New Politics of Judicial Elections: 2009–10 27 APPENDIX
An appendix containing a comprehensive list of all television advertisements aired in 2010, including sponsorship, tone, content, and cost, is available for download at: http://newpoliticsreport.org. ENDNOTES
1. James Sample et al., The New Politics of Judicial 7. See http://iowaforfreedom.com/. Elections 2000-2009: Decade of Change (2010), 8. Andy Barr, Michele Bachmann Calls Judges ‘Black- available at http://www.brennancenter.org/NPJE09 Robed Masters’in Iowa, Politico (March 23, 2011), (“New Politics 2000-2009”). available at http://www.politico.com/news/sto- 2. These figures include money from three sources: ries/0311/51847.html. candidate fundraising totals, many non-TV expenses 9. Citizens United v. Fed. Election Comm’n, 130 S. Ct. by non-candidate groups, and estimates of indepen- 876, 915 (2010). dent television expenses. Under Michigan campaign law, the first two categories are documented in state 10. See Michigan Campaign Finance Network, $70 election filings, but independent TV spending is not. Million Hidden in Plain View, (June 2011), available The different totals reflect the difference between at http://www.mcfn.org/pdfs/reports/MICFN_ two methods of estimating of total TV spending. HiddenInPlainViewP-rev.pdf. The higher TV estimate, by the Michigan Campaign 11. All data on ad airings and spending on ads are calcu- Finance Network (http://www.mcfn.org/pdfs/reports/ lated and prepared for the Brennan Center by TNS MSC_10.pdf), is based on the examination of records Media Intelligence/CMAG, which captures satellite of television stations across Michigan to log ads aired data in the nation’s largest media markets. CMAG’s in the high-court race. The lower TV estimate, by calculations do not reflect ad agency commissions, TNS Media Intelligence/CMAG, is based on an the costs of producing advertisements, or ad purchases analysis of satellite ads monitored on satellite technol- limited to local cable channels. The costs reported ogy, and does not include cable TV ads. See note here, therefore, understate actual expenditures and 11 for a description of the TNS Media Intelligence/ should be considered conservative estimates of actual CMAG methodology. TV spending. These estimates are useful principally 3. A similar pattern occurred in the April 2011 for purposes of comparing relative spending levels Wisconsin Supreme Court election, when Justice across states, and across time. David Prosser and challenger JoAnne Kloppenburg, 12. The highest levels of TV spending by special interest each receiving $400,000 in public financing, were groups ever seen in a judicial election took place in heavily outspent by special-interest groups. The candi- a non-partisan election, Wisconsin’s hotly contested dates accounted for less than 20 percent of all money April 2011 race. See Press Release, Brennan Center for spent on election communications. Justice, “Final Numbers: Special Interest Spending 4. Numbers for three groups that spent in Michigan— Near $3.6 Million in Wisconsin,” Brennan Center for the state Republican and Democratic parties and the Justice, (Apr. 6, 2011) available at http://www.bren- Law Enforcement Alliance of America‚ reflect TV nancenter.org/ WI_2011_Final; Larry Sandler, data capture by TNS Media Intelligence /CMAG for “As Supreme Court race nears, TV ad spending soars”, the Brennan Center for Justice. A full explanation of Milwaukee Journal Sentinel, March 30, 2011. this technology is available in Chapter 2. Calculations 13. In Colorado, no candidates or outside groups aired by the Michigan Campaign Finance Network, which advertising endorsing or opposing specific judicial examined TV station ad logs arrived at a higher candidates. Several groups in Colorado did, however, spending total for all three groups. The MCFN data sponsor a public education campaign to provide voters are available at: http://www.mcfn.org/pdfs/reports/ with impartial, nonpartisan information about the MS_10.pdf judges appearing on Colorado’s ballot. These groups 5. These advertisements are not reflected in the TNS — including the Institute for the Advancement of the Media Intelligence/CMAG estimates cited throughout American Legal System, the League of Women Voters this report. As explained in note 11, below, because of Colorado, the Colorado Judicial Institute, and TNS/CMAG data relies on satellite capture of televi- the Colorado Bar Association — launched a website sion advertising, small ad buys on local channels are called “KnowYourJudge.com,” and produced radio not included in the estimates. and television public service announcements alerting voters to available resources that provided information 6. Press Release, Brennan Center for Justice, “2010 relating to Colorado’s judicial elections. Judicial Elections Increase Pressure on Courts, Reform Groups Say,” Brennan Center for Justice, 14. As noted, all data on ad airings and spending on (Nov. 3, 2010) available at http://www.brennancenter. ads derived from analysis performed by TNS Media org/judicial_pressure. Intelligence/CMAG. See note 11. 15. See, e.g., Adam Skaggs, Brennan Center for 19. Incumbent Justice David Prosser and his challenger, Justice, Buying Justice: The Impact of Citizens JoAnne Kloppenburg (who each received $400,000 United on Judicial Elections 4-7 (2010), available in public financing for the primary and general elec- at http://www.brennancenter.org/buying_justice (col- tions) were far outspent by special interest groups lecting survey data on national and state level data (which spent at least $3.6 million in the 2011 race). demonstrating that Americans believe, by significant But a comparison with the heavily-contested 2008 margins, that campaign spending has an impact on race shows that the new public financing system was judicial decision-making). A recent national survey not responsible for the high levels of outside spend- conducted by Harris Interactive showed widespread, ing: in Wisconsin’s 2008 high court election outside bipartisan concern about the escalating influence of groups spent a then-record $3.38 million on TV ads— money in judicial elections and its potential to erode only slightly less than was spent in 2011. In contrast impartiality. See Press Release, Justice at Stake, “Solid to 2011, however, the candidates in 2008 raised their Bipartisan Majorities Believe Judges Influenced by funds from private sources. The victorious candidate, Campaign Contributions” (Sept. 8, 2010), available Justice Michael Gableman—who was subsequently at http://tinyurl.com/2c422fs. Among the find- investigated for ethics violations related to his cam- ings of the survey were the following: 71 percent of paign television ads—raised $443,839 in private Democrats, and 70 percent of Republicans, believe contributions to run for a seat on the high court— campaign expenditures have a significant impact on including $86,905 from the general business sector and courtroom decisions. Id. Only 23 percent of all voters $79,845 from the finance, insurance and real estate believe campaign expenditures have little or no influ- industries. See Sample et al., New Politics 2000- ence on elected judges. Id. In addition, 82 percent 2009, supra note 1; Mark Ladov and Maria da Silva, of Republicans, and 79 percent of Democrats, say a In Wisconsin, Judges Are Elected—But Candidates Are judge should not hear cases involving a campaign sup- Now Publicly Financed, The Nation (May 6, 2011). porter who spent $10,000 toward his or her election. 20. Bill Raftery, In Surprise Move, North Carolina House Id. Finally, 88 percent of Republicans, and 86 percent Floor Amendment to Budget Tries to Kill Public of Democrats, say that “all campaign expenditures to Financing for Judicial Campaigns, Gavel to Gavel, May elect judges” should be publicly disclosed, so that vot- 4, 2011, available at http://tinyurl.com/42phx9z. ers can know who is seeking to elect each candidate. Id. 21. See 20/20 insight llc, North Carolina Registered Voter Survey, February 2011, available at http://www. 16. See generally Duke v. Leake, 524 F.3d 427. (4th Cir. justiceatstake.org/media/cms/q165__freq_limited_ 2007), cert. denied 129 S. Ct. 490 (2008) (upholding release_9E72F4684EB8B.pdf. North Caroline’s judicial public financing program, which contains provisions similar to Arizona’s); 22. Bill Raftery, Latest Effort to Impeach a State Judge For Wisconsin Right to Life PAC v. Michael Brennan, His Decision(s) Filed Against Missouri Judge up for a Brief for Common Cause in Wisconsin, et al. as Federal Judgeship, Gavel to Gavel, May 16, 2011, avail- Amicus Curie Supporting Appellees, No. 11-1769 able at http://tinyurl.com/3goeh3u. (W.D.Wis. 2012), No. 11-1769 (7th Cir. 2011) (dis- 23. Peter Hardin, ABA’s Zack Hits Plan for FL Court missed as moot); (arguing that a state’s constitutional Dysfunction, Gavel Grab, April 14, 2011, available at obligation to prevent bias and protect the appear- http://www.gavelgrab.org/?p=19814. ance of judicial impartiality represents a compelling interest that is unique and distinct from the anti- 24. In Re Coy Reece, Relator, No. 09-0520 (TX May corruption interest ordinarily implicated in campaign 27, 2011) (Willett, J., dissenting), available at http:// finance cases), available at http://www.brennancenter. www.supreme.courts.state.tx.us/historical/2011/ org/content/resource/wisconsin_right_to_life_politi- may/090520d2.htm. cal_action_committee_v._michael_brennan/. 25. National Center for State Courts Budget Survey 17. See Sample et al., New Politics 2000-2009, supra Budget Percent Change Maps and Tables, available note 1 at 32. at: http://www.ncsc.org/Information-and-Resources/ Budget-Resource-Center/About-the-BRC.aspx. 18. See Press Release, Brennan Center for Justice, “Special Interest TV Spending Sets Record in Wisconsin,” 26. Shane Goldmacher, Chief justice: ‘Crippling’ California Brennan Center for Justice, (Apr. 5, 2011) available at Court Cuts Would Be ‘A Blow Against Justice,’ L.A. http://www.brennancenter.org/content/resource/spe- Times (June 14, 2011). cial_interest_tv_spending_sets_record_in_wisconsin/. 27. See Roy Weinstein and Stevan Porter, Economic Impact on the County of Los Angeles and the State of California of Funding Cutbacks Affecting the Los Angeles Superior Court (December 2009), available at http://www.micronom- ics.com/articles/LA_Courts_Economics_Impact.pdf; The Economic Impacts on the Georgia Economy of Delays in Georgia’s State Courts Due to Recent Reductions in Funding for the Judicial System, The Washington Economics Group, Inc. (2010), available at http://www.gabar.org/public/pdf/ news/2011%20Georgia%20Bar%20Economic%20 Impacts.pdf.
30 Endnotes
National Conference of Appellate Court Clerks July 30, 2012 Charleston, South Carolina
Who’s Defending the Judiciary?
Presented By: Penny J. White University of Tennessee College of Law
Introduction
Those who work with the courts generally accept the importance role that courts play in modern life. We understand that economic, social, and political stability depends upon a highly functioning court system and are likewise aware that attacks on the courts threaten to upset the crucial stability that courts provide. But even those with an understanding of the courts may benefit from a clearer picture of the challenges that the courts face. This paper seeks to discuss the role of the courts, the role of the public, the current threats to state court legitimacy, and some possible solutions, before turning to the direct question of whose responsibility it is to defend the courts.
I. The Importance of Public Confidence in the Courts
In 1906, in a speech before the American Bar Association, Professor Roscoe Pound proclaimed: “Putting courts into politics and compelling judges to become politicians, in many jurisdictions has almost destroyed the traditional respect for the Bench.” Professor Pound knew profoundly that courts, like any institution, depend upon public respect, support, and confidence to maintain their institutional legitimacy. This proposition as applied to decisions of the United States Supreme Court, was explained by the Court in a 1992 decision: “The Court’s power lies, rather, in its legitimacy, a product of substance and perception that shows itself in the people’s acceptance of the Judiciary as fit to determine what the nation’s law means and to declare what it demands.”1
The power of the courts, which flows from the public’s respect and confidence in the courts, is not an end in and of itself. Rather, judicial power is essential to preserving a strong democracy. A strong democracy depends upon a judiciary that is free from outside control and influence. In addition to serving as a check on the other branches of government, fair and independent courts promote economic and political stability and encourage productivity by allowing a free market to thrive while enabling individuals and organizations to have confidence that, if disputes arise, they will be fairly adjudicated.
The general recognition that judicial power flows from institutional legitimacy is equally, perhaps more, applicable to courts of limited jurisdiction. The public’s impression of justice,
1 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 865-66 (1992). 1
and its resulting respect and support or disrespect and indifference, is affected by knowledge of the court system. 2 That knowledge is gained through multiple sources including education, personal experience, and media representations. Recent studies confirm findings that the general public continues to have an absence of knowledge about and a lack of understanding of the justice system.3 Efforts to expand and improve civics education in our schools may impact future generations, but those who are reaching adulthood presently are more likely to be influenced by their personal experiences and by media representations. Studies show that those who have positive personal experiences are more likely to have confidence in the courts system and, obviously, far more people have personal experiences with courts of limited jurisdiction than with the nation’s highest court.
II. Public Understanding of the Role of the Courts
The ability of the courts to serve as a viable dispute resolution system depends upon the confidence in the system’s lawfulness, the perception of the system’s fairness, and the assessment of the system’s propriety.4 When public trust and confidence in the judiciary is high, the public readily accepts the necessity for an independent judiciary. But when public trust and confidence is low, the court system loses its legitimacy and potentially, its viability as a means for resolving disputes.
The public often confuses the role of the courts because of some similarities between judges and other governmental officials -- both work for the people, both are a part of government, and both are elected or selected. Congressional actions, and the creativity of modern litigators, have “propelled the courts into an unaccustomed regulatory and quasi- legislative role. Both the pettiest details and the broadest concepts of government have come within the judicial ambit.”5 Judges cannot sit passively by in the face of growing dockets overflowing with complex litigation. A judge does not have the luxury of determining which issues to address. Rather, the judge is compelled to rule upon the issues brought before the court, regardless of how controversial or unpopular.
All too often, elected officials capitalize on this confusion for their own political benefit. Those who misunderstand the role of the courts often expect courts to act and react as other political bodies, influenced by the will of the majority. But no expectation could be less appropriate. The Constitution and the laws of this country, and of the individual states, guarantee individual rights which courts must protect notwithstanding the majority’s point of view. Judges must enforce those rights without regard to the will of the majority.
2 ABA COMM. ON EVALUATION OF JUDICIAL PERFORMANCE, PERCEPTIONS OF THE U.S. JUSTICE SYSTEM 11 (1999), available at www.abanet.org/media/perception/perceptions.pdf. 3 Compare Mark Hansen, Flunking Civics, ABA JOURNAL 32 (May 2011) with NAT’L CTR. FOR STATE COURTS, READING AND INTERPRETING PUBLIC OPINION ON THE STATE COURTS (2002) (detailing 1977 study), available at www.ncsonline.org/projects_Initiatives/BPI/PublicTrust.html.
4 Gregory C. Pingree, Where Lies the Emperor’s Robe? An Inquiry into the Problem of Judicial legitimacy, 86 OR. L. REV. 1095, 1098 (2007). 5 Judge Irving R. Kaufman, “Chilling Judicial Independence,” 88 YALE L. J. 10 (1979). 2
Some argue that judges should be beholden to the majority’s point of view. But blind adherence to the will of the majority has often proved disastrous. In some of our country’s darkest hours, public opinion was tragically wrong. In Salem, hundreds of people, mostly women, were burned at the stake because they were believed to be witches. In the South, lynchings and church bombings were endorsed in the name of racial superiority. In the words of John Dryden, we must remember: “[n]or is the people’s judgment always true; the most may err as grossly as the few.”6
Thus judges in particular and courts in general must be independent of the majority will and accountable to the rule of law. Independence is often described as the “crown jewel” of the American justice system. But it is this essential character of independence that also often subjects judges to criticism and courts to attack.
To understand the importance of an independent judiciary, one must begin with an appreciation for the unique role that courts play in America. As Justice Felix Frankfurter explained, “[c]ourts are not representative bodies. They are not designed to be a good reflex of a democratic society. . . . Their essential quality is detachment, founded on independence.”7 It is not the job of the courts to issue orders responsive to the majority’s demands. Rather, it is the task of the courts to fulfill country’s promise of “Equal Justice Under Law.” In order for our courts to guarantee equal justice, our courts must be impartial; in order for our courts to be impartial, they must be free from influence – they must be independent
The unique role of the courts, as independent, neutral decision makers, shielded from political influence and control, is essential to preserving the principles of American democracy. An important step in that direction is to identify the historic and modern-day threats to fair and impartial courts and remain vigilant to their devastating effects.
III. Historic Threats to Fair and Impartial Courts
Remarkably, Professor Pound’s near-century old concern – that political influence was destroying respect for the judiciary -- is even more poignant today than it was when made. But as is obvious from his 1906 statement, efforts to politicize America’s courts are not of recent origin. Even before colonization, those who would become our nation’s founders feared a controlled judiciary. In England, judges served “at the pleasure of the King,”8 When their decisions displeased the King, they were removed. Removal of judges for inappropriate decisions was a common practice throughout the reign of James I and the three kings that followed him. 9 Even Lord Coke, the respected jurist, was dismissed by James I for not ruling in accord with the King’s wishes.10
6 John Dryden, “Absalom and Achitophel,” reprinted in THE POEMS OF JOHN DRYDEN 59 (John Sargeaunt, ed.)(1913). 7Dennis v. United States, 341 U.S. 494, 525 (1951) (Frankfurter, J., concurring). 8 Bernard Schwartz, THE ROOTS OF FREEDOM: A CONSTITUTIONAL HISTORY OF ENGLAND (1967). 9 Bernard Schwartz, THE ROOTS OF FREEDOM: A CONSTITUTIONAL HISTORY OF ENGLAND (1967). 10 Bernard Schwartz, THE ROOTS OF FREEDOM: A CONSTITUTIONAL HISTORY OF ENGLAND (1967). 3
In 1688, the Glorious Revolution led to the deposing of King James II, and with it the coronation of King William and Queen Mary. One of the changes made by the Crown was the appointment of judges to serve “during good behavior” and the endorsement of a fixed salary so that neither Parliament nor the Crown could directly or indirectly influence a judge’s decisions.11
When the colonists undertook to form this nation, the creation of a separate and independent judiciary was foremost in their minds. Following that Preamble to the American Declaration of Independence, the authors carefully charted a long list of tyrannous acts of George III. Among those twenty-seven paragraphs, prominently placed as paragraph seven, was this declaration:
[The King] has obstructed the administration of justice . . . . He has made judges dependent on his will alone for the tenure of their offices, and the amount and payment of their salaries.12
The framers of the new government integrated the principle of a separate and independent judiciary soundly in the new Constitution creating three independent branches and tenuring members of the federal judiciary for life.
Criticism of the judiciary and its independence began almost immediately and has continued to the present day. After the decision in Marbury v. Madison 13 establishing the power of judicial review, the United States Congress passed the Judicial Act of 1802. That Act abolished the previous years’ Act, which had created circuit judgeships, and returned Supreme Court justices to riding the circuits. It also abolished the 1802 term of the Supreme Court. A century later, in 1912, the Progressive Party’s plank espoused by Theodore Roosevelt advocated the recall of judicial opinions and judges by popular vote.14 President Franklin Roosevelt, angered by judicial decisions affecting New Deal legislation attempted to pack the United States Supreme Court.15 Members of Congress in every decade have called for impeachment of judges or limitations on jurisdiction and Congressional boycotts of federal judicial appointments, once thought to be a deplorable, have become commonplace.
IV. Modern Threats to Fair and Independent Courts
A. Federal Courts as Targets
In the 1990’s, judges, lawyers, and academics began to express concern about what they viewed as unprecedented attacks on the independence of the judiciary. Most acknowledged that attacks on judicial independence were neither new nor novel, having existed since the founding
11 Bernard Schwartz, THE ROOTS OF FREEDOM: A CONSTITUTIONAL HISTORY OF ENGLAND (1967). 12 Bernard Schwartz, THE ROOTS OF FREEDOM: A CONSTITUTIONAL HISTORY OF ENGLAND (1967). 135 U.S. (1Cranch) 137 (1803), 14 P. Freund, “Storms Over the Supreme Court” in THE SUPREME COURT AND ITS JUSTICES 185 (Jesse H. Choper ed. 1987). 15 J. Lieberman, MILESTONES! 200 YEARS OF AMERICAN LAW: MILESTONES IN OUR LEGAL HISTORY 209- 13 (1976). 4
of the country. Some suggested that disgruntlement with the judiciary, like dissatisfaction with any institution of government, simply ebbed and flowed over time. But many lamented that the frequency and fervor of the attacks were increasing, causing one Senator to comment that “I think we are close to being able to say this is an unprecedented series of threats toward the independence of our judiciary.”16 The American Bar Association agreed, asserting that “[a] new cycle of intense political scrutiny and criticism of the judiciary is now upon us.”17
This heightened scrutiny of the judiciary was multi-faceted.18 Often the scrutiny resonated as a general dissatisfaction with the judiciary as an institution of government. Sometimes, it was focused upon an issue that seized media, and consequently, public attention, such as capital punishment, abortion, or tort reform.19 But not infrequently the scrutiny was brought to bear upon a single judge or court as a result of a judicial decision. When the scrutiny resulted in unfair criticisms leveled for the purpose of interfering with the judicial process, it was feared that judicial independence would be undermined.
A very public attack occurred in the spring of 1996 from the two men who would vie for the presidency. President Clinton and Senator Dole sparred publicly over whether a federal judge should be impeached for suppressing evidence in a single case.20 Many complained that such an obvious attempt to interfere with judicial independence by intimidation should not come from “responsible” government officials.21 But in reality, the rhetoric in the Baer impeachment
16Judicial Activism: Defining the Problem and Its Impact: Hearings on S.J. Res. 26, a Bill Proposing a Constitutional Amendment to Establish Limited Judicial Terms of Office Before the Subcomm. on Constitution, Federalism, and Property Rights of the Comm. on the Judiciary, 105th Cong. 10 (1997). 17ABA Report of the Comm. on Separation of Powers and Judicial Independence, July 4, 1997, at ii. The entire report can be viewed at http://www.abanet.org/govaffairs/judiciary/execsum.html. 18Many scholars view judicial independence issues to be of two kinds: “institutional independence,” concerning independence issues that involve the judiciary as a whole and “decisional independence” concerning independence issues that involve individual judicial decision-making. 19Drawing on a metaphor used by Justice Otto Kaus of the California Supreme Court, Professor Gerald F. Uelmen, in 1997, described the major issues which threatened judicial independence as “crocodiles in the bathtub.” They were the death penalty (“the fattest crocodile”), abortion “the meanest crocodile”), and popular initiatives (“the angriest crocodile”). Gerald F. Uelmen, “Crocodiles in the Bathtub: Maintaining the Independence of State Supreme Courts in the Era of Judicial Politicalization,” 72 NOTRE DAME L. REV. 1133, 1135, 1144, & 1147 (1997). Today’s “bathtub” has two new crocodiles: tort reform and same-sex marriage. 20Judge Harold Baer, Jr., federal district judge in the Southern District of New York, granted a defense motion to suppress evidence in the case of United States v. Bayless, 913 F.Supp. 232, 234 (S.D.N.Y. 1996), vacated, 921 F. Supp. 211, 212 (S.D.N.Y. 1996). The motion alleged that the police did not have reasonable suspicion to stop the car that defendant Bayless was driving and that the subsequent search of the car, which yielded the physical evidence of more than 70 pounds of cocaine and heroin, was therefore the fruit of an illegal stop. The judge granted the motion. The ruling prompted more than 200 members of Congress to sign a letter written to President Clinton calling for the President to demand Judge Baer’s resignation. Presidential nominee Dole called for Baer’s impeachment. See Harold Baer, Jr., Interview: A Unique Perspective on Judicial Independence, 25 HOFSTRA L. REV. 799 (1997); Jon O. Newman, “The Judge Baer Controversy,” 80 JUDICATURE 156 (1997). 21Chief Judge John O. Newman and three prior chief judges for the Court of Appeals for the Second Circuit issued a public statement decrying the attacks on Judge Baer. David S. Broder, Space for a Judge, WASH. POST, Apr. 14, 1996, at C7; Don Van Natta, Jr., Judges Defend A Colleague from Attacks, N.Y. TIMES, Mar. 29, 1996, at B1, B4 (“We have no quarrel with criticism of any decision rendered by any judge. Informed commend and disagreement from lawyers, academics, and public officials have been hallmarks of the American legal tradition. But there is an important line between legitimate criticism of a decision, and illegitimate attack upon a judge. . . . [These 5
controversy and in most criticisms of judges or the judiciary was levied by federal government officials against federal judges for purely political reasons.
Unfortunately, it was not unusual for the members of the Executive and Legislative branches to loudly and unfairly criticize the federal judiciary. While Clinton and Dole captured media attention by bullying a federal judge, it was members of Congress who identified the intimidation of federal judges and the reduction of judicial power22 as key initiatives. A booklet urged members of the 104th and 105th Congress to initiate impeachment proceedings against so- called “activist judges.” The booklet acknowledged that impeachment was unlikely, but argued:
Even if it seems that an impeachment conviction against a certain official is unlikely, impeachment should nevertheless be pursued. Why? Because just the process of impeachment serves as a deterrent. A judge, even if he knows that he is facing nothing more than a congressional hearing on his conduct, will usually become more restrained in order to avoid adding “fuel to the fire” and thus giving more evidence to the critics calling for his removal.23
B. State Courts as Targets: The Impact of Republican Party of Minnesota v. White
While federal politicians were aggressive in their attacks on federal judges, politicians and political organizations on the state level were beginning to orchestrate their own attacks24 against members of state courts.25 It was not unheard of for a state court judge to be targeted,26
attacks] do a grave disservice to the principle of an independent judiciary, and, more significantly mislead the public as to the role of judges in a constitutional democracy.”). Broder, at C7. Similarly, United States Attorney for the Southern District of New York Mary Jo White criticized the attacks, noting that “[t]he independence of the judiciary is ... one of the fundamental cornerstones of our government and democracy. It is indeed that independence that both the Government and defendants rely upon in every case for a fair and just decision on the merits. Louis H. Pollak, “Criticizing Judges,” 79 JUDICATURE 299, 301 (1996). 22Stephan O. Kline, “Revisiting FDR’s Court-Packing Plan: Are the Current Attacks on Judicial th th Independence So Bad?” 30 MCGEORGE L. REV. 863, 867 n. 11 (“[d]uring the 104 and 105 Congresses, at least seven constitutional amendments were introduced which would have eliminated life tenure for federal judges, replacing it with a fixed term of between six and twelve year, and sometimes permitting reappointment.”) 23 David Barton, IMPEACHMENT! RESTRAINING AN OVERACTIVE JUDICIARY 53 (1996). 24See generally Stephen B. Bright, “Can Judicial Independence be Attained in the South? Overcoming History, Elections, and Misperceptions about the Role of the Judiciary,” 14 GEORGIA STATE UNIV. L. REV. 817, 844- 55 (1998)(describing attacks on state court judges); see also Stephen B. Bright and Patrick J. Keenan, “Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, 75 BOSTON U. L. REV. 759 (1995). 25Similar to post-White attacks, the targets of these attacks are often members of the state appellate courts. It is likely that many local judges were also targeted for attack or defeat, but the information about those incidents is much less readily available. 26See Stephen B. Bright and Patrick J. Keenan, “Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, 75 BOSTON U. L. REV. 759, 847-51 (1995)(describing attacks on Texas, Tennessee, Nevada, Nebraska, and Missouri judges). 6
and, occasionally defeated. 27 These occurrences were unpleasant but they remained fairly isolated through 2002. Overwhelmingly, state court judges retained their positions. 28 Similarly, despite its bravado, Congress did not impeach a single federal judge, though it continued to exert influence over judicial matters. Scientists and researchers who studied the effect of threats on the independence of the judiciary focused their attention largely on federal courts. 29
But if the attempt to control the federal courts by intimidation and interference largely failed, the recent efforts to undermine judicial independence in state courts, using the vehicle of the First Amendment, arguably have been much more successful. These organized efforts, spearheaded by special interest groups and catapulted by the Supreme Court’s decisions in Republican Party of Minnesota v. White,30 target state court judges who are largely subject to popular vote. The issue before the United States Supreme Court in Republican Party of Minnesota v. White was quite narrow. Minnesota was one of a very few states that had retained the announce clause, a part of the 1972 Model Code of Judicial Conduct, which in most states had been replaced by other provisions believed to be more in line with First Amendment guarantees. The announce clause provided that “a judge or candidate for judicial office, including an incumbent judge . . . shall not announce his or her views on disputed legal or political issues.” The issue was whether this provision violated a judicial candidate’s First Amendment rights.
The majority of the Supreme Court, in an opinion authored by Justice Scalia, invalidated the provision reasoning that the provision was not narrowly tailored to meet a compelling state interest. The dissenter’s protestations that judicial elections are unique and that “judges perform a function fundamentally different from that of the people’s elected representatives” was met consistently with what Justice Ginsburg called a “unilocular” response: this is an election, elections involve political speech, and political speech may not be restrained.31
Despite the narrowness of the issue and the holding, the White decision led lower courts, judicial ethics bodies, state supreme courts, and the American Bar Association to eliminate other restrictions on judicial speech and conduct, further blurring the distinction between judicial elections and other elections and eliminated strong arguments that judicial elections are and should be different. Additionally, White has fostered an ideal environment in which money, politics, and special interests thrive. As a result of the decision, special interest groups are able to identify candidates who share the groups’ political ideologies, publicize the ideology, and funnel significant resources into the chosen candidates’ campaigns. This environment has produced new devices for undermining judicial independence.
27See Gerald F. Uelmen, “Crocodiles in the Bathtub: Maintaining the Independence of State Supreme Courts in the Era of Judicial Politicalization,” 72 NOTRE DAME L. REV. 1133 (997)( describing defeats of justices in Tennessee and Nebraska in 1996). 28 Lawrence Baum, “Judicial Elections and Judicial Independence: The Voter’s Perspective,” 64 OHIO STATE L.J. 13 (2003). 29 See Stephen B. Burbank, “The Architecture of Judicial Independence,” 72 SO. CAL. L. REV. 315, 331 (1999)(noting that most scholars and most national studies tend to ignore state courts and state judges). 30 536 U.S. 765 (2002). 31Republican Party of Minnesota v. White, 536 U.S. 765 (2002). 7
The dispute that brought the White case to the Supreme Court was emblematic of the new landscape in judicial elections. Special interest groups wanted to ask pointed questions about judicial candidate’s personal opinions and some of the candidates wanted to answer. The special interest questionnaire became the new weapon in state judicial races. When candidates refused to answer, based on advice from state judicial ethics bodies, the ethics bodies were sued, but when judicial candidates responded with answers consistent with the viewpoints of the groups posing the questions, the candidates were rewarded either with direct contributions or with inclusion in the organization’s issue advertisements. Thus, the questionnaires made it easy to target which candidates to support and in turn, contributed to the skyrocketing expenditures in judicial races that followed White.
Before the decision in White, most state court judicial elections were decorous events in which candidates talked about their educational backgrounds, their professional experiences, and their military and community service. This was the norm in judicial elections not only because judicial ethics rules restricted political activity, but also because many judges embraced a unique judicial image that envisioned judges not as politician dressed in black robes, but as special kinds of public servants, insulated from everyday political bargaining and deal making.
C. Raising the Stakes: The Aftermath of Citizens United
From 1990 until 1999, judges seeking seats on America’s 50 state supreme courts spent a combined total of 83 million dollars. From 2000 until 2009, those same judges spent 210 million dollars. This 65 percent increase was not limited to a few jurisdictions. Twenty of the 22 states that elect their supreme courts witnessed their costliest judicial race ever in the last decade.32 The spending trend continued in the 2010 and 2012 state judicial races as did the escalation of attack ads and the infiltration of political issues. While most money is spent in states where judges are elected on partisan ballots, recently the spending has shifted to states in which judges are elected in nonpartisan and retention elections.33
The identified sources34 of the increased money supply are business interests and lawyers, with business leaders outspending lawyers, and with both groups spending significantly more than political parties and candidates.35 Thus, in almost every case special interest spending exceeds spending by the judicial candidate’s official campaign.
In addition to an overall increase in spending, there are some “super spenders” who invest large amounts of money in order to influence judicial races in various jurisdictions. In 29 of the contested elections held during the last decade, at least one candidate benefitted from a contribution of a million dollars or more from a group which stood to benefit from the
32Justice at Stake, “The New Politics of Judicial Elections 2000-2009,” 5-7. 33Justice at Stake, “The New Politics of Judicial Elections 2000-2009,” 5-7. 34The source of about a quarter of the contributions cannot be identified. 35Justice at Stake, “The New Politics of Judicial Elections 2000-2009,” Figure 3. 8
candidate’s election.36 Notably, the top five financiers of judicial elections spent almost half a million dollars on the candidate of their choice.37
It is noteworthy that the rise in judicial spending largely preceded the Supreme Court’s decision in 2010 Citizens United v. Federal Election Commission,38 a case in which the Court overturned longstanding limitations on election spending from corporate and union treasuries. Although the case involved federal campaign finance laws applied to a candidate for president, both the majority and the dissent acknowledged its broader implications for state courts. The dissent noted that:
the consequences of today’s holding will not be limited to the legislative or executive context. The majority of the States select their judges through popular elections. At a time when concerns about the conduct of judicial elections have reached a fever pitch, the Court today unleashes the floodgates of corporate and union general treasury spending in these races. 39
While the decision in White provided a means by which special interest groups could identify judicial candidates who shared the groups’ political ideologies, the decision in Citizens United allows corporations and unions to invest in what is more frequently referred to as the “buying of America’s state courts.” Whether the Citizens United decision will lead to even greater spending in judicial elections remains to be seen, but a substantial majority of the public already expresses concern about the toxic effect that this entanglement of money and special interest has on state courts. Seventy-six percent of the public believes that campaign contributions influence judicial decision-making. When asked to quantify the influence, 89 percent of those surveyed said that money buys favor all of the time, most of the time, or some of the time. Perhaps more disconcerting is that 80 percent of the lawyers and almost half of the judges surveyed agree that campaign contributions influence judicial decision-making.40 Additionally, 80 percent of the public expresses concern with the influence that special interest groups exert over state courts. 41
V. Does the Judiciary Need Defending? – Crisis in the Courts or “Simple Cyclic Changes:”
Some well-respected historians and academics characterize the current attitude toward the courts as “simple cyclic changes” rather than as a source for undue concern. They explain that anti-court sentiment has “come and gone at generational intervals since the nation was
36Justice at Stake, “The New Politics of Judicial Elections 2000-2009,” 9. 37 Justice at Stake, “The New Politics of Judicial Elections 2000-2009,” 13-15, Figure 3. 38 130 S.Ct. 876, 910 (2010). 39 Id. at 968 (Stevens, J., dissenting). 40Justice at Stake, “The New Politics of Judicial Elections 2000-2009,” Figure 33 (from 2001 Justice at Stake national survey). 41Justice at Stake, “The New Politics of Judicial Elections 2000-2009,” Figure 33. 9
founded.”42 This swaying of the pendulum of public support is often thought to evolve from the reaction to a judicial decision that angers or confuses the public creating an enthusiasm for changing the composition of the court in order to change the judicial decision. Certainly, there are historic and current examples of this phenomenon.
Recently, voters in Iowa declined to retain three members of the Iowa Supreme Court in a retention election. The upset was fueled by a 2009 court decision that allowed same-sex couples to marry and was the first time in forth years that an Iowa justice had failed to be retained. Following the election, impeachment resolutions aimed at removing the remaining four justices were formally introduced. In early May, House leaders signaled that the impeachment effort had apparently failed, but some House members have noted that the “will of the people” can resurrect the effort to impeach the remaining justices.
Even assuming the accuracy of the perspective that the current anti-court climate is merely cyclical, the “cycle” occurs at a time when the landscape of judicial elections is different than at any other time in the nation’s history. The landscape of judicial elections has changed not only as a result of weakened restraints on political activity by candidates for the bench but also as a result of eliminated restrictions on political contributions by corporations, unions, and special interests.
Agreement over the source of current anti-court sentiment is unnecessary to conclude that state court systems face real danger if the influx of money and influence is allowed to continue. Courts cannot fulfill their role in our democracy when an overwhelming majority of the public believes that contributors receive favorable treatment in the courts.
A. How Can We Defend the Judiciary? – Some Attempted Solutions
States and independent groups have initiated a number of other reforms aimed at safeguarding judicial independence and restoring public trust and confidence in the courts. These reforms include requiring campaign expenditure disclosures, changing judicial selection methods, strengthening judicial recusal requirements, utilizing campaign conduct commissions, and implementing public finance systems. As will be seen by the summaries below, most, if not all of these attempted solutions, have been met with challenge, many based on First Amendment grounds.
1. Exposing Campaign Spending
The Supreme Court decision in Citizens United striking down the ban on corporate and union expenditures in federal elections does not prohibit rigid disclosure laws. Immediately following the decision, congressional committees began holding hearings on a proposed DISCLOSE Act (“Democracy is Strengthened by Casting Light on Spending in Elections”) whose purpose is to bring transparency to the financing of federal elections. The Act has failed
42 Charles Gardner Geyh, “Preserving Public Confidence in the Courts in an Age of Individual Rights and Public Skepticism,” BENCH PRESS: THE COLLISION OF COURTS, POLITICS, AND THE MEDIA 21 (Keith J. Bybee, ed.)(2007). 10
to gain momentum with the present Congress but it has provided a framework for state legislatures and state judiciaries who wish to adopt measures that will require disclosure. It has been recommended that state courts implement rules requiring judges, parties, and lawyers to disclose facts that might affect a judge’s impartiality, including the existence of any contributions or independent expenditures made on behalf of the judge.
2. Changing Judicial Selection Methods
Observers have noted that the “biggest single threat to fair and neutral justice is the trend toward partisan judicial elections at the state and local level.”43 The movement toward retention and nonpartisan races which gained momentum in the 1960s and 1970s stalled in the 1980s. Efforts toward selection reform have been reinvigorated, for example, in Missouri, West Virginia, and Minnesota, but some highly publicized reform efforts have been squarely rejected by the voters. Despite the efforts of Justice Sandra Day O’Connor and the uncovering of judicial fundraising scandals in Nevada, voters there rejected a constitutional amendment that would have provided for merit selection of Nevada judges.
While some state legislators seem to favor partisan judicial elections, business groups, the defense bar, and the United States Chamber of Commerce have begun to express concern over the effects of elected judiciaries. DRI, the Defense Research Institute, in a 2011 Report, decried the perceived influence of money flowing into judicial elections.44 Additionally, notwithstanding the success that conduit groups funded by the U.S. Chamber of Commerce have enjoyed in judicial campaigns, the Chamber of Commerce Institute for Legal Reform, in its October 2009 report, praised the Arizona appointment system and noted that importance of the quality of justice to the business community.45 Nonetheless, as a result of legislative action, Arizona voters will decide in 2012 whether the change the merit selection process which is used to select judges for the Arizona Supreme Court, Court of Appeals, and the trial courts in the two largest counties.
3. Strengthening Judicial Recusal Methods
In both White and Citizens United, judicial recusal was previewed as a means of combatting the effects of the decisions. In his concurring opinion in White, Justice Kennedy noted that states “may adopt recusal standards more rigorous than due process requires, and censure judges who violate these standards.”46 Similarly, in Citizens United, the majority slighted the respondent’s argument, based on the Court’s recent decision in Caperton v. A.T. Massey Coal Co.47 but inferred that a connection between a campaign contributor and a candidate for judicial office might require recusal, noting that “Caperton’s holding was limited
43 Andrew Cohen, “The Case Against Judicial Elections: Keep Politics Out of the Law,” available at www.politicsdaily.com/2010/06/06/ 44 “Without Fear or Favor – A New Decade of Challenges to Judicial Independence and Judicial Accountability,” available at www.dri.org/pages/without-fear-or-favor-2011.aspx. 45 Justice at Stake, “The New Politics of Judicial Elections 2000-2009,” 74-75. 46 536 U.S. 765, 694 (Kennedy, J., concurring). 47 129 S.Ct. 2252 (2009) 11
to the rule that the judge must be recused, not that the litigant’s political speech could be banned.”48
But the effect of the Caperton majority’s endorsement of the right to a fair trial in a fair tribunal was limited by the majority’s continued emphasis of the outlier facts at issue in Caperton. In minimalist fashion, the majority tied the right unnecessarily to the egregious facts in the case before it and failed to kindle a debate on how to reconcile the mandates of Due Process with the escalating effects of money and influence on judicial elections.
However, Justice Kennedy, who authored the 5-4 majority opinion in Caperton, reiterated his position on the recusal remedy, which was first embraced in White and invited states again to “adopt recusal standards more rigorous than due process requires.” 49 Some state judiciaries have accepted the invitation and undertaken broad sweeping reform. Notably, the Michigan Supreme Court in November 2009 significantly strengthened its recusal rules and Tennessee completely revamped its recusal rules and procedure in 2012. Other states attempting recusal reform have been met with external resistance in the form of lawsuits. Advocacy groups have initiated actions arguing that the modified rules violate a candidate’s First Amendment rights.
4. Utilizing Judicial Campaign Conduct Commissions
States and independent groups have initiated a number of other reforms aimed at safeguarding judicial independence and restoring public trust and confidence in the courts. For example, approximately 35 jurisdictions have judicial campaign conduct oversight committees which undertake to monitor judicial campaigns. In many states, the watchdog groups have been established independent of the courts and rely on voluntary cooperation by those campaigning for judicial office.50 Many consider these monitoring groups as a counterweight to the campaign speech and conduct allowed by White and its progeny.
But the recent experience of a Wisconsin commission empowered to hear judicial ethics complaints may influence the willingness of other groups to continue their watchdog efforts. Following the 2008 Wisconsin Supreme Court race, an incumbent justice was defeated in a bitter and expensive campaign. Justice Louis Butler, the only minority member of the court, was attacked in television advertisements which claimed that he freed a rapist who reoffended. Each sentence of the advertisement, taken without regard to the remainder of the message, was true, although the overall advertisement clearly misrepresented information to Justice Butler’s detriment. The Wisconsin Judicial Commission abandoned the ethics case after the winning candidate’s colleagues on the Wisconsin Supreme Court deadlocked 3-3 on whether the justice had violated an ethics rule by lying in the campaign advertisement. The winning candidate had defended on First Amendment grounds, arguing that since every sentence in the advertisement standing alone was true, no discipline could be imposed.
48 130 S.Ct. 876, 910 (2010). 49 129 S.Ct. 2252, 2268 (2009). 50 William Fortune and Penny White, “Judicial Campaign Oversight Committees’ Complaint Handling in the 2006 Elections: Survey and Recommendations,” 91 JUDICATURE 232 (Mar. – April 2008). 12
5. Implementing Public Finance
In addition to instituting recusal reform and initiating judicial campaign conduct commissions, many have viewed public finance as an innovative way to thwart efforts to politicize the judiciary and undermine its independence. Since its inception, the North Carolina judicial public finance system has been heralded as a solution to the financial arms race prevalent in many states in which judges are elected. As reported by the Brennan Center for Justice: “By any measure, the North Carolina program has been a huge success. . . . Public financing reduces the burden on judicial candidates to raise money from special interests before the court, and thus lowers the potential for ethical conflict.” Many are impressed that in 2010 all of the appellate court candidates signed up to participate in the program even after the decision in Citizens United v. FEC opened the door to unlimited corporate and union campaign expenditures. Moreover, North Carolina citizens seem to embrace the change, with 74 percent of those surveyed in 2005 approving its continuation.
In many ways, the North Carolina system was a model for other states wishing to address mounting expenditures in campaigns for judicial office. States were undoubtedly encouraged when the Court of Appeals for the Fourth Circuit denied relief in a case challenging the constitutionality of the North Carolina system and the Supreme Court subsequently denied certiorari. 51 The petition for certiorari challenged the rescue fund provisions of the public finance system on the grounds that the provisions violated the First Amendment by burdening core political speech. In stressing the public importance of the case, plaintiffs stated that North Carolina’s rescue provisions “are just one of many across the nation,” and cited to other provisions, most notably those in effect in Arizona. While many advocates for public finance celebrated the denial of certiorari, their celebration may have been premature.
Before the denial of certiorari in the North Carolina case, opponents had targeted Arizona’s public finance system for constitutional challenge, primarily arguing that the triggering mechanism and resulting matching funds provision infringed upon nonparticipating candidates’ First Amendment and Equal Protection rights. Following litigation in the District Court and the Ninth Circuit, the United States Supreme Court granted certiorari in Arizona Free Enterprises Club, et al. v. Bennett, et al. and McComish, et al., v Bennett, et al. , 131 S.Ct. 2806 (2011), and last June declared the matching funds provision unconstitutional. Based on the Arizona decision, the United States District Court for the Western District of North Carolina has recently invalidated the rescue fund provisions of the North Carolina law. North Carolina Right to Life PAC v. Leake, No. 5:11-CV-472-FL (May 21, 2012).
B. Who Should Defend the Judiciary?
It is the task of all who value the role of the courts in our society to defend the judiciary. The task cannot be left to judges or even to lawyers. Rather, the duty to preserve the vitality of the American justice system falls upon us all.
51 North Carolina Right to Life Comm. Fund v. Leake, et al., 524 F.3d 427 (4th Cir. 2008), cert. denied in Duke v. Leake, 129 S.Ct. 490 (2008). 13
Individuals can help defend the judiciary in a multitude of ways including becoming and remaining informed about the courts in their jurisdictions; talking to others formally in clubs, churches, and social groups and informally about the courts; dispelling commonly-held myths about the courts that are expressed by others; correcting inaccuracies about the courts that are verbalized or publicized; questioning unfair media reports by calling reporters and news agencies and authoring letters to the editor; revealing inaccurate campaign propaganda when talking with friends and colleagues; encouraging qualified candidates to seek appointment or election to the bench; and refusing to express negative, unfounded opinions and beliefs about judges or judicial decisions.
A number of efforts underway could ultimately transform the nature of our courts. Whether these efforts are a result of “simple cyclic changes” or are an all-out assault on the state courts, those who embrace the important role that courts play in society must acknowledge that our courts face a mounting barrage of challenges and must double their commitment to fair and impartial courts.
14
Things to Think About When Planning an Imaging Project Monday, July 30, 2012 12:15 p.m. – 1:15 p.m. Signers’ Ballroom Breakout Sessions: 2:30 p.m. & 3:25 p.m. Planters Suite Speaker: Ms. Tiffany J. Shropshire, Archivist Supreme Court of Texas Tiffany was born and raised in Dallas, Texas. She attended the University of Texas at Austin, earning dual bachelor’s degrees in German and Linguistics through the Liberal Arts Honors program in 2006, as well as a master’s degree in Information Studies with an emphasis on archives, and a Certificate of Advanced Study in preservation in 2009. Tiffany was named the Archivist for the Supreme Court of Texas in early 2010. Previously she had interned with the National Park Service, the Lower Colorado River Authority, KUT Radio’s music library, and the Harry Ransom Center, while also working as a graduate teaching assistant. In addition to being a certified archivist and member of the Academy of Certified Archivists, Tiffany is also a member of the Society of American Archivists and the Society of Southwest Archivists. She currently serves on the Records Management Interagency Coordinating Council and the Texas Court Records Preservation Task Force. Besides archives and preservation, her interests include Texas history, languages, genealogy, design, film, and traveling.
Page 1 of 1 Making a Case for Transition to Paper on Demand Monday, July 30, 2012 1:15 p.m. – 2:15 p.m. Signers’ Ballroom Breakout Sessions: 2:30 p.m. & 3:25 p.m. Signers’ Ballroom Panel: Ms. Catherine O’Hagan Wolfe, Esq., Clerk of Court (Moderator) United State Court of Appeal for the Second Circuit Mr. Scott Bade, President ImageSoft, Inc. Ms. Michelle Telecky, Senior Business Analyst ImageSoft, Inc. Ms. Catherine O’Hagan Wolfe, Esq., Clerk of Court (Moderator) Catherine O’Hagan Wolfe has been the Clerk of Court at the United States Court of Appeals for the Second Circuit since 2007. Prior to that, she served for 14 years as Clerk of the Court at the New York State Supreme Court, First Department. In these capacities, Ms. Wolfe supervised the development of three case management systems and most recently an electronic filing system. Ms. Wolfe also served at the First Department as a Deputy Clerk (1989-1994) and a Principal Appellate Court Attorney specializing in commercial and criminal law (1982-1989). She began her legal career as an assistant district attorney in Bronx County, New York and is a graduate of Fordham University School of Law and College of the Holy Cross. Mr. Scott Bade, President As President, Scott is responsible for the overall management and direction of ImageSoft, which provides technology to automate, streamline and improve workplace processes, increase productivity, and reduce operating costs. For over 25 years, he has designed and deployed document management and workflow systems for some of the largest corporate and government agencies in North America. During that time, he developed, sold, and managed a large number of custom document management products and projects. He is a Certified Document Imaging Architect, a charter recipient of the prestigious AIIM Master of Information Technology award, and a 2011 recipient of the Leaders & Innovators award presented by Lawrence Tech University. Scott holds a bachelor’s degree in Computer Science from Western Michigan University. Ms. Michelle Telecky, Senior Business Analyst A skilled and experienced Enterprise Content Management (ECM) veteran, Michelle has more than a decade of experience in designing and implementing document management solutions for Courts, Government, and Healthcare. Her career in ECM dates to 1999 when she joined General Nutrition’s corporate office as an OnBase ECM Application Administrator and was heavily involved in the implementation of GNC’s ECM (OnBase) solution. Thereafter she spent several years with Hyland Software, developers of OnBase ECM, and OnBase resellers expanding her expertise and solidifying her ECM integration skills through direct involvement and oversight of multiple enterprise-wide Healthcare and niche Pharmacy ECM installations. She joined ImageSoft in 2008 and expanded her work to Government and the Courts. At ImageSoft, she helped design and implement the Court of Appeals and Supreme Court ECM solution for the State of Oregon Appellate Courts (2008-2011), and most recently led the design and implementation of an ECM solution for the Supreme Court of the U.S. Virgin Islands (2011-2012). She is currently overseeing an enterprise ECM project for the State of Ohio Environmental Protection Agency. A versatile professional, in addition to ECM design and implementation, Michelle works with ImageSoft customers on pre-sale business analysis and training. She is a Certified Document Imaging Architect (CDIA+), a Microsoft Certified Professional (MCP), and a Certified OnBase Installer.
Page 1 of 1 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 212.857.8585
DENNIS JACOBS CATHERINE O’HAGAN WOLFE CHIEF JUDGE CLERK OF COURT
National Conference of Appellate Court Clerks Monday - July 30, 2012
Paper on Demand - Tradeoff of Costs and Benefits
When implementing the technical and operational aspects of electronic case management court administrators typically take into account issues posed by their three main constituencies: the judges and staff who must rely upon the documents filed to decide cases; the staff who must review the documents for compliance with court rules and procedures; and lawyers, parties and the public who must use the electronic system to file and access documents. This outline lists some of the issues court administrators address. Hopefully it will serve as a springboard for further discussion during the “Paper on Demand” plenary and breakout sessions.
I. Appellate Court Culture * relies on other courts’ paper, quality of the trial court’s docs * generates few documents itself * discrete process * occasionally creative because procedural postures vary * collegial multi-judge court * acts through the clerk not individual judges as in trial court * no individual judge procedural rules * jurisdiction returns to trial court, papers too. * cost matters less the closer the item is to the judicial decision-making process
II. ECM as Appellate Tool * improves document accessibility * easier transmission of documents within the court * makes the court more accessible to parties, counsel, bar, public - constitutional - educational
1 III. Clerk’s Office as the Crossroads
A. Filer Considerations * qualifying as a filer (admission, training, registering) * training ( sessions, elms, web instructions) * work flow (events, received/filing, etc) * standardized filing among courts within a state/system
B. Clerk’s Staff Considerations * training * quality control * system maintenance * staff skill set * authenticity, accuracy, regularize the process * archiving
C. Attorney Staff Considerations * hard on the eyes * work flow (from C’sO, internal, to C’sO/Chambers) * security
D. Chambers Considerations * work flow (from C’sO, from AS, intra-/inter-chambers, to C’sO) * security (memos, drafts, votes)
VII. Equipment Considerations * dual monitors * system upgrades * system failures, backup * software issues - pdf text searchable vs. pdf -A * remote access
VIII. Fiscal Considerations * cost of system development and implementation * savings in paper? * shifting responsibilities for creating paper - labor, cost fine tune - # copies, more upon request
IX. Public Considerations * access, education
2 White Paper
The “Paper-On-Demand” Court ECM in Courts
Introduction
Electronic Content Management (ECM) systems provide significant, paradigm- shifting value to courts of all types. In fact, the savings to a court are greater than any other single technology initiative. This White Paper seeks to describe those benefits so that court leaders can evaluate whether the technology is a good fit for their organization. This White Paper proposes that the most significant ECM component to a court is Workflow. Because of the significance of Workflow Technology to courts, this paper could just as easily be called “Workflow Technology in Courts”. The “Paper-On-Demand” Court ECM in Courts 2
Table of Contents page 1. Introduction 1
2. Paper-On-Demand 3
3. ECM Technology 3
4. Courts 3
5. Paradigm Shift: The Electronic Case File 4
6. Workflow Technology – The Key to Process Efficiency 5
7. Cost Savings 6
8. Electronic Signature 6
9. E-Filing 6
10. Legality of Paper-on-Demand 7
11. Conclusion 7
12. About the Author 8
© Copyright 2001-2010 ImageSoft, Inc. All Rights Reserved The “Paper-On-Demand” Court ECM in Courts 3
2. Paper-On-Demand The concept of “Paper-On-Demand” is a way of thinking. It is a discipline that when made pervasive throughout the court enterprise, dramatic cost savings follow. “Paper-on-demand” means that all content is stored in a digital format at all times and is only made into paper format when needed. If a constituent or party to a case requires paper, then a copy can be printed for that individual need, but the paper is not used within the court. Once everyone within the court enterprise understands the paper-on-demand philosophy and value, everyone can help by questioning every piece of paper that is found. The “paper-police” have an easy job, because paper stands out like a sore thumb. ECM enables a paper-on-demand environment by providing the means to store, retrieve, secure, route, and sign documents, all within a digital environment. When executed properly, the benefits to this dramatic shift in process and culture are tremendous.
3. ECM Technology ECM Technology is a classification of systems that include several related technologies. The AIIM organization is a good resource for acquiring an in-depth independent definition of ECM (Visit the AIIM website at http://www.aiim.org). AIIM defines ECM as: “Enterprise Content Management (ECM) is the strategies, methods and tools used to capture, manage, store, preserve, and deliver content and documents related to organizational processes. ECM tools and strategies allow the management of an organization’s unstructured information, wherever that information exists.”
Source: http://www.aiim.org/What-is-ECM-Enterprise-Content-Management.aspx In courts the primary content that is being managed are documents, and by far the largest collection of documents are found in case files. Documents often originate in paper form, but can be managed in any number of digital formats. Paper documents are scanned to a digital image format. Courts may also need to manage other digital assets, including video, audio, and photographs. A good ECM solution allows for the management of all popular digital file formats, and therefore, the discussion herein is inclusive of a diverse set of digital data.
4. Courts There are many different types of courts, and all can benefit from ECM technology. Because many of the benefits are derived through process improvement, courts with higher complexity will benefit significantly more than simpler courts. For example, courts that handle Domestic Relations, Criminal or Juvenile cases will derive more benefit than courts that handle traffic violations. Higher caseload will also drive increased value of an ECM solution. The “Paper-On-Demand” Court ECM in Courts 4
5. Paradigm Shift: The Electronic Case File Most courts utilize a paper case filing system similar to the way courts managed files a century ago. In a paper system, the case file is created at case initiation and lives in a filing system controlled by the court for the life of the case, plus a defined retention period. The paper file is the epitome of inefficiency. Here are just some of the major problems: • Paper is expensive, takes up space and degrades over time • Misfiling rates commonly are 2% or greater • Retrieving a paper file is time consuming – a large paper-based court requires a substantial staff to manage the file room • A physical paper file can only be in one place at a time which leads many offices to create and maintain duplicate copies of the file • With a paper file, only one task can happen at a time on a case, which increases court backlogs • Fraud opportunities abound when the paper file is the primary record • Remote access is difficult or impossible • Offices become overrun with paper, which frustrates staff and clients • It is difficult to secure or seal all or part of a paper case file An electronic case file repository is at the heart of a good ECM solution. The electronic repository provides court workers and outside parties with an efficient consistent view of the case file on demand. The case file can be presented in different ways, depending on the user’s role. For example, case workers in the trial court may see a different file organizational structure than prosecutors. Any number of users can view electronic documents simultaneously. Security is granular and can be defined at the case, case type, or document level. High-speed scanners are often deployed to allow for the capture of new documents and for the scanning of existing case files. E-filing is a popular and growing mechanism to allow documents to arrive in an electronic format from the filer, reducing the need for scanning and indexing (see E-filing discussion below). Documents need to enter the repository in a controlled way based on rules defined by the court. These rules are enforced on all documents and require that incoming documents be reviewed for quality and “indexed” to the appropriate case. Courts will generally establish a set of document codes that provide a shorthand convention for identifying a document’s purpose (for example an “Order to Change Parenting Time” might be coded “ORDPT”). This provides consistency and efficiency in capturing documents. Courts are inherently easy to move to an electronic case file because most have been performing efficient “indexing” of their documents for many years. The “Paper-On-Demand” Court ECM in Courts 5
6. Workflow Technology – The Key to Process Efficiency Establishing an electronic case file repository (as described above) provides key benefits to the courts, but doesn’t stop there. Many courts make the mistake of focusing on creating the electronic case file repository and miss out on significant extra value provided by Workflow Technology. Workflow allows for automated routing and processing on documents and data contained in the electronic repository. So an electronic repository is essential for Workflow to be possible. Documents that enter the court are either coming from inside the court, outside from the public, or inter-agency. Most documents that enter the case file have a process attached to them. In a paper filing system the process is performed by passing the paper document around to the appropriate user’s inbox or desk. In an ECM system the workflow becomes the inbox and a whole lot more. Workflow allows the court to take the myriad of routing and processing rules and model a system to ensure they are performed efficiently and consistently. In many courts the processing rules are stored in key staff member’s brains. Workflow does not remove the value of the knowledge worker. In virtually every situation Workflow makes knowledge workers more valuable to the organization, while preventing less experienced employees from making processing mistakes. Another way to think of the role of Workflow Technology is that it fills in the processing gaps that are not addressed by the Court’s Case Management System (CMS). No CMS can perform every processing step for every court, and some are better than others. ECM does not replace the CMS; it is complementary in almost every way. The Workflow will read data from the CMS and in many situations update the CMS. Workflow never forgets: Many processes in a court are time-based. For these processes, a court reaction or event is required within a specific time period. For example, a party may be served a notice to appear or respond within a particular timeframe. As deadlines pass, the court’s responsibility changes. Workflow can effectively manage any number of these time-based items and automatically queue a task to a user when needed (but only when needed). This lifts a tremendous load from court staff to track and remember. Nothing falls through the cracks: The Workflow process is designed without cracks for documents to fall through. Documents cannot be accidentally discarded or shoved in a desk drawer. Because capture is performed on all documents as near as possible to their origination or receipt, the opportunity to lose documents is essentially eliminated. Once the system is in place, the staff will quickly develop a confidence that every document is in its appropriate place and secure. Configurable Workflow: Change is constant in a court environment. Processing rules are driven by outside forces such as crime, civil litigation, and changes in the law. A good Workflow solution must be easy to change. More important, it must be easy for the court itself to change. The solution must be configurable, with little or no custom programming, because custom programming makes change difficult and expensive. The “Paper-On-Demand” Court ECM in Courts 6
Rigorous Audit Trail: Keeping track of documents and their history is paramount to running an efficient and transparent court. Legislation and privacy regulations require case information security to be airtight. A proper ECM implementation will provide an audit trail of every action performed on every document and process, including viewing, printing, routing and more. The solution must track both the action performed as well as who and when. Additionally, workflow actions can be tracked allowing you to pinpoint to the second exactly how long it took for each processing step. This allows a tremendous opportunity to identify bottlenecks in court processes.
7. Cost Savings A properly implemented ECM solution will pay for itself in 12-18 months. In business terms, this is among the fastest ROI of any technology initiative. It has been shown that a court using ECM with Workflow utilizes its human resources approximately 30% more efficiently than a paper-based court. (References available upon request.) A court will typically achieve cost savings, such as: • Improved user productivity • Immediate, secure, multi-user access to case files • Improved security and disaster recovery • Improved audit ability and accountability • No lost files or documents lead to better justice • Workflow allows for better load balancing, resource utilization and sharing • Improved effectiveness of CMS and other line-of-business applications • Better customer service • Better employee work environment, which improves retention and reduces recruiting costs and other work-related issues • Space savings • Copier and printer cost savings 8. Electronic Signature Signing documents electronically represents the “last mile” of court efficiency in an ECM solution. When all the documents in the case file are electronic, electronic signature is needed to efficiently and legally sign documents.Author’s Note: See “About the Author” (page 8) for information about a unique electronic signature solution.
9. E-Filing E-Filing allows parties to file with the court clerk completely electronically through the Web. E-Filing involves registering with the court and can be performed by attorneys or by individuals (Pro-se). Once registered with the court, the filer will complete an online form and possibly attach supporting documents that are all transmitted to the court for review. The court will review the filing and either reject or accept it, which will update the court’s Case Management System (CMS) and send electronic notifications (service), as appropriate. The “Paper-On-Demand” Court ECM in Courts 7
E-Filing goes hand-in-hand with electronic service, where the E-Filing system will notify parties through electronic means. Workflow is key to E-Filing because the filed transaction needs to go through an approval process. As with manually filed documents, the rules for each type of transaction can be complex, and therefore, workflow is an ideal solution for managing the processing rules in a consistent way.
10. Legality of Paper-On-Demand Technology sometimes moves faster than lawmakers. Some states still require courts to maintain a paper case file or capture a “wet” signature. Every day more and more states recognize that a properly implemented digital file is better for preserving case information than a paper alternative. The good news is that even if your jurisdiction is required to maintain a paper case file, this does not preclude the court from leveraging ECM technology to develop a paper-on-demand environment. After all, the law typically says that the court must maintain a paper file; it does not say that the court mustuse the paper file for daily work. Courts have consistently ruled that digital transactions have the same weight as their non-digital counterparts. This is evident throughout our society in the explosive growth of the Web, electronic payment and signature interfaces at most retail locations. Electronic signature and electronic filing is accepted and legal in almost all situations. (Due diligence is required of any court to ensure legality in each specific environment and situation.)
11. Conclusion Courts are complex environments with unique processing needs. Courts serve the interests of a number of stakeholders and must operate consistently and efficiently in order to be fair to all parties and maximize scarce resources. A poorly run court has a widespread long-term negative effect on society. ECM technology will provide more benefits faster than any other single technology, and all stakeholders will experience benefits.
The “Paper-On-Demand” Court ECM in Courts 8
About the Author This paper was developed by ImageSoft, Inc., (www.imagesoftinc.com) a leading provider of ECM solutions to courts. ImageSoft has been implementing sophisticated Workflow solutions for courts for more than 15 years. ImageSoft works with all types of courts, and has implemented courts of both high and low complexity. ImageSoft provides long-term maintenance and support to court clients to ensure that the solution is stable and continues to provide benefits long into the future. ImageSoft provides unique components as part of our iJustice suite, including: • Pre-configured workflows and taxonomy for: – Clerk Intake – Domestic Relations – Criminal – Civil – Probate – Juvenile – Prosecutor – Victim’s Rights – Law Enforcement • TrueSign™ – electronic signature • iDocCreator – dynamic document creation • iDocArchive – automatic document archive from Adobe Acrobat (PDF) • iJustice E-Filing – Oasis LegalXML compatible E-Filing solution ImageSoft provides a unique solution called TrueSign™ that provides the following key features and benefits: • Secure, verifiable signing of electronic documents • Judge and other court staff store a signature on file that is applied securely to documents by the signer in the workflow, faster than signing with a pen. • Support staff can apply “sign here” flags to assist the judge in signing efficiently • Seals and stamps can be applied in a similar manner • An audit trail is kept, and all document versions are preserved • Outside parties can sign through a signature pad • Final documents look similar to documents that have been signed with a pen, and therefore, are suitable for long-term archive and portable without requiring the receiver to own any proprietary technology. The author may be contacted on the Web at www.imagesoftinc.com, by e-mail at: [email protected], or via phone at (888) 315-3901. Disclaimer This document is provided by the author at no cost, as is, with no warranty or guarantee of any kind. The author makes no representation that this document is fit for a particular purpose. Forward looking statements and statements of fact are made based upon the author’s past experience and future results may vary. Law and regulations vary from state to state, and reader should not rely on this document to be valid in every situation. Local due-diligence is required.
www.imagesoftinc.com [email protected]
ImageSoft, Inc. ▪ 25900 W. 11 Mile Rd. ▪ Southfield, MI 48034 phone: (248) 948-8100 ▪ fax: (248) 948-8146 Protecting the Appellate Court: What Appellate Court Administrators Need to Know About Security and Why! Tuesday, July 31, 2012 8:00 a.m. – 9:30 a.m. Signers’ Ballroom Speaker: Mr. Thomas F. Lorito, Senior Consultant National Sheriffs’ Association, The Community Safety Institute After a career of more than 35 years in the New York Courts, Tom retired in November of 2010. His career included serving 18 years as the Chief Court Officer for the 10th Judicial District, Suffolk County. As Chief, he was responsible for all aspects of court security operations in 12 court facilities and commanded more than 300 court officers. His responsibilities included being the primary advisor to the District Administrative Judge on security related matters, developing procedures, and reviewing all plans for new facilities and renovations relative to security issues. In addition, he was a adjunct faculty member of the New York State Court Officer’s Academy. For the last 8 years of Tom’s career, he served as District Executive in the same jurisdiction. In this position, he was the primary advisor to the District Administrative Judge on all court operation issues and oversaw all court operations including security. He has been a member of the National Sheriffs’ Association Court Security Training and Assessment Team for over 11 years and was recently appointed to its Court and Judicial Security Advisory Board. He also has been a consultant with the Community Safety Institute for 8 years. Tom is also a member of the Mid-Atlantic Association for Court Management Advisory Board and Professional Development Committee. Tom is also a member of the National Association for Court Management. He is a Past-President of the Chiefs of Police Association of Suffolk County and The International Association of Court Officers and Services. His educational background includes a Bachelor’s Degree from the University of Massachusetts and a Master’s Degree from Long Island University, C.W. Post Campus. Tom attained the rank of Major in the U.S. Army Military Police Corps.
Page 1 of 1 6/5/2012
Protecting the Appellate Court: What Appellate Court Administrators Need to Know About Security and Why !
National Conference of Appellate Court Clerks Charleston, South Carolina July 31, 2012
OBJECTIVES
This program is designed to provide appellate court administrators with an understanding of the essential components of an effective court security program and the ability to assess the court security program in your jurisdiction.
Court Security
Effective Court Security …… means an integrated approach to the security process that ensures the integrity and safety of the court system and its participants, by effectively evaluating, planning and propro--activelyactively managing threats and potential threats directed toward the court system.
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Recent Acts of Violence
.. Crawford County,AR - September 2011 .. Clark County, NV - January 2010 .. Pinellas County, FL - May 20082008May .. Merced County, CA - April 2008 .. Reno, NV NVReno,NV -- March 2006 .. Fulton County, GA - March 2005
WHAT ARE THE ESSENTIAL COMPONENTS OF AN EFFECTIVE COURT SECURITY PROGRAM?
THE COURT SECURITY COMMITTEE
JudiciaryJudiciary Court Administrators Court Security AttorneysAttorneys Facility Occupants Maintenance/Custodial Service Providers Other Law Enforcement Ancillary Agencies
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Vulnerability Assessment Process
Vulnerability Assessments are a way to identify weaknesses
What is Vulnerability?? Vulnerability is the susceptibility of resources to negative impacts from hazardous events.
Court Security Assessment Matrix
LOW RISKRISKLOW MODERATE RISK HIGH RISK
LOW CRITICALITY LOW CRITICALITY LOW CRITICALITY
LOW RISKRISKLOW MODERATE RISK HIGH RISK
MODERATE MODERATE MODERATE CRITICALITY CRITICALITY CRITICALITY
LOW RISKRISKLOW MODERATE RISK HIGH RISK
HIGH CRITICALITY HIGH CRITICALITY HIGH CRITICALITY
Physical Security
Exterior
Interior
Access Control
99
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Standard Operating Procedures
Courtroom Operations
Screening Operations
Prisoner Operations
Facility Security
EMERGENCY EVENTS
Prisoner Escape Active Shooter Hostage/Barricaded Subject Bomb/WMD, etc . FireFire Courthouse Violence ProtestsProtests LockdownLockdown
TRAININGTRAINING
Court Security Personnel
Civilian Personnel
JudiciaryJudiciary
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Professionalism
Appearance
AttitudeAttitude
Preparation
INCIDENT REPORTING
Specific Reports
Review and Use of Reports
JUDICIAL THREAT MANAGEMENT
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Judicial Threat Management
Stockton, CA March 4,2009 San Joaquin County, CA Superior Court Judge Cinda Fox stabbed by defendant while on bench
Atlanta,,, GA., March 11, 2005: Judge Rowland Barnes killed while on bench
Chicago, February 28, 2005: U.S. District Judge Joan H. Lefkow – Husband & mother killed at her home Reno, Nevada June 12 , 2006: Family Court Judge Chuck Weller was shot in his chambers
Judicial Threat Management
Judge Robert Vance of the Eleventh Circuit Federal Court of Appeals, was assassinated December 16, 1989, by use of a pipe bomb mailed to his home, by Walter LeRoy Moody.
1717
ELEMENTS OF JUDICIAL VIOLENCE
Protecting Public Officials/ Figures
President, Governor, Legislators, ClbitiClbitiCelebrities
JudiciaryJudiciary
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Judicial Threat Management
Attack Path to Intended Violence
Breach
Preparation
Research/Planning
Ideation
Grievance Grievance
Judicial Threat Management
Protective Intelligence 3 Key Functions: Identification Assessment Management
INHIBITORS FamilyFamily HomeHome CareerCareer ResourcesResources ReputationReputation HealthHealth Alterna tiAlttitives Belief system Self esteem DignityDignity
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ICs and Threats
Threat is an explicit or implicit expression of an intent to do harm.
Inappropriate Communication contains ominous, unsettling, untoward or questionable language or suspicious activities.
HIGH PROFILE CASES
HIGH PROFILE CASES
W hat is a What is a High RiskHigh Risk / High Profile Case?Case?
Has potential for unusual amount of jeopardy May have drawn media attention May involve heinous acts by Defendant(s) May involve celebrity status of participants Requires more security than normal
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HIGH PROFILE CASES
Stakeholders: SecuritySecurity Judiciary/ Administration CounselCounsel CCtourtroom StffStaff Victims and families Interested Parties Media/ Public Information Officer All Employees
HIGH PROFILE CASES
Planning and preparation
Execution
After Action
THANK YOU
Tom Lorito
631631--953953--55505550
9 Legacy of the Nuremburg Trials Tuesday, July 31, 2012 9:30 a.m. – 12:00 p.m. Signers’ Ballroom Speakers: Professor Gregory S. Gordon, Director University of North Dakota Center for Human Rights and Genocide Studies Ms. Sandra Schulberg, Restoration Producer Nuremberg: Its Lesson For Today Professor Gregory S. Gordon, Director Professor Gregory Gordon is Director of the University of North Dakota Center for Human Rights and Genocide Studies and teaches courses in criminal law, criminal procedure, international law, international human rights law, and comparative law. He earned his Bachelor of Arts degree (summa cum laude) and Juris Doctor at the University of California at Berkeley. He then served as law clerk to U. S. District Court Judge Martin Pence (D. Haw.). After a stint as a litigator in San Francisco, he worked with the Office of the Prosecutor for the International Criminal Tribunal for Rwanda (ICTR), where he served as Legal Officer and Deputy Team Leader for the landmark "media" cases, the first international post-Nuremberg prosecutions of radio and print media executives for incitement to genocide. For this work, Professor Gordon received a commendation from Attorney General Janet Reno for "Service to the United States and International Justice." After his experience at the ICTR, he became a white-collar criminal prosecutor with the U.S. Department of Justice, Tax Division. Following a detail as a Special Assistant U.S. Attorney for the District of Columbia, he was appointed as the Tax Division's Liaison to the Organized Crime Drug Enforcement Task Forces (Pacific Region) for which he helped prosecute large narcotics trafficking rings. Also during this time, he was detailed to Sierra Leone to conduct a post-civil war justice assessment for DOJ's Office of Overseas Prosecutorial Development, Assistance, and Training. In 2003, he joined the Criminal Division's Office of Special Investigations, where he helped investigate and prosecute Nazi war criminals and modern human rights violators. Professor Gordon has been featured on C-SPAN, NPR, the BBC, and Radio France Internationale as an expert on war crimes prosecution and has lectured on that subject at the U.S. Army J.A.G. School, the Harry S. Truman Presidential Museum and Library, and the United States Holocaust Memorial Museum. In addition to contributing to the Holocaust Museum's influential "Voices on Antisemitism" podcast series, he has had the honor of speaking to members of both the British and Canadian Parliaments and sharing the dais with former U.N. Ambassadors Richard Holbrooke and Andrew Young. On behalf of the Ethiopian government, he has trained high-level federal prosecutors in Addis Ababa and trained attorneys in preparation for atrocity trials at the Extraordinary Chambers in the Courts of Cambodia and the War Crimes Chamber for the Court of Bosnia and Herzegovina. His scholarship on international criminal law has been published in leading international academic publications, such as the Columbia Journal of Transnational Law, and the Virginia Journal of International Law. He has presented his work at institutions such as Yale University, Georgetown University Law Center, Emory University, and Katholieke Universiteit Leuven. He was the inaugural winner of the North Dakota Spirit Law School Faculty Achievement Award in 2009. In 2010, Professor Gordon co-wrote the U.S. Supreme Court amicus brief of Holocaust and Darfur Genocide survivors in the historic human rights case Yousuf v. Samantar. He also represented the International League for Human Rights at the International Criminal Court Conference in Kampala, Uganda. In April 2012, after the announcement of the Charles Taylor verdict in The Hague, he served as a live television analyst for the BBC World News.
Page 1 of 2 Ms. Sandra Schulberg, Restoration Producer Sandra Schulberg’s career spans many years as a producer, film financier, and advocate for “off-Hollywood” filmmakers. She spent seven years in Europe as a senior executive for American Playhouse/Playhouse International Pictures, where she played a role in the financing and marketing of more than two dozen Playhouse movies, including I Shot Andy Warhol, Angels & Insects, Amateur, Safe, and Julie Taymor’s first film, Fool’s Fire. She spent three years managing film investment for Hollywood Partners, a private German media fund, serving as executive producer for the Oscar-nominated Quills, Undisputed, and Adrienne Shelly’s first movie I’ll Take You There, among others. Under her own banner, she produced John Hanson’s Wildrose and Jill Godmilow’s Waiting for the Moon (Sundance Grand Prize winner); line produced Glen Pitre’s Belizaire the Cajun; co-produced Ann Hu’s Shadow Magic; and raised finishing funds for Barbara Kopple’s Woodstock film, My Generation. The first two movies she associate produced – Alambrista and Northern Lights – won the Camera d’Or award at the Cannes Film Festival, and she handled the international sales. In 2003, she became interested in the use of film as an instrument of public diplomacy, and has led the effort to preserve and revive the films of the Marshall Plan (almost 300 titles). Her 40-film retrospective, Selling Democracy: Films of the Marshall Plan, 1948-1953, was featured at the 2004 Berlin Film Festival, and a 25-title series has traveled to a dozen North American cities. On behalf of the U.S. Department of State, she presented Marshall Plan film programs in various European countries during 2007, 2008, and 2009. She is at work on a multi-disc DVD collection, which includes interviews with Marshall Plan filmmakers and scholars. In 2009, in collaboration with the U.S, German, and Dutch archives, she completed the restoration of Nuremberg: Its Lesson for Today [The Schulberg/Waletzky Restoration], the official U.S. government film about the first Nuremberg trial, and she is writing a book called The Celluloid Noose about the hunt for Nazi film evidence presented at the trial. Founding Director of the IFP, the largest organization of American indie filmmakers in the U.S, she is currently launching IndieCollect, a campaign to educate filmmakers about preservation, to get their film & digital materials properly stored at partner archives around the U.S, and to create a comprehensive online catalogue and numbering system for their work. She holds a BA from Swarthmore College (in Anthropology & Linguistics), and has begun a Master’s in Public Diplomacy at USC’s Annenberg School on Communications. She is an Adjunct Assistant Professor at Columbia University's Graduate School of the Arts, where she teaches Feature Film Financing and International Co- Production. Born in Paris, she is fluent in French, Spanish, and German.
Page 2 of 2 The Legacy of the Nuremberg Trials
The genesis of modern international criminal justice traces back to the end of World War II with the establishment of the International Military Tribunal at Nuremberg. The initial Nuremberg trial of the top Nazi leaders during 1945-1946 set a remarkable precedent. As Justice Robert Jackson, the Chief American prosecutor, noted eloquently in his epochal opening statement: "That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason." The trial of the major leaders was followed by twelve subsequent trials (held before U.S. military courts) of various sectors of Nazi power, including the so-called Judges' Trial, Doctors' Trial, Ministries Trial, Einsatzgruppen Trial, and IG Farben trial. In the wake of Nuremberg, a whole slew of human rights instruments were adopted by the international community, including the Universal Declaration of Human Rights and the Genocide Convention. Then, after a forty-year lull during the Cold War and horrendous inter- ethnic violence in the Balkans and Africa, the Nuremberg precedent took on new life with the creation of ad hoc tribunals to deal with atrocities in the former Yugoslavia and Rwanda. We have since seen the establishment of new tribunals for Sierra Leone and Cambodia, as well as a permanent International Criminal Court. For this program we will explore what happened in Nuremberg after the Second World War and how that gave rise to the modern human rights movement and our current efforts to bring the worst perpetrators of atrocities to justice. The session will include a lecture from former war crimes prosecutor and current University of North Dakota law professor Gregory Gordon and a showing of the recently restored film "Nuremberg: Its Lesson for Today." This will be followed by a Q&A with the film's producer, Sandra Schulberg and Professor Gordon. Features
A Long-Forgotten Film on the Nuremberg Trials Helps Rekindle Interest in the Holocaust
Posted Feb 1, 2011 4:10 AM CST By Terry Carter
Photo courtesy of NARA
Associate Justice Robert H. Jackson was cussing mad when he wrote a letter to Secretary of the Army Kenneth Royall on Oct. 21, 1948. And it had nothing to do with the business of the Supreme Court. In two single-spaced pages, Jackson was detailing why the Army should OK the U.S. release of a documentary film it had made about the first Nuremberg trial, where Jackson had served as lead prosecutor. He had learned that the government denied the New York City Bar Association's request to show the film.
Jackson described to Royall a profanity-laden letter he'd already sent to the city bar's president, Harrison Tweed, decrying what he saw as a bone-headed decision. He said Tweed had asked whether the letter could be read to the group—minus the profanity.
"I told him he could read it if he would not cut out the profanity," Jackson wrote Royall, underlining his displeasure. The film, Nuremberg: Its Lesson for Today, detailed the Nazi rise to power and the systematic atrocities committed by the regime. Jackson urged the Army to release the film, not only to the New York bar group but also "for showing by private enterprisers who might desire to exhibit it."
Jackson's interest in the film was obvious: He had taken leave from the Supreme Court in 1945-46 to head the American prosecution team at Nuremberg and became the architect of the international trial process. It was the first trial of its kind, levying justice rather than victors' raw vengeance for 21 of the most important Nazi leaders. Still, his request was unavailing. Doing so, Roy all responded, would be "contrary to present policies and aims of the government."
What Royall was saying was that Cold War exigencies had changed everything: A vanquished Germany was now an ally; the Soviet Union, once an ally, was now an antagonist. And the film rubbed against that new reality.
Jackson died in 1954. And although the film was widely screened in Germany in 1948 and 1949—to ensure the German public would know exactly what had happened under Nazi rule—it would languish in dusty vaults and movie canisters for decades, going virtually unseen in the U.S.
Bringing the film's title to full irony, the New York bar group did see a version of it—a self-serving propaganda vehicle hurriedly created by the Soviets. Developed from stock trial footage and related films, it depicted the USSR as bringing the Nazi regime to justice in the course of single-handedly restoring world order.
But now, finally, Nuremberg: Its Lesson for Today can be viewed by Americans. The film has been meticulously restored by the late director Stuart Schulberg's daughter, Sandra Schulberg, along with documentarian Josh Waletzky. They worked with an original copy provided by Germany's official archives, and the new release is now showing worldwide.
Not only has the film received critical and popular acclaim, it has become the focal point of a re-emerging interest in the Holocaust and the role played by lawyers and judges within the Nazi regime's highly codified machinery of death. From hugely popular CLE programs created by the U.S. Holocaust Museum to a newly created course at the U.S. Military Academy at West Point aimed at promoting the rule of law, the Holocaust is instructing a new generation on the horrific outcomes that result when laws and legal systems become untethered from basic moral forces.
JACKSON WAS INVOLVED IN THE FILM FROM ITS INCEPTION. When U.S. military officials in postwar Berlin tried to control the script, he intervened to ensure a big-picture, historical approach—the same view he advocated during the Nuremberg prosecution. He wanted the trial and its explication of Nazi aggression to stand as a lesson for all time.
Among those tasked with documenting the atrocities were brothers Stuart and Budd Schulberg, both writers and filmmakers on the rise. Their boss was Navy captain John Ford, the legendary Hollywood director.
Stuart Schulberg later would become NBC television's senior documentary producer until his death in 1979. He wrote and directed the Nuremberg film as a Marine sergeant working in the Office of Strategic Services, a predecessor of the CIA.
His brother Budd, a Navy lieutenant who went on to win an Academy Award for writing On the Waterfront, supervised editing of two other documentaries used as evidence in the trial: The Nazi Plan and Nazi Marine Corps Sgt. Stuart Schulberg— Concentration Camps. Segments of Budd Schulberg's documentaries are writer and director of Nuremberg: Its embedded within the Nuremberg film, illustrating much of the basis of the Lesson for Today. Photo courtesy of four-count indictment: conspiracy to wage aggressive war, crimes against Schulberg family archive. peace, war crimes, and crimes against humanity.
But it was Jackson who helped direct the director, guiding him toward the grander struggle between the evil formalism of Nazi-era laws and legal procedures, and basic human rights.
"Jackson became the film's frustrated stepfather, uncle, supporter and participant," says John Q. Barrett, a professor at St. John's University School of Law in Queens, N.Y. An expert on the Nuremberg trials, he now is working on a biography of Justice Jackson. (Barrett provided Jackson's correspondence with Royall for this story.)
The second sentence of Jackson's eloquent opening statement at the first Nuremberg trial encapsulates his passion and reasoning: "The wrongs which we seek to condemn and punish have been so calculated, so malignant and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated."
The film is a concise, readily grasped evidentiary primer on the rise and reign of the Nazis, as well as a cinematic record of what was arguably the only true "trial of the century."
Sandra Schulberg—a producer whose credits include 1987's Waiting for the Moon, a well-received movie about Alice B. Toklas and Gertrude Stein—was born two years after the Nuremberg film's completion. She didn't see it until 2004, when she was preparing an exhibit of films about U.S. efforts in the Marshall Plan to rebuild Europe after World War II.
Nuremberg moves at a compellingly clipped pace with a newsreel-noir style and is now, in the restored version, narrated by Liev Schreiber—an actor whose voice is probably better known than his face, thanks to his many voiceovers in HBO and PBS specials.
The restored version offers a number of important tweaks and flourishes. For example, in the original the Nazi defendants are seen in the dock but not heard, with a narrator sometimes reconstructing their testimony. Through careful synchronization of original sound recordings with the trial's film footage, we now hear the rationalizations of the Nazi leaders in their own voices—with subtitles.
Even in black and white, the restored film has a newness and freshness for those who have grown up in a time of multichannel, multimedia, self-created learning and news sourcing. They may or may not have learned details of Hitler's Third Reich or seen the stark, searing filmed evidence of the atrocities it wrought.
The film was an eye-opener for many of the 500 cadets who came to a screening of Nuremberg last April at West Point, prior to the U.S. theatrical release last fall in New York City and Washington, D.C.
"Some of them had no idea of some of the details of how [the Holocaust] came about and the extent of the atrocities," says Col. Maritza Ryan, head of West Point's Law Department, which has 20 professors, all of them lawyers. "They said it was difficult for them to watch but important for them to see."
The film has gained unexpected traction and buzz. That surprised and pleased some who are working to advance the Nuremberg Principles adopted in 1950 by the International Law Commission of the United Nations. The principles have influenced both the creation of the International Criminal Court and the procedures adopted by various war crimes tribunals in recent years.
"We are all astonished at the attention and huge reaction [Sandra Schulberg] is getting from so many places with this film," says Raye Farr, director of the Steven Spielberg Film and Video Archive at the United States Holocaust Memorial Museum in Washington, D.C.
"What people don't know and what you don't see in the film is the tremendous investment Sandra's father and [Justice] Jackson and everybody had in this, thinking they would educate the world," she says. "They thought this was the most important documentary of the 20th century. It didn't turn out that way. But maybe it'll be one of the most important of the 21st if it lays down some vision of war crimes prosecution and holding individuals responsible for their actions."
FOR A VARIETY OF REASONS, SOME MORE OBVIOUS THAN OTHERS, this story of the rise of the Nazis has struck a chord. Renewed relevance seems to be the film's strength.
First and foremost, the Nuremberg Principles hold that individuals and leaders, including heads of nation- states, are no longer immune for atrocities committed on behalf of their government. The Ad Hoc Criminal Tribunals for the Former Yugoslavia and Rwanda were the first bodies created to try individuals for war crimes since Nuremberg, and their semblance of success was a direct factor in the creation of the International Criminal Court.
Moreover, the world is dealing increasingly with the unchecked, brutal fervor of historic tribal rivalries, religious animosities and routine political violence. Too often the result has been genocide, rape, and the slaughter of women and children.
"The Nuremberg film had lessons for the day in 1948 but now has lessons for the year 2011 and beyond, which is that for great crimes, justice must be done," says Stephen J. Rapp, the U.S. ambassador-at-large for war crimes issues, who spoke at West Point when the film was screened there.
"In civil wars like those in Sierra Leone and Rwanda, there is more danger now in being a woman or innocent child than being a soldier," says Rapp, German moviegoers leave the Kamera who previously was chief prosecutor at the Special Court for Sierra Leone movie theater in Stuttgart in November and before that chief of prosecutions at the International Criminal Tribunal 1948 after viewing Nuremberg. Photo for Rwanda. courtesy of Schulberg family archive. Nuremberg is especially resonant for legal professionals, some of whom have invoked the Nuremberg Principles in their protests against the Justice Department's secret approval of expanded presidential powers after the 9/11 terrorist attacks.
Part of that debate began with the military. In the early 2000s, West Point cadets were asking their professors in the Law Department about the legal grounds for U.S. treatment of detainees suspected of being terrorists, including the controversial issues of aggressive interrogation, particularly waterboarding. The answers, in effect, would seem a reversal of roles: the military calling out civilians for their aggressive tactics in executing war.
"I tell [the cadets] there's been a lot of confusion about waterboarding," says Ryan. "Is it unlawful, and is it a war crime to do that? Yes! We're very clear about that."
In response, the Law Department launched a Rule of Law Center in 2008. The center reaches out to students at other military academies, as well as various universities. For instance, the cadets had a joint symposium-workshop on Shariah law with students from the Columbia University School of Law, which included a role-playing look at a custody dispute in a divorce.
At the center's inaugural conference in 2008, one featured speaker was Alberto Mora, who as general counsel of the Navy between 2001 and 2006 famously took the lead at the Department of Defense in opposing harsh interrogation techniques.
Mora spoke to the gathering about the rule of law and the war on terrorism, saying that we should not engage in cruelty, which by definition would preclude the greater evil: torture.
"Whatever else may be said about it in the future," Mora told the cadets, "this war is historically significant because we, as a nation—despite our laws, values and traditions—consciously applied cruelty against captives and sought to amend or reinterpret our laws to make this, which was illegal, legal."
ONE WAY THE NAZIS GAINED AND EXPANDED POWER was to gradually co-opt the justice system through its courts and lawyers. It was accomplished in such a fashion that, even after Germany lost the war, many continued to believe they had simply applied the law and done their jobs. The Nazis, meanwhile, gained legitimacy for reprehensible policies by wrapping them in the cloak of legal formality.
"The Nazis were working very carefully," says William Meinecke Jr., a historian at the Holocaust Museum who has developed a program aimed at teaching lawyers the lessons of the Holocaust.
"They knew they were dependent on these professions in operating the system, and wanted to bend it to their way of thinking."
The Nazis worked at getting sympathetic leadership in the organized bar; initiated a loyalty oath to Hitler as part of admission to practice; expanded the scope and reach of various laws; and developed incentives for lawyers to help gain their cooperation, as well as heavy-handed and sometimes brutal disincentives.
The Nazis cut the number of practicing lawyers by a quarter, weeding out those who might represent defendants considered enemies of the state or otherwise cause problems. They quadrupled pay for the rest, many of whom were either civil servants or received fees as court-appointed counsel.
"The oath of loyalty to Hitler was sometimes used to disbar lawyers representing defendants deemed enemies of the state," Meinecke says.
Since 2008, Meinecke has traveled the country presenting his interactive program, called "Law, Justice and the Holocaust: How the Courts Failed Germany." With a Socratic dialogue provoking thought but not providing solutions, it shows lawyers and judges how easily their shortcuts, choices and decisions could lead to the same slippery slope that facilitated Nazi aggression and the systematic genocide of European Jews they referred to as "the Final Solution."
"It takes ethics out of the realm of rules on the commingling of client funds and elevates them to a much more profound understanding of our role in a democratic society," says Sheila Polk, county attorney in Yavapai County, Ariz. "In my 27 years of practice and doing CLE every year, I've never encountered something that drove home the lessons in such a way. You come to understand the consequences of taking shortcuts, so you can fast-forward and see what might happen if you ignore something that seems minor—it opens you to larger and larger violations."
One of the most powerful stories in Meinecke's presentation concerns what happened at the very top of Germany's legal profession in 1933. Society was in turmoil, suffering in the midst of the Great Depression. Communists and Hitler's followers were locked in a violent competition to succeed the democratic but ineffectual Weimar government. Increasingly, Jews in German society were threatened by Hitler's efforts to marginalize them—efforts that were often unopposed. As Meinecke tells it, after being appointed chancellor in 1933, Hitler later assumed the role of fŸhrer, in effect closing out the coalition government. Soon after consolidating and thus seizing power, Hitler invited Erwin Bumke, then president of the Imperial Court—the equivalent of chief justice—to a one-on-one meeting.
Bumke had been nominated in 1929 by Germany's minister of justice, a liberal democrat who declared Bumke would not be influenced by the political infighting of that time. In 1933 the relatively new chief justice was skeptical of Nazis coming to power, but believed it would have no impact on the courts.
At their meeting, Meinecke says, "Hitler took Bumke by both hands, stared directly into his eyes and said, ÔHerr Bumke, help me save Germany.' One cannot underestimate the power of Hitler's charisma here. By all accounts Bumke was converted to the Nazis' cause on the spot."
As soon as he got back to the court, Bumke removed the portrait of Germany's first chief justice, who had been a convert from Judaism and thus was still a Jew in the eyes of the Nazis.
THE HOLOCAUST MUSEUM HAS OFFERED SIMILAR TRAINING ON AN AD HOC BASIS since 1997. Among its clients have been the District of Columbia Bar, the D.C. police department and the Federal Judicial Center.
But it was a request in 2006 from Polk, the Arizona prosecutor, that set in motion the fuller, refined presentation that quickly has become much sought after by bar and judicial groups around the country.
That year Polk had been part of a delegation of 12 civic, political and law enforcement leaders from Yavapai County who visited the Holocaust Museum to learn about its course for police training. Polk was so impressed that she asked museum officials to design one for her prosecutors. It was presented in 2007 and, Arizona's dry heat notwithstanding, the effort snowballed. In 2008, Meinecke returned to repeat the presentation for the state judiciary, from magistrates to the Supreme Court; then he staged another in 2009 for the Conference of Chief Justices at their annual gathering in Santa Fe, N.M.
"Then it just exploded in 2010," says Meinecke, with more than 30 requests by December from various state courts and bar groups.
The museum doesn't promote the program because it can't keep up with demand created by word of mouth.
"I think they're all shocked how easy the transition was from democracy to dictatorship, and how early the courts failed," says Lynn Williams, director of the museum's Leadership Programs.
In December 2009, Polk apparently had her own epiphany. She had been asked to take over the prosecution of members of nearby Maricopa County's board of supervisors—who were facing corruption charges after challenging the controversial policies of Sheriff Joe Arpaio and Maricopa County Attorney Andrew Thomas.
After investigating the allegations, she was taken aback by their disturbing lack of substance. After Thomas filed criminal charges against yet another county official—a judge who ruled against him—Polk wrote a letter published in the Arizona Republic:
"I can no longer sit by quietly and watch from a distance. ... I am conservative and passionately believe in limited government, not the totalitarianism that is spreading before my eyes."
Some months afterward, a federal grand jury began looking into possible abuses of power by Thomas and Arpaio; that inquiry is ongoing. And last December an outside bar investigator from Colorado recommended that Thomas be disbarred. The investigative report alleges 31 ethical violations, including corruption and abuse of power. The state bar plans to hold hearings in July.
Discussions and debates triggered by the Holocaust and the Nuremberg trials touch on issues as old as warfare itself, though the complexity, scope and impact have grown beyond comprehension in a troubled and dangerous world. Nuremberg: Its Lesson for Today is providing a moral touchstone for legal professionals.
But even the rule of law cannot necessarily be attained without blood or sacrifice, says ambassador Rapp.
"We didn't get the Nazis into Nuremberg by serving arrest warrants in Berlin. We defeated them by the cost of millions of lives and brought them to justice. World War II had to be fought or the Holocaust would have been completed."
Copyright 2011 American Bar Association. All rights reserved. Conducting Effective Internal Investigations Tuesday, July 31, 2012 1:00 p.m. – 2:30 p.m. Signers’ Ballroom Speaker: Mr. Jason M. Mayo, Labor & Employee Relations Officer Human Resources Division, Labor & Employee Relations Unit California Administrative Office of the Courts Jason M. Mayo joined the Labor and Employee Relations Unit of the Judicial Council of California’s Administrative Office of the Courts (AOC) in July 2007. Working with both the AOC and California’s courts, Mr. Mayo’s primary job responsibilities are to investigate allegations of unfair treatment under existing equal employment opportunity laws and to resolve disputes between supervisors and employees. Mr. Mayo has also developed and delivered training programs on compliance with various laws affecting the workplace, as well as seminars on fostering teamwork, improving employee morale, and leadership in difficult economic times. He also routinely advises managers and supervisors on performance management issues, dispute resolution, grievance processing, and employee discipline. Prior to joining the AOC, Mr. Mayo was an associate attorney with O'Melveny & Myers LLP in the firm’s San Francisco office. Before his work in the private sector, he served as a trial and appellate attorney for the U.S. Equal Employment Opportunity Commission (EEOC) in his home state of Texas and in Washington, DC. He received his law degree with honors from the University of California Hastings College of the Law in 2002 and his Bachelor of Arts degree from New College of California in 1999. Since 1997, he has intermittently performed as a supernumerary with the San Francisco Opera.
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Conducting Effective Internal Investigations
FEDERAL ANTI-DISCRIMINATION LAWS
Several federal and state laws include prohibitions on discrimination in employment. These prohibitions are in addition those which relate to employees who take time off in connection with a legally protected leave.
The U.S. Equal Employment Opportunity Commission (EEOC) provides oversight and coordination of all federal equal employment opportunity regulations, practices, and policies.
Federal Laws Prohibiting Job Discrimination
Title VII of the Civil Rights Act of 1964 (Title VII) prohibits employment discrimination based on race, color, religion, sex, or national origin;
The Equal Pay Act of 1963 (EPA) protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination;
The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older;
Title I and Title V of the Americans with Disabilities Act of 1990 (ADA) prohibit employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments;
Sections 501 and 505 of the Rehabilitation Act of 1973 prohibit discrimination against qualified individuals with disabilities who work in the federal government and for recipients of federal funds;
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits genetic information discrimination in employment; and
The Civil Rights Act of 1991, which, among other things, provides monetary damages in cases of intentional employment discrimination.
-1- DISCRIMINATION AND HARASSMENT IN THE WORKPLACE
W ORKPLACE DIS CR IMINATION
Certain decisions or practices may constitute unlawful workplace discrimination because of their consequences, even when those consequences may be unintentional. Unlawful workplace discrimination can occur in two forms: disparate treatment or disparate impact.
Disparate Treatment
Disparate treatment occurs when an employee in a protected class is treated differently from others, specifically because of his or her protected class status. Both job applicants and employees may allege disparate treatment.
Generally, to establish an initial case of disparate treatment a job applicant must establish membership in a protected class, demonstrate that he or she was not hired for an open position for which he or she applied and was qualified, and that after being denied the job the employer continued to accept applications for the position. A similar framework has been applied to employment decisions other than hiring, such as denial of promotions, employment termination, or resignation due to intolerable working conditions. Generally, an employee in such circumstances must establish membership in a protected class and demonstrate that he or she was qualified for the job, subjected to an adverse employment action, and that the adverse action was due to unlawful discrimination.
In order to dispute a claim of disparate treatment, an employer must be able to show that the employee was not treated differently or, if the employee was treated differently, this treatment was based on legitimate, non-discriminatory reasons.
Disparate Impact
Disparate impact occurs when employment decisions or practices, while appearing neutral, have a less favorable effect for members of a protected class than for others.
Generally, an individual may successfully make a claim of disparate impact if he or she can demonstrate that the employer uses a particular practice which treats members of a protected class unequally and the employer is unable to demonstrate that the challenged practice is job related for the position and consistent with business necessity. Additionally, an individual may also make a claim of disparate impact if he or she can demonstrate that an alternative employment practice exists and the employer refuses to adopt the practice.
-2- In order to dispute a claim of disparate impact, an employer must be able to show that the challenged practice is job related for the position and consistent with business necessity, and that an alternative practice does not exist.
S EXUAL HARASSMENT
Under federal law, sexual harassment is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964.
Sexual harassment may be defined generally as unwelcome conduct of a sexual nature connected with the workplace. The courts recognize two general types of sexual harassment.
Quid Pro Quo
Quid pro quo sexual harassment occurs when sexual favors are requested in exchange for favorable employment conditions or a change in a term of employment (such as a promotion or raise).
Hostile Environment
Hostile environment sexual harassment occurs when unwelcome conduct that is sexual or gender-based in nature is sufficiently severe or pervasive enough to alter the conditions of a person’s employment and creates a hostile work environment because of a person’s sex. Unwelcome sexual behavior does not have to be directed at a particular individual to be considered sexual harassment; its mere presence in the workplace can create a hostile environment.
Employer’s Liability for Sexual Harassment
Under various state laws, an employer may be strictly liable if a supervisor sexually harasses a worker (an employee, job applicant, or certain individuals providing services under contract to the employer) even if the employer had no knowledge of the harassment; the worker suffered no tangible loss; and the worker did not report the harassment.
If a non-supervising employee or a non-employee (meaning not an employee of the court) sexually harasses a worker, the employer may be held liable if the employer’s agents or supervisors knew or should have known of the harassing conduct, and the employer failed to take immediate and appropriate corrective action.
If the alleged harasser is a non-employee, the extent of the employer's control over the non-employee as well as other issues of legal responsibility for the non- employee’s conduct must be considered in determining the employer’s liability.
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The strongest defense against employer liability is having a clearly articulated anti-harassment policy as well as an effective complaint process that is highly visible throughout the organization. Even though employers may be strictly liable under various state laws for sexual harassment by a supervisor, the “avoidable consequences” defense enables employers to limit damages, such that a worker subjected to sexual harassment will not be compensated for damages that he or she could have avoided with reasonable effort and without undue risk, expense, or humiliation.
To establish the “avoidable consequences” defense, an employer must prove the following: the employer took reasonable steps to prevent and correct workplace sexual harassment; the employee unreasonably failed to use the preventive and corrective measures that the employer provided; and reasonable use of the employer’s procedures would have prevented at least some of the harm that the employee suffered.
FILING CLAIMS OF DISCRIMINATION OR HARASSMENT
Under Federal Law
In order to trigger the enforcement protections of Title VII, an employee who believes he or she has been discriminated against on the basis of national origin, race, religion, color, or sex must file a charge with the EEOC. The EEOC will investigate the charge and generally will first attempt to mediate the dispute or reach a conciliation agreement between the parties. If agreement cannot be reached, the EEOC will either file suit on behalf of the employee or issue a “right to sue” letter advising the employee that he or she may file suit in a federal district court.
Specific time limits exist for filing a charge with the EEOC. When the charge involves a series of incidents over a period of time, at least one of the incidents must have occurred within the applicable time limit.
PROTECTION FROM RETALIATION
Employers are prohibited from retaliating against an individual for filing a charge of, participating in a proceeding related to, or otherwise opposing discrimination or harassment in the workplace. This protection is extended to an individual who objects to a legal practice that the individual “reasonably believed” to be illegal.
In addition to the protections against retaliation that are discussed above, the Americans with Disabilities Act (ADA) also protects individuals from coercion, intimidation, threat, harassment, or interference in their exercise of their own rights or their encouragement of someone else’s exercise of rights granted by the ADA.
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BEFORE INVESTIGATING: IMMEDIATE RESPONSES TO ALLEGATIONS OF DISCRIMINATION, HARASSMENT OR EMPLOYEE MISCONDUCT
Please note, every situation involving discrimination, harassment and/or employee misconduct is unique and will require a certain degree of flexibility.
INTRODUCTION
An employee presents herself to you and states that she believes she is being discriminated against by her supervisor. Or perhaps you hear a rumor that two employees are engaging in illicit activities during work.
What would be the first thing that you would do?
It is in your and the Court’s best interest to inquire into these matters promptly, fairly and effectively. However, on occasion immediate steps may need to be taken before a more formal investigation can begin.
FIRST STEP
Identify the alleged victim(s) of harassment or discrimination.
It may be difficult to identity the complainant if no one has technically complained. For example, as mentioned above, you may hear a rumor about an office relationship. In this case, while you may be inclined not to intervene, an office relationship may adversely effect office morale and – if flagrant enough – may create an actionable hostile work environment claim for others in the unit. Or, the relationship may sour, and one employee may issue a complaint against the other.
In this situation, review your Court’s policies, if any, on fraternization, and remind those employees rumored to be in a relationship that you expect them to behave professionally in the office and while attending events related to work.
Notify the supervisor of the alleged victim(s) that an employee relations issue has been raised that requires that you meet with the alleged victim(s).
Meet with the alleged victim(s) as soon as possible and get a sense of what the problem is and how long it has been going on. Take notes or have an assistant take notes.
Ask each alleged victim to submit his or her complaint in writing, but do not make this a requirement. Even if the alleged victim(s) do not want an investigation or if they do not want to put their complaints in writing, you are still obligated to look into the matter.
Remind the alleged victim(s) that they must keep the matter confidential while the investigation is pending. They are not permitted to talk to their colleagues about this issue at this time.
Do NOT indicate to the alleged victim(s) that their complaints will be treated confidentially.
Inform the alleged victim(s) that the Court treats all allegations of discrimination and harassment seriously, and the Court will respond appropriately if discrimination or harassment has occurred.
Reassure the alleged victim(s) that the Court does not tolerate retaliation for raising these issues.
Tell the alleged victim(s) that, in the event that a formal investigation is needed, a follow-up meeting will be scheduled.
Lastly, thank the alleged victim(s) for coming forward or for bringing the issue to the Court’s attention.
SECOND STEP
Identify the alleged harasser or discriminator.
Notify the supervisor of the alleged harasser/discriminator that an employee relations complaint has been raised that requires that you meet with the alleged harasser/discriminator.
As soon as possible, inform the alleged harasser/discriminator that:
(1) there has been a complaint against his or her conduct that will require further inquiry;
(2) that there has been no determination that the complaint has merit;
(3) nevertheless, the conduct – if it did occur and/or is ongoing – must end immediately;1
(4) he or she should have no contact with the alleged victim(s) unless it is necessary to conduct the business of the court;
(5) there is to be no retaliation against the employee(s) who raised the complaint;
1 Depending on the allegations made against the alleged harasser/discriminator, harsher immediate measures – such as reassignment of the accused or administrative leave – may need to be considered. As an employer, remember that it is your obligation to take immediate corrective action to stop the current conduct and deter future conduct. These measures may only be temporary, but they must be taken.
(6) the matter must be kept confidential; and
(7) violating these requirements could subject the employee to discipline separate and apart from the complaint.
Tell the alleged harasser/discriminator that, in the event that a formal investigation is needed, a follow-up meeting will be scheduled.
At this time, it is not necessary to get the alleged harasser’s/ discriminator’s side of the story. That information will be gathered later. However, you may remind the accused that they will have an opportunity to rebut the allegations.
THIRD STEP
Review your Court’s Personnel Policies. Also, your Court’s Memorandum of Understanding (MOUs) or collective bargaining agreements might contain applicable provisions regarding investigations into union-represented employee misconduct. If your Court has a policy or an applicable MOU provision that addresses internal investigations, follow the applicable procedures and timelines carefully.
Identify witnesses who may have relevant information regarding the complaint.
Identify other sources of information, e.g., files (paper and electronic), email, security videotapes and access information. Take measures to secure and preserve this data. This may require you to contact your IT department or security department for assistance.
Determine whether a formal investigation is required and consult with HR for guidance.
Superior Court of California County of San Bernardino Executive Office
Memorandum
DATE:
FROM: [Name] PHONE: 387-6240 Director of Personnel
TO: [Name]
SUBJECT Upcoming Workplace Investigation
Please be informed that you may be contacted by ______in the next week as part of a workplace investigation that is being conducted as a result of a complaint of a violation of court policy.
Our Court is committed to careful and thorough investigation of any such complaints. Accordingly, we expect our employees to cooperate to the fullest extent possible, providing accurate information as requested in the investigative process.
Please understand that due to the sensitive nature of the process, this investigation will be conducted in a manner that protects the privacy of all involved to the greatest extent possible. In order to maintain the integrity of the investigation, you are asked to refrain from discussing this investigation with your fellow employees.
If you have any questions regarding the investigative process, please feel free to contact me.
Thank you for your cooperation. Investigation Template Questions for Complainant
Date: ______
Meeting with: ______
Investigators: ______
Introduction:
Appreciate EE’s time & cooperation.
Nature of what we are investigating.
Matter under investigation is serious, and the company has a commitment/obligation to investigate this claim.
No conclusion will be made until all the facts have been gathered and analyzed.
Any attempt to influence the outcome of the investigation by discussing it with others, retaliation against anyone who participates, providing false information or failure to be forthcoming can be the basis for corrective action up to and including termination.
Questions:
• What did [the alleged harasser] do that you found to be harassing? • When did each incident occur? • Where did each incident occur? • Was anyone else present when each incident occurred? • Who else was present when each incident occurred? • Are you aware of the Agency’s policies on harassment and discrimination? • What are they? • Do you know if [the alleged harasser] was aware of the Agency’s policies on harassment and discrimination? • Did you tell anyone else about each incident? • Who else did you tell about each incident? • When did you tell each other person about the incident? • What did you tell each person about the incident? • Aside from the conduct that you are now complaining about, has [the alleged harasser] done anything else that you found to be harassing?
Page 1 of 2 • Aside from the conduct that you are now complaining about, has anyone else done anything that you found to be harassing? • How did you respond to [the alleged harasser] after each incident? • If you responded to [the alleged harasser], what did [the alleged harasser] do in response to your statements? • If you did not respond to [the alleged harasser], why not? • If you did not respond to [the alleged harasser] at the time of the incident, have you ever followed up with [the alleged harasser] to discuss the incident? • Have you ever witnessed [the alleged harasser] act in the same manner towards another employee? • Have you ever heard that [the alleged harasser] acted in the same manner towards another employee? • If so, when did the incident occur? • When did you learn of the incident? • Do you know if the incident was ever reported to a supervisor? • Has anything changed since the first incident (i.e., has anyone taken an adverse employment action against you or have you received a favorable employment action)? • What do you feel should be done to [the alleged harasser] if the alleged conduct is found to be true?
Page 2 of 2 Outline of Interview: [Name of Complainant]
Date: 01/16/2012 Time: 07:15 Location: Courthouse Administrative Offices.
Present: [Name of Complainant] [Name of Complaints Representative(s), if any] [Name of Investigator]
I. Introduction
A. Purpose of Questioning/Scope of Investigation: There has been an allegation of employee misconduct. The Court considers this to be a very serious matter. You have either indicated or it has been reported that you have witnessed such misconduct or have other relevant information. The purpose of my questioning you is to discover what you know about this situation in order to determine whether any misconduct has occurred.
B. There will be no retaliation or reprisals made against you for participating in this investigation. If you feel that you have been retaliated against for your actions, please let me or your Court HR staff know immediately. Here is my contact information.
C. I am a Labor & Employee Relations Officer with the AOC. My job is to conduct workplace investigations into allegations of harassment, discrimination and other allegations of misconduct.
1. I have been asked to provide the Court with an impartial, objective assessment of the facts of this matter. I have not made any conclusions as to what has occurred. I’m just here to gather facts and make a independent determination about what has happened.
2. In order to do my job, it is crucial that I get truthful and accurate information. I am especially looking for firsthand information. That is, I prefer to know the facts that you actually saw and heard as opposed to things others may have told you that they witnessed.
D. The information you give me will be disclosed only to those persons with a legitimate need to know the information.
E. This is not an interrogation. If you need a break – to get a glass of water or get some air – please take a break. F. I understand that investigations are stressful. We are going to try get through this interview as quickly and painlessly as possible. However, we can take as long as we need to get all the information that you may have.
G. Do you have questions before we begin?
II. Background
A. How long with the Superior Court and what was your job title?
B. Where do you normally work? What location?
C. What do you do?
D. Who is your direct supervisor?
III. The Merits [Proceed Chronologically. Begin with open-ended questions and follow-up with more detailed, fact-specific inquiries.]
A. [Name of Accused].
1. What’s going on?
2. How was working for [Accused]? It was just like working being in an abusive relationship – that’s my reference. I’ve worked in domestic violence; it’s my frame of reference. You always had to watch what you said because she could have you fired or do something. She said she could do something – like get them fired – like she could say anything and get people fired. You felt that you could not open up about who you were because she would retaliate against you.
3. Do you consider [Accused] abusive? Yes.
a. In what ways has she been abusive?
b. Were you in fact ever written up or disciplined by [Accused]? Not that I was aware of.
B. Specific Incidents:
1. Incident 1 (threats).
2. Incident 2 (profanity).
3. Incident 3 (racial jokes).
C. Raising the issue. 1. At any time prior to resigning, did you raise this issue with [the Accused’s] boss? No.
2. At any time prior to resigning, did you raise these issues with HR? No.
3. Ever trained on reporting harassment? When I was hired, I went through orientation. They must have had a segment on sexual harassment. They must have gone through it, but there was so much information. It was so long ago.
4. At any time, did you ever tell [the accused] how uncomfortable they were making you? No. Did I have to?
a. [I acknowledged that she didn’t have to, but that I needed to know if she did].
IV. Conclusion
A. Can you think of anyone else who I should talk to?
B. Anything else you want to tell me about any of the incident(s) we discussed?
C. Do you have a suggestion on how you think this matter should be resolved? The Court will do what if feels is necessary, but your input will be considered and is appreciated.
1. They need to be fired.
D. I want to remind you that I will keep this information private and only inform persons with a legitimate need to know this information. Please remember that you must do the same and keep the information you received in this interview strictly confidential. You may not discuss this investigation or related information with anyone.
E. Thank you for your time. We hope to resolve this matter quickly.
Issues/Comments/Credibility Impressions: memo
[Court Name]
To: [Recipient names] From: [Investigator’s name] CC: [Recipient names] Date: [Pick the date] Re: The Issues You Raised on [Date]
Comments:
I am sending you this memo to confirm, and to ensure that I understand, the issues you raised with me on [INSERT DATE]. At that time, you informed me that you did not receive a recent promotion and that you feel that the reason you did not receive this promotion because of your gender. The facts that you believe support your concerns include the following:
• You are the only male court clerk in a department of 12 court clerks and 3 supervising court clerks.
• You have been in the department for 5 years. During that time, you have not received a promotion.
• Your supervisor has consistently given you good performance reviews.
• You have applied 2 times unsuccessfully in the last 2 years for a vacant supervising court clerk position in the court. You believe that the employee hired on each of these previous occasions had fewer years experience than your court clerk experience and also had fewer years total experience at the court.
In our meeting you shared all of your concerns you have against the court. If I have missed something, or if you have additional concerns, please let me know immediately. I also stated that I would be investigating the concerns you raised. I further informed you that I will be impartial and fair in conducting this investigation, and that I have not yet made any conclusions as to your issues.
We also discussed what you can expect as I conduct the investigation. I will review the information and documentation that you provide me. As appropriate, I will interview memo
others to assist in addressing and resolving the issues you raised. In addition, I will strive to keep you informed of the progress of this investigation.
As we also discussed, the following are some of the court’s expectations of you:
• You are expected to cooperate fully throughout the investigation and be completely honest in answering questions and providing information to the court.
• You are expected to provide the court with all of the information and documentation that you believe may help in reviewing and addressing your concerns. You stated that you have done so. If at any time you have any additional information or documentation that you think could be relevant to your concerns, please provide it immediately.
• This is a confidential investigation. You must not discuss this investigation with any person who does not have a legitimate business need to know this information. If you any questions or concerns about this requirement at any time, please feel free to contact me.
• If you have any questions or concerns about any of these expectations, or about any part of this investigation, please contact me immediately.
Please contact me at (xxx) xxx-xxxx or by email at [email protected] if you have any questions, additional information or wish to discuss this further.
Investigation Template Questions for Witnesses
Date: ______
Meeting with: ______
Investigators: ______
Introduction:
Appreciate EE’s time & cooperation.
Nature of what we are investigating.
Matter under investigation is serious, and the company has a commitment/obligation to investigate this claim.
No conclusion will be made until all the facts have been gathered and analyzed.
Any attempt to influence the outcome of the investigation by discussing it with others, retaliation against anyone who participates, providing false information or failure to be forthcoming can be the basis for corrective action up to and including termination.
Questions:
• Do you recall an incident involving [the Complainant] and [the alleged harasser] on [date and time]? • What do you recall happened? • Did [the Complainant] respond to the conduct? • What did [the Complainant] do in response to the conduct? • Did [the alleged harasser] do anything further after [the Complainant] made his/her statement? • Have you seen this type of behavior between [the Complainant] and [the alleged harasser] before this incident? • Did you report [the alleged harasser’s] conduct to a supervisor? • If so, when did you report the conduct and to whom did you make the report? • If you did not report the conduct, why? • Are you aware of the Agency’s policies on harassment and discrimination? • What are the Agency’s policies on harassment and discrimination? • Was anyone else present during the incident? • What are the names of each person that was present during the incident? • What are the names of each person you told about the incident? • Has anything changed since the first incident (i.e., has anyone taken an adverse employment action against you or have you received a favorable employment action)?
Page 1 of 1 Investigation Template Questions for Alleged Harasser
Date: ______
Meeting with: ______
Investigators: ______
Introduction:
Appreciate EE’s time & cooperation.
Nature of what we are investigating.
Matter under investigation is serious, and the company has a commitment/obligation to investigate this claim.
No conclusion will be made until all the facts have been gathered and analyzed.
Any attempt to influence the outcome of the investigation by discussing it with others, retaliation against anyone who participates, providing false information or failure to be forthcoming can be the basis for corrective action up to and including termination.
Questions:
• Do you recall an incident involving [the Complainant] on [date and time]? • What do you recall happened? • Did [the Complainant] respond to the conduct? • What did [the Complainant] do in response to the conduct? • Are you aware of the Agency’s policies on harassment and discrimination? • What are the Agency’s policies on harassment and discrimination? • Was anyone else present during the incident? • What are the names of each person that was present during the incident?
Page 1 of 1 Outline of Interview: [Name of Complainant]
Date: 09/16/2012 Time: 07:15 Location: Courthouse Administrative Offices.
Present: [Name of Complainant] [Name of Representative(s)] [Name of Investigator]
I. Introduction
A. The AOC’s role and my job. I am a Labor & Employee Relations Officer with the AOC. My job is to conduct workplace investigations into allegations of harassment, discrimination and other allegations of misconduct, both at the AOC and at the courts.
1. I have been asked to provide the Superior Court with an impartial, objective assessment of the facts of this matter. I have not made any conclusions as to what has occurred. I’m just here to gather facts and to talk to as many people who want to talk to me who have relevant information.
2. Based on the evidence and on independent credibility determinations, I decide what I believe has happened.
a. I try to look at it as an arbitrator or ALJ might to give the Court a frank and honest opinion about how the situation would look from an outside perspective.
b. The report I generate will lay out the applicable policies and the law and then relate my assessment of the facts. It will not, however, make legal conclusions. The conclusions to draw from the report will be made by the Court with consultation from the AOC or its outside counsel if the Court wants it.
c. It also will not make a recommendation on what level of discipline, if any, to impose. Again, it is the Court’s decision on whether discipline is warranted.
B. In order to do my job, it is crucial that I get truthful and accurate information. I am looking for firsthand experiences.
C. The information you give me will be disclosed only to those persons with a legitimate business need to know the information. 1. Please remember that you must do the same and keep the information you received in this interview confidential. You may not discuss this investigation or related information with anyone who does not have a legitimate business need to know the information.
D. I also need to remind you – not because I feel you would, but because it is required – that you should not retaliate against anyone who has participated in this investigation or who has complained to the Court about your behavior.
E. This is not an interrogation. If you need a break – to get a glass of water or get some air – please take a break.
F. I understand that investigations are stressful. We are going to try get through this interview as quickly and painlessly as possible. However, we can take as long as we need.
G. Do you have questions before we begin?
II. Background
A. How long with the Superior Court and what is your job title?
1. What did you do before coming to the Court?
2. Have you ever worked in a unionized environment before?
B. Where do you normally work? What location?
C. What do you do?
D. Who is your direct supervisor?
III. The Merits
A. Prior to August 10, 2008.
1. What was your relationship with your staff like?
B. August 10th incident.
[Insert answers to questions]
IV. Conclusion
A. Can you think of anyone else who I should talk to about this matter?
B. Anything else you want to tell me about this subject matter? C. Do you have a suggestion on how you think this matter should be resolved? Obviously, the Court will do what if feels is necessary, but your input will be considered and is appreciated.
D. I want to remind you that I will keep this information private and only inform persons with a legitimate need to know this information. Please remember that you must do the same and keep the information you received in this interview confidential. You may not discuss this investigation or related information with anyone who does not have a legitimate business need to know the information.
E. I also need to remind you – not because I feel you would, but because it is required – that you should not retaliate against anyone who has participated in this investigation or who has complained to the Court about your behavior.
F. Thank you for your time. We hope to resolve this matter quickly, but it will take at least a few weeks to generate a report.
Other Issues/Comments:
INVESTIGATION OF POTENTIAL SEXUAL HARASSMENT
INTERVIEWING THE COMPLAINANT:
1. Are you aware of the company's policy regarding sexual harassment? Please explain the policy to me.
2. You have made a complaint regarding behavior by your supervisor. Please describe each incident.
3. Did you express disapproval or discontent with these actions?
4. Were there any witnesses?
5. Did you immediately tell anyone what happened?
6. Is this incident part of a series of incidents? If so, please describe the pattern.
7. In what context did the incident occur?
8. How did you react to the incident?
9. What impact did the incident have on you?
10. What is your relationship to the Accused?
11. Are you aware of other individuals (of either sex) who have received similar treatment by this individual?
12. How much time elapsed between the incident and the time you complained to someone? Who did you voice your complaint to?
13. How do you feel this situation should be resolved?
14. Describe the comments XX made on 9/17 regarding his job with CCC.
15. Describe the comments and the discussion of the performance evaluation.
16. Is there anything else I should know? INTERVIEWING THE ACCUSED:
1. Are you aware of the company's policy regarding sexual harassment? Please explain the policy to me.
2. How would you describe sexual harassment?
3. We have received a complaint accusing you of sexual harassment. (Describe in general what the Complainant said happened.) In your recollection, what do you remember as happening? (Observe physical indications as well as verbal).
4. What did you actually say, do; what was the intent?
5. What was the Complainant's reaction to what you said/did; possible Complainant motivations.
6. Were there any witnesses? Anyone you immediately described the incident to?
7. What is your relationship with the Complainant?
8. Is there or has there been any personal relationship between you and the Complainant?
9. What is your responsibility as a supervisor of this employee?
10. Do you supervise any employee? Describe your responsibilities in detail.
11. Describe the meeting with XXX on September 17.
12. Describe the performance evaluation discussion you had with XXX.
13. Describe the meeting you had with SSS on September 19.
14. Is there anything else I should know?
INTERVIEWING THE ACCUSED'S SUPERVISOR:
1. Are you aware of the company's policy regarding sexual harassment? Please describe the policy to me.
2. (If necessary, describe the complaint in general.) Has there been any behavior problem or disciplinary problems regarding the Accused?
3. How did you hear about the complaint? Describe what you were told.
4. Were you aware of any previous complaints regarding the Accused? Describe the complaints and any action you took.
5. Describe your relationship with the Complainant.
6. Describe the September 19 meeting with XX.
7. Is there anything else I should know? INTERVIEWING WITNESSES:
1. Are you aware of the company's policy regarding sexual harassment? Please describe the policy to me.
2. How would you describe sexual harassment?
3. Are you aware, directly or indirectly, of any employee of the company being sexually harassed by any other employee of the company?
4. If so, please describe what you have witnessed directly.
5. If you are not a direct witness, how do you know what you have heard?
6. What is your relationship to the Complainant?
7. Is there anything else I should know?
Example of an investigation report. All names, dates, and places are fictitious. CONFIDENTIAL REPORT OF INVESTIGATION For ______By ______[Date]
Complaint submitted by Jane Doe, dated September 15, 2008
This report is a result of concluding an investigation responding to an employee complaint. Under federal employment laws, filing a complaint with one’s employer is a protected activity, and any negative employment action, or perceived negative action, or decisions made regarding an employee who files a complaint have the potential to be considered unlawful retaliation for a protected activity.
Complaint Ms. Jane Doe submitted a letter of complaint, dated September 15, 2008, to the Human Resources Office of ______). (See attached letter.) She cited a number of Court policies in her complaint, and she alleged threatening, harassing and intimidating conduct by her supervisor, Mr. John Smith, Manager of Operations.
Methodology As Human Resources Director, I conducted the following activities: • Reviewed the complaint. • Gathered background information. • Reviewed documentation such as various personnel file documents, policy sections cited in the complaint, and an organizational chart. • Interviewed the complainant, Ms. Jane Doe. • Interviewed the employee against whom the complaint was filed, Mr. John Smith. • Interviewed a number of other employees whom we determined (from the other interviews and from the organizational chart) might be able to provide information relevant to the issues raised in the complaint.
Background Ms. Jane Doe was recently reassigned as part of a staff rotation. Doe was hired by the Court in October, 2000, as a ______; was assigned to ______; was reassigned to ______for additional training following a poor six-month performance appraisal; was promoted to ______and assigned to ______in July, 2002. Ms. Mary Anderson was head of operations at the time. Mr. John Smith was hired into the position of Manager of Operations in December, 2001. Anderson was reassigned to another position. • FINDINGS OF FACT. The following general background facts were discovered as part of the investigatory process. We deemed them to have relevance to the period of time leading up to the submission of Doe’s complaint. 2 o The Court has had an unusually high turnover rate and one of Smith’s responsibilities is to maintain turnover at an acceptable level for this type of organization. An acceptable level would be less than twenty percent, whereas turnover for the Court has been as high as forty-seven percent within the past year. o Discussions had previously taken place among management regarding the possibility of rotating staff occasionally to broaden experience levels and to provide smoother backup coverage assignments in case of vacancies and absences.
Complaint Issues and Findings of Fact ISSUE #1: • COMPLAINT ISSUE. Doe alleges a “…conspiracy…to discredit my abilities to perform…” by Smith. She claims Smith is “…tearing apart the office in an effort to look for and document anything that I have done wrong in the past.” • FINDING OF FACT. Smith is performing his duties by supporting the staff and fulfilling other tasks required by the job. As there appeared to be materials and files to be reviewed for retention and storage, he has been working on such a project. There were no corroborating interviews or physical evidence that would support an allegation of a “conspiracy to discredit” or to indicate that Smith was on a search for any discrediting information. • CONCLUSION. We find no merit to this allegation.
ISSUE #2: • COMPLAINT ISSUE. Doe alleges that Smith reassigned her because “…employees were quitting because of me.” • FINDING OF FACT. It is not an uncommon practice to reassign employees on short notice in our industry, and this particular reassignment involved rotating three employees—Doe was not the only employee reassigned. • FINDING OF FACT. With regard to the exact language used to inform Doe about the reassignment, Smith’s description of the conversation is considerably different. As there was no one else present at the meeting, we are unable to substantiate the charge. However, I find no corroborating evidence from the interviews to indicate that Smith ever is anything except courteous and professional in his conversations, and reports are that his choice of language is appropriate. • CONCLUSION. The allegation is not substantiated.
ISSUE #3: • COMPLAINT ISSUE. Doe states that since Smith started with the Court, “…the whole staff has been dissatisfied with [him]…” • FINDING OF FACT. Without exception all staff members interviewed from various locations indicate that Smith is professional, cares about the employees, listens to their concerns, and does his work in the best interests of the employees and the company. We found these employees to be very forthcoming and credible in their descriptions of their employee/employer relationship with Smith and in the examples provided. In fact, no one has ever heard Smith act in a rude way, raise his voice, or be abrasive or disrespectful in manner. Not one individual interviewed supported Doe’s description of dissatisfied, unhappy and “stressed out” employees due to their relationship with Smith. • CONCLUSION. We found no merit to this allegation.
ISSUE #4: • COMPLAINT ISSUE. Doe describes an incident in which she requested time off to attend to her mother’s emergency health situation, and she alleges that Smith threatened to demote her if she took the time off. • FINDING OF FACT. This request was made on the first day Doe reported to her new assignment. Due to shortages of staff, Doe’s absence would have caused a staffing hardship for the organization. • FINDING OF FACT. There is no substantiation for Doe’s claim of threatened demotion. Smith’s recollection of the conversation regarding this specific incident is considerably
3 different than Doe’s. He acknowledged that he had looked into Doe’s attendance record and he was concerned about what appeared to be an excessive absenteeism pattern. He indicated that although he understood the seriousness of the mother’s condition, he felt compelled to issue a caution regarding Doe’s unacceptable level of absenteeism. He stated emphatically that no comments were made regarding demotion. • FINDING OF FACT. Doe remained in her new position, and, in fact, she did take the time off. She suffered no adverse employment action as a result of her absence. • CONCLUSION. We find no merit to this allegation. • OBSERVATION. Although Smith’s conduct in this situation is in no way unacceptable or contrary to company policy or law, a more standard general management practice might have been to issue the caution, approve the time off, and schedule a future performance discussion and corrective action plan on the issue of attendance following the emergency situation.
ISSUE #5: • COMPLAINT ISSUE. Doe alleges that she has been “…harassed, humiliated, threatened and my fair rights as an employee have been violated as follows…” She then lists five Human Resource policy sections: Standards of Conduct, Harassment, Behavior of Employees, Productive Work Environment, and Confidentiality. • FINDING OF FACT. In reviewing the complaint letter as a whole, the distinct issues within it, Doe’s commentary in our interview with her, and the statements and commentary of a substantial number of co-workers, we find no substantiation for allegations made about the behavior or conduct of Smith. In fact, there is a stark difference in the characterizations of Doe’s description and the testimony of others. The conduct described by Doe appears to be totally out of character based on the credible information received in the interviews throughout the investigation. • FINDING OF FACT. The investigator requested Doe to review the various policy sections she referred to in her complaint and to identify the areas of each that she used to support her allegations of unprofessional conduct by Smith. She complied with our request by either circling or underlining individual words or phrases in the policies, words such as threatening and intimidating. There were no additional allegations of policy violation other than those already referred to in her letter of complaint. • CONCLUSION. Therefore, we conclude that there is no substantiation for the allegations made in the complaint; and we conclude that no violations of the Court’s Human Resources Policies have occurred.
SUMMARY In this particular employment action—the reassignment of employees—the action appears reasonable and warranted; and, as far as we could determine, there was no disrespectful conduct on the part of Smith. Nevertheless, Doe perceived it that way. Clearer expectations and more notice could possibly have prevented that perception.
GENERAL CONCLUSIONS We conclude that there is no substantiation to the complaint issued by Jane Doe against John Smith.
• Regarding intimidating conduct: There were no indications from any of the interviewees that Smith ever raised his voice or used intimidating or threatening types of language. The consensus of the interviewees was quite the contrary--he was described as a polite, mild-mannered individual, very respectful of employees. • Regarding a conspiracy: There were no indications whatsoever that any concerted activity took place with regard to the reassignment of employees. • Regarding specific comments made to Doe by Smith in their meetings: Smith’s recollection of the various conversations is not consistent with Doe’s recollection of them. Since no other employees were present, we cannot know for certain what exactly was said. However, there is a great deal of credible information from other employees that would lend support to Smith’s not having used any threatening or harassing language or demeanor. There is no corroboration for the type of behavior Doe has described.
4 • We are led to conclude that although Smith’s communication to Doe may have been uncomfortable for her to hear since it may have involved some criticism of her skills or conduct, there are no grounds to support the allegation of his conduct having been in any way threatening, intimidating or harassing.
RECOMMENDATIONS There are no employment actions recommended. • As the allegations against John Smith are either without merit or unsubstantiated, he should be so informed. A draft communication from the CEO to Mr. Smith is attached. A copy of the communication should be placed in Mr. Smith’s personnel file if Mr. Smith desires. If not, a copy of the letter will remain part of the investigation file only. • As the complaint from Jane Doe was filed in accordance with THE COURT policy, and as it was serious in its allegations, there is no issue of a frivolous complaint. Ms. Doe should be informed of the results of the investigation, and a draft communication from the CEO to her is attached. A copy of the communication should be placed in Ms. Doe’s personnel file if she desires. If not, a copy of the letter will remain part of the investigation file only. • As filing a complaint and cooperating in the investigation of a complaint are protected activities under federal employment law, any adverse employment action against any participant may be considered retaliation and is unlawful.
THIS REPORT IS CONFIDENTIAL AND SHOULD BE SEALED AND FILED AS A SEPARATE AND SECURED PERSONNEL INVESTIGATION REPORT IN THE HUMAN RESOURCES OFFICE. IT SHOULD NOT BE SHARED WITH ANYONE WITHOUT A LEGAL NEED TO KNOW, i.e., CEO, HUMAN RESOURCES OFFICER, BY COURT ORDER. COPIES OF IT SHOULD NOT BE DISTRIBUTED TO ANYONE INVOLVED IN THE INVESTIGATION, AND IT SHOULD NOT BE PLACED IN ANY EMPLOYEE’S PERSONNEL FILE.
Respectfully submitted: Jeanne Ganas, SPHR
Attachments: • Letter of complaint from Jane Doe, dated September 15, 2002. • Draft of recommended response letter from CEO to Jane Doe, initiator of complaint. • Draft of recommended response letter from CEO to John Smith, subject of complaint.
DATE
REPORT RECIPIENT
Re: Report of Investigation Into Complaints of COMPLAINING PARTY
Dear REPORT RECIPIENT:
This letter is the report of my investigation into the above-referenced complaints.
I. Introduction
INTRODUCE FACTS RE HOW COMPLAINT WAS FIRST CONVEYED. IF WRITTEN COMPLAINT WAS MADE, ATTACH AS AN EXHIBIT.
SUMMARIZE HOW THIS PARTICULAR INVESTIGATOR WAS RETAINED.
II. Witnesses Interviewed
I interviewed the following witnesses on the date(s) and locations indicated below:
- NAME DATE, TIME JOB TITLE LOCATION - UNIT, DIVISION ADD MORE ENTRIES IF ENGAGED IN FOLLOW-UP INTERVIEWS
III. Factual Background
INCLUDE HERE ANY RELEVANT BACKGROUND INFORMATION ON THE COMPLAINANT AND RESPONDENT. E.G., HOW LONG WORKED IN WHAT POSITION, IN WHAT UNIT OR DIVISION, REPORTING TO WHOM, ETC. MAY WISH TO INCLUDE ORGANIZATIONAL CHART HERE AS EXHIBIT.
IV. Summary of My Findings
Applying a “preponderance of the evidence” standard (i.e., it is more likely than not that “X” has occurred”) I find that ______. PROVIDE SHORT EXECUTIVE SUMMARY.
REPORT RECIPIENT Re: Report of Investigation Into Complaint of COMPLAINANT DATE Page 2
V. Allegations Investigated and Factual Findings Reached
A. ALLEGATION CATEGORY NO. 1 (VERBAL COMMENTS)
1. Alleged comments by RESPONDENT ABOUT “X”
a. Reports of COMPLAINANT
DETAIL COMPLAINANT’s ALLEGATIONS
b. Reports of Other Witnesses
DESCRIBE ADDITIONAL CORROBORATING REPORTS
c. Response of RESPONDENT
DETAIL RESPONDENT’s ADMISSIONS OR DENIALS
d. My Findings
INCLUDING DETAILED FINDINGS
2. Alleged comment by RESPONDENT ABOUT “Y”.
B. ALLEGATION CATEGORY NO. 2 (UNWANTED TOUCHINGS)
C. ALLEGATION CATEGORY NO. 3 (RETALIATION)
VI. Other Issues
A. Alleged Motives of Complainants and Witnesses
DETAIL POTENTIAL BIASES
B. Credibility Assessment
Set forth below are credibility issues I found particularly noteworthy. I have not attempted to summarize the credibility of every witness interviewed.
REPORT RECIPIENT Re: Report of Investigation Into Complaint of COMPLAINANT DATE Page 3
1. Complainant
Overall, I found/did not find Complainant credible. EXPLAIN WHY OR WHY NOT. E.G., DIDN’T DIRECTLY ANSWER QUESTIONS, OFFERED WHAT APPEAR TO BE FALSEHOODS, ANSWERS THAT WERE NOT CREDIBLE, WROTE CONTEMPORANEOUS NOTES ABOUT EVENTS, OTHER WITNESSES CORROBORATED HIM, ETC.
2. Respondent
SAME AS ABOVE.
3. Key Witness
SAME AS ABOVE.
Please let me know if you have any questions about this report.
Very truly yours,
INVESTIGATOR
SLG/mt
Enclosures
Electronic and First Class Mail
455 Golden Gate Avenue . San Francisco, California 94102-3688 Telephone 415-865-4200 . Fax 415-865-4205 . TDD 415-865-4272
MEMORANDUM
Date Action Requested October 1, 2012 Please Review
To Deadline ______, N/A Court Executive Officer, Superior Court of California, Contact County of Anderson Mr. Jason M. Mayo 415-865-8867 phone From 415-865-8873 fax Jason M. Mayo, [email protected] Labor and Employee Relations Officer, AOC Human Resources
Subject Carter Investigation (CONFIDENTIAL)
Below is the report of the AOC Labor and Employee Relations Unit’s investigation into the allegations that a Deputy Court Clerk, Felicia Carter, knowingly submitted a false document for filing with the Superior Court of California, County of Anderson (Court).
I. Introduction
Ms. Carter’s coworkers claim she admitted offering a document for filing with the Court that she knew contained false information. The document in question is the Community Service Referral Agreement (CSR Agreement) she submitted on behalf of her husband, John Carter. A copy of the CSR Agreement, filed March 29, 2008, is attached as Exhibit A. Both before and after giving the CSR Agreement for filing to Dawn Saunders, a Senior Clerk, Ms. Carter allegedly confided to several Court employees that her husband had paid a $50 bribe to have an employee of a community service provider, Project Transitions, Inc. (Project Transitions), execute a falsified CSR Agreement. In sum, the CSR Agreement falsely verified community service hours that Mr. Carter never actually worked. Carter Investigation (CONFIDENTIAL) October 1, 2007 Page 2
After the bribery matter was brought to the attention of the Court, the Court requested that the AOC Labor and Employee Relations unit conduct an internal administrative investigation into the allegation of employee misconduct. In order to avoid interference with the external criminal investigation against Mr. and Ms. Carter and Project Transitions, the AOC postponed its internal investigation until it was informed that the criminal investigation had concluded and that the individuals involved would not face prosecution based on the evidence currently available.
II. Investigation
The AOC interviewed the following witnesses on the date(s) and location(s) indicated below:
Saunders, Dawn 08/14/07 - 1130 Senior Court Clerk Anderson County Public Works Bldg, Conf. Room 305 Mesa Street, Elkhart, CA 20822 Sanchez, Carlos 08/14/07 - 1330 Detective, Elkhart Police Dep’t. Elkhart Police Department 412 W. Crockett Street, Elkhart, CA 20822 Carter, Felicia 08/14/07 - 1505 Deputy Court Clerk II Anderson County Public Works Bldg, Conf. Room 305 Mesa Street, Elkhart, CA 20822 Lewis, Greg1 Attorney Cox, Jennifer 08/15/07 - 1130 Deputy Court Clerk II Anderson County Public Works Bldg, Conf. Room 305 Mesa Street, Elkhart, CA 20822 Brown, Susan 08/15/07 - 1328 Deputy Court Clerk II Anderson County Public Works Bldg, Conf. Room 305 Mesa Street, Elkhart, CA 20822 Caruthers, Carol 08/15/07 - 1430 Deputy Court Clerk III Anderson County Public Works Bldg, Conf. Room 305 Mesa Street, Elkhart, CA 20822 Tiza, Dot 08/15/07 - 1531 Deputy Court Clerk III Anderson County Public Works Bldg, Conf. Room 305 Mesa Street, Elkhart, CA 20822
III. Background Facts
Felicia Carter is a Deputy Court Clerk II serving the Court in the office of Clerk of the Criminal Division, Elkhart Branch. She has been employed by the Court for approximately five years, serving in both the Court’s Cayuga and Elkhart offices. Recently, Ms. Carter applied for a
1 Mr. Lewis also represented Mr. Carter in his criminal matter. Carter Investigation (CONFIDENTIAL) October 1, 2007 Page 3 promotion to Deputy Court Clerk III. She has been with the Elkhart Branch for several years, and has no record of discipline.
Dawn Saunders (Senior Clerk), Carol Caruthers (Deputy Court Clerk III), Dot Tiza (Deputy Court Clerk III), and Susan Brown (Deputy Court Clerk II) are some of Ms. Carter’s colleagues in the Elkhart Branch Criminal Division. Jennifer Cox (Deputy Court Clerk II) is employed by the Court in the office of the Clerk of the Civil/Juvenile Division, Elkhart Branch.
IV. Relevant Terms, Rules & Policies
Ms. Carter is represented by the Anderson County Employees Association, AFSCME (Union).2 Her terms of employment are governed by the Memorandum of Understanding (“MOU”) currently in effect between the Court and the Union, and the Court’s Personnel Manual, established via meet and confer with the Union. Relevant portions of the MOU are attached as Exhibit B; relevant excerpts of the Personnel Manual are attached as Exhibit C.
Under the MOU, as a “regular employee” of the Court, Ms. Carter has “an expectation of continued employment unless there is ‘good cause’ for termination.” Ex. B., § 2 “General Provisions – Definitions.” This “good cause” requirement is also reflected within the Court Personnel Manual’s policy on employee discipline. The discipline policy notes that “discipline, up to and including termination, shall be for cause.” Ex. C, “Discipline and Discharge Procedures,” Tab 9. “For the purposes of the Court’s policy, ‘for cause’ shall have the same meaning as set forth in [California] Government Code section 71651(b).” Ex. C. Under this code section, “‘for cause’ means a fair and honest cause or reason, regulated by good faith on the part of the party exercising the power.” Cal. Gov. Code § 71651(b).
The Personnel Manual goes on to note that “[f]alsifying or making a material omission on a Court document (e.g., time card, Court records)” and “[v]iolation of any Court rule, policy or procedure” are examples of misconduct that could result in discipline, up to and including termination. Ex. C. While ordinarily the Court will use progressive discipline, the Court reserves the right to deviate from progressive discipline when the circumstances warrant. Ex. C.
In addition to outlining general disciplinary rules and procedures, the Personnel Manual also contains other proscriptions. “No employee shall engage in any activity that is inconsistent, incompatible, in conflict with or inimical to his or her duties as an employee of the court or with the duties, function or responsibilities of the court.” Ex. C “Conflicts of Interest and Incompatible Activities,” Tab 7. “No employee shall engage in any activity that would impair the employee’s independent judgment in the performance of his or her duties, or which would have the appearance of doing so.” Ex. C. Finally, “[e]mployees shall not process, handle, or in any manner be involved with any case filed in the court in which a relative or friend of the
2 The Court and the AOC informed the Union of its pending investigatory meeting with Ms. Carter. Ms. Carter opted to be represented at this meeting with her legal counsel rather than a representative of the Union.
Carter Investigation (CONFIDENTIAL) October 1, 2007 Page 4 employee is a party, alleged victim, or witness.” Ex. C. “[T]he term ‘relative’ includes the employee’s spouse . . . .” Ex. C. 3
Lastly, the Code of Ethics for the Court Employees of California contain several tenets that are applicable to the circumstances of this investigation. A copy of the Code of Ethics is attached as Exhibit D.4 All court employees are required to “[d]emonstrate the highest standards or personal integrity, honesty, and truthfulness in all . . . professional and personal dealings, avoiding the misuse of court time, equipment, supplies, or facilities for personal business.” Ex. D, Tenet Two. All employees are also expected to avoid breaking the law and “avoid any appearance of impropriety that might diminish the honor and dignity of the court.” Ex. D, Tenets Five and Six. Court employees must “[f]urnish accurate information as requested in a competent, cooperative, and timely manner.” Ex. D, Tenet Eight.
The guidelines to the Code of Ethics emphasizes that honesty and truthfulness are of paramount importance. Ex. D, Tenet Two Guideline. While court employees are not charged with regulating the conduct of others, they are required to “conduct themselves in a manner that inspires public confidence in the role they play in the pursuit of justice.” Ex. D, Tenet Five Guideline. “Proper conduct involves daily and scrupulous affirmation of moral principles and observance of all laws, rules, policies, and procedures.” Ex. D, Tenet Five Guideline. The ethical behavior expected of court employees is higher than that expected of members of the general public, and court employee must avoid even the mere appearance of impropriety. Ex. D, Tenet Six Guideline.
Finally, it is a felony in the state of California to “knowingly procure[] or offer any false or forged instrument to be filed . . . in any public office of this state.” Cal. Pen. Code § 115(a).
V. Summary of Findings
The AOC concludes that Ms. Carter informed various Court employees that her husband was planning to pay a $50 bribe to an employee of Project Transitions in exchange for that employee signing off on her husband’s community service hours without requiring that the hours actually be worked. It is undisputed that Ms. Carter couriered the CSR Agreement back and forth between the Court and her husband, ultimately offering the Agreement to Dawn Saunders, the Senior Clerk, for filing. Although she attempted to minimize her role in her husband’s fraud upon the Court, we have concluded that Ms. Carter knew that her husband had not actually
3 The Personnel Manual’s prohibition on employee involvement in the court case of a relative or friend was given a special procedural application in Mr. Carter’s criminal case. Given the nature of the allegations and her desire to keep the information confidential, the Court Manager, Diane Simmons, maintained his file and instructed her staff that only she would accept documents for filing in the matter. In the event that she was away from the office, Ms. Simmons authorized the Senior Clerk, Dawn Saunders, to accept the filing. During her interview in this investigation, Ms. Carter acknowledged that she was aware of this special procedure.
4 The Code of Ethics was adopted by the Court and is applicable to all Court employees pursuant to Local Rule 2.09, attached as Exhibit E. Carter Investigation (CONFIDENTIAL) October 1, 2007 Page 5 completed his community service requirement when she provided the Agreement to Ms. Saunders for filing, and thus she knowingly offered a false document to the Court for filing.
VI. Statement of Undisputed Facts
On April 19, 2006, John Carter, the husband of Felicia Carter, was cited for driving under the influence of alcohol. Shortly after her husband’s arrest, Ms. Carter vented to her coworkers in the office of the Clerk of the Criminal Division about her husband’s legal problems. Many noted that she was extremely upset and angry with her husband, and she informed several colleagues that she was not going to pay any fines as a result of Mr. Carter’s arrest. At the time, she indicated he was going to have to serve his time, perform community service and sell his motorbike in order to satisfy whatever judgment was made against him.5
On August 15, 2006, Mr. Carter entered into a pretrial settlement agreement. He pled guilty and was ordered to complete 248 hours of community service by February 13, 2007, in lieu of paying a fine of $1,733.
Over the course of the next several months, Mr. Carter requested referrals to multiple agencies but was unable to get his community services hours completed by the judge’s February deadline. On February 13, 2007, a judge granted Mr. Carter’s request for a continuance to complete his hours. He was given until April 17, 2007, to finish his community service requirement.
A week later, on February 21, 2007, Mr. Carter phoned the Court and requested that he be allowed to perform his community service at Project Transitions.6 That same day, Dawn Saunders filled out the CSR Agreement form referring Mr. Carter to Project Transitions. As requested by Mr. Carter, she gave the form to Ms. Carter to give to her husband. Ms. Carter took the form, filled in the address of the home she shared with her husband and gave the form to him. Later, on March 5, 2007, Mr. Carter called the clerk’s office and asked Ms. Saunders for directions to Project Transitions.
During this same time period, Ms. Carter had informed her colleagues – Ms. Saunders, Ms. Tiza, Ms. Caruthers and Ms. Cox – that an unnamed Project Transitions employee had offered Mr. Carter the opportunity to participate in a bribery scheme: the employee would falsely sign her husband’s CSR Agreement verifying completion of the required work hours in exchange for $50. She advised her colleagues that her husband was planning to accept the offer. Ms. Carter, while acknowledging that her husband was an “idiot” for planning to pay the bribe, also rhetorically asked her colleagues, “What defendant wouldn’t accept that offer?”
5 Ms. Carter regularly discussed her marital issues and her husband’s legal problems either in the clerk’s office or during her breaks. Prior to this incident, Ms. Carter would frequently take smoking breaks with Ms. Saunders, Ms. Tiza and Ms. Caruthers.
6 According to its profile posted with the Anderson County Library, Project Transitions is a transitional housing and support group for adult men with barriers to self sufficiency. Carter Investigation (CONFIDENTIAL) October 1, 2007 Page 6
On March 29, 2007, Ms. Carter offered the completed CSR Agreement to Ms. Saunders for filing. Ex. A. The completed form indicates that a representative of Project Transitions, Sal Dean, signed off on the CSR Agreement on March 8, 2007, a mere three days after Ms. Saunders provided Mr. Carter directions to Project Transitions. Mr. Dean indicated that Mr. Carter had completed 252 hours of community service with Project Transitions, starting on August 22, 2006, and completing his community service requirement on March 8, 2007. Ex. A.
Ms. Saunders became upset with Ms. Carter because it was evident that the hours on the form were not accurate. As noted above, Mr. Carter was not assigned to Project Transitions until February 21, 2007, so he could not have worked for Project Transitions from August 22, 2006 as indicated by Mr. Dean. Nor was it likely that he otherwise completed 248 hours of community service between February 21, 2007, and March 8, 2007.7 As indicated by his request to Ms. Saunders for directions, he did not even know where the agency was located until three days prior to Mr. Dean signing the CSR Agreement.
When Ms. Carter gave her the form, Ms. Saunders noted the form was likely not accurate and warned Ms. Carter that the hours would be verified. Ms. Carter declined to accept responsibility for the contents of the form. She informed Ms. Saunders that it was her husband’s “deal.” Finally, Ms. Saunders indicated to Ms. Carter that Mr. Carter had failed to sign the CSR Agreement. She made a copy for Ms. Carter to give to her husband for his signature. Ms. Saunders then accepted the unsigned CSR Agreement for filing.8
That same day, Ms. Saunders attempted to verify the hours with Project Transitions and was unable to locate anyone who could confirm that Mr. Carter worked the hours indicated on the CSR Agreement. Troubled by the document, she contacted the Court’s presiding judge and notified him of her concerns about the form. When the presiding judge learned that Mr. Carter was the spouse of a Court employee, he told Ms. Saunders to raise the issue with the Court Executive Officer.
Ms. Saunders talked with the CEO that afternoon. While she told him that she suspected that the CSR Agreement was false, she did not inform him of her suspicions that Mr. Carter had paid a bribe to have the hours completed nor did she inform him that Ms. Carter was aware of this fact. Based on his conversation with Ms. Saunders, the CEO arranged for a visiting judge to hold a hearing to determine whether Mr. Carter completed his community service hours.
Both before and at that hearing, Mr. Carter’s attorney, Greg Lewis, attempted to explain why there was a discrepancy between the dates of service on the filed CSR Agreement and the date
7 There are sixteen (16) calendar days between February 21 and March 8, 2007. Mr. Carter would have been required to average 15.5 hours per day for all of those days, including weekends, to reach 248 hours.
8 To date, no signed copy of the CSR Agreement has been filed. According to Ms. Saunders, it is not uncommon for the Court to file an incomplete CSR Agreement and follow-up with the defendant to obtain a complete, signed copy.
Carter Investigation (CONFIDENTIAL) October 1, 2007 Page 7
Mr. Carter was actually referred to Project Transitions. Mr. Lewis submitted an affidavit by Sean Young, a supervisor at Project Transitions, that claimed the CSR Agreement erroneously credited Mr. Carter hours that were worked by another community service worker who had the same first name as Mr. Carter. The affidavit also claimed that Mr. Carter completed his required hours by working several hours each day between February 22, 2007, and March 26, 2007.9 Mr. Young’s affidavit noted that he recalled Mr. Carter telling him that he was experiencing a lull in work from his employer and that he was able to work longer community service hours during this brief time period. Mr. Young also claimed that Project Transitions had “misplaced” Mr. Carter’s original work hours slip and could not provide independent documentation that he had worked the hours or identify exactly what hours he had worked.
The visiting judge ordered Mr. Carter, Mr. Young and Mr. Dean to appear in court on June 7, 2007. Ultimately, he did not credit their explanation of the CSR Agreement. At the hearing on this matter, at which Ms. Saunders also testified, the judge gave Mr. Carter credit for only 24 hours of community service worked. The judge ordered Mr. Carter to perform 224 hours at another specified community service agency.
Troubled that the criminal hearing did not reveal the bribery scheme, Ms. Saunders, Ms. Tiza, and Ms. Caruthers consulted with each other and decided to independently go to the CEO. On or about June 7, 2007, each clerk went to him and told him that Ms. Carter had told them at various times that her husband intended to pay or had paid $50 to an employee of Project Transitions to falsely verify his community service hours and that Ms. Carter was aware of this fact at that time that she offered the CSR Agreement for filing. This was the first instance in which the Court CEO became aware of the bribery scheme.
On Monday, June 11, 2007, the CEO contacted the Elkhart Police Department to report this matter. Detective Carlos Sanchez was assigned to investigate the matter. Detective Sanchez interviewed Ms. Saunders, Ms. Tiza, Ms. Caruthers, and another court employee, Jennifer Cox. He also spoke with Mr. Young.10 Det. Sanchez discovered that the Court had no record of another community service worker assigned to Project Transitions between August 2006 and March 2007 with the same first name as Mr. Carter. In addition, the detective disproved the prior assertion that Mr. Carter was not working full time between February 22, 2007, and March 26, 2007. He contacted Mr. Carter’s employer, ACME Plumbing, and obtained Mr. Carter’s time cards for this period. These indicate that Mr. Carter worked approximately 40 hours per week during the same time period that Mr. Carter claimed he was allegedly performing his 248 hours of community service.
The Elkhart Police Department completed its investigation and submitted this matter to the local district attorney’s office on August 3, 2007. At the time of this report, the district attorney has not filed any charges against Mr. or Ms. Carter or the Project Transitions representatives.
9 This represents 7.75 hours of community service per day working every day over the course of 32 days.
10 Mr. and Ms. Carter declined to participate in the criminal investigation. Carter Investigation (CONFIDENTIAL) October 1, 2007 Page 8
VII. Allegations Investigated and Factual Findings Reached
Allegation. Ms. Carter offered a document for filing with the Court that she knew or should have known contained false information.
1. Reports of Complainants and Related Facts.
Ms. Saunders claims that, prior to Mr. Carter’s August 2006 DUI conviction, Ms. Carter mentioned that Project Transitions was accepting bribes in exchange for signing off on community service referral agreements. According to Ms. Saunders, Ms. Carter mentioned that her friend, Chaz Eastman, had confided in her that he had participated in this bribery scheme. At the time she mentioned this, Ms. Saunders claims Ms. Carter appeared upset that Mr. Eastman would participate in the scheme.
After his DUI conviction and around the time he requested a referral to Project Transitions on February 21, 2007, Ms. Carter told Ms. Saunders and Ms. Tiza that her husband intended to pay $50 to a Project Transitions employee instead of performing his community service requirement. This conversation occurred while the three women were taking a smoking break. According to Ms. Tiza, Ms. Carter appeared angry at her husband for planning to do this. Ms. Saunders and Ms. Tiza warned Ms. Carter not to let her husband go through with the plan.
A short while later, Ms. Carter went to a local bowling alley where Ms. Tiza and Ms. Cox were playing in a league game. During the game, Ms. Carter again mentioned the bribe that her husband was planning to pay and expressed her anger towards him.
On March 29, 2007, Ms. Carter offered the CSR Agreement to Ms. Saunders for filing. Ms. Saunders became upset. She confronted Ms. Carter with the erroneous form. Ms. Saunders indicated to Ms. Carter that she should not submit the form, and she voiced her displeasure at being involved in the matter. Ms. Carter responded calmly and reiterated that it was her husband’s “deal.” Ms. Saunders also indicated to Ms. Carter that Mr. Carter had failed to sign the CSR Agreement. She gave Ms. Carter a copy of it for her to give to her husband to sign.
That same day, in addition to reporting the suspicious nature of the CSR Agreement to both the presiding judge and the CEO, Ms. Saunders overheard Ms. Carter stewing at her desk about the errors on the CSR Agreement. According to Ms. Saunders, Ms. Carter was upset that her husband was likely going to have to pay another $50 to have the Project Transitions employee correct the CSR Agreement with more plausible dates and hours.
That evening, Ms. Carter telephoned Ms. Caruthers. According to Ms. Caruthers, Ms. Carter was in a “panic” because she had turned in the CSR Agreement and was concerned that she should not have. During this phone call, Ms. Carter confided that her husband had not completed his community service hours and that he had paid the $50 bribe instead. Ms. Carter asked Ms. Caruthers for her opinion as to how bad the situation was. Ms. Caruthers informed Carter Investigation (CONFIDENTIAL) October 1, 2007 Page 9 her that the situation appeared bad and that Ms. Carter should not have had anything to do with the CSR Agreement.
2. Response of Accused.
While she acknowledges that she knows Mr. Eastman, Ms. Carter denies talking to Ms. Saunders about him, his community service or Project Transitions. Ms. Carter denies having any prior knowledge that Project Transitions was noted for accepting bribes in lieu of community service.
Ms. Carter admits that she talked about the bribery scheme to her colleagues during a smoking break and again when Ms. Tiza and Ms. Cox were bowling. However, she denies that she ever indicated to her colleagues that her husband intended to pay, or had already paid, $50 to a Project Transitions employee in lieu of performing his community service. According to Ms. Carter, she insists that she informed her colleagues merely that a Project Transitions employee had offered her husband the opportunity to pay instead of performing the community service. She also emphasizes that she told them that he was an “idiot” for even considering the notion. She also concedes that she rhetorically asked her colleagues, “Who wouldn’t take that offer?”
Ms. Carter claims that that is where she left the issue. She alleges that, despite living with her husband during this period of time, she does not know whether he took the employee up on this offer or whether he actually performed the community service. When asked if she believed her husband was capable of participating in the scheme, Ms. Carter claimed that she “honestly” did not know. She is adamant that she did not give her husband the $50 to pay the bribe nor is the money missing from her checking account.
Finally, Ms. Carter readily acknowledges that she couriered the CSR Agreement between the Court and her husband. She recognizes that she should not have handled the document. However, she claims that she did not look at the CSR Agreement after her husband told her that he had completed his hours and asker her to submit the form for him. She claims she did not review the document’s contents prior to handing the form to Ms. Saunders.
When she gave the form to Ms. Saunders on March 29, 2007, she recalls Ms. Saunders being upset. She claims that Ms. Saunders asked, “What the fuck is this?” However, she denies that Ms. Saunders requested that she take the form back or warned her that the hours would have to be verified. Ms. Carter also remembers that Ms. Saunders pointed out that the CSR Agreement was not signed by Mr. Carter, but she claims that Ms. Saunders did not ask her to have her husband sign a copy.
3. Other Witnesses.
Ms. Saunders and Ms. Tiza support each other’s contention that, prior to March 29, 2007, Ms. Carter told them during a smoking break that her husband was planning to pay $50 in lieu of performing his community service. Both indicated that Ms. Carter was angry at her husband for even considering this plot. Subsequently, Ms. Carter informed Ms. Tiza and Ms. Cox of this Carter Investigation (CONFIDENTIAL) October 1, 2007 Page 10 situation again, although both witnesses were preoccupied with their bowling at the time and did not pay attention to Ms. Carter’s comments.
Susan Brown was working at the counter when Ms. Carter offered the CSR Agreement to Ms. Saunders. She remembers that Ms. Saunders was unhappy at being offered the form for filing. Ms. Brown recalls that Ms. Carter, by comparison, seemed calm.
4. Findings.
Mr. Carter had not completed his community service requirement as he claimed when he asked his wife to file his CSR Agreement for him. When she took the form from her husband, Ms. Carter was aware that a Project Transitions employee offered to accept $50 from her husband in exchange for signing off on his community service requirement. She did not report this request for a bribe to the Court. Instead, she couriered the CSR Agreement from the Court to her husband on February 21, 2007, and she offered the completed form for filing on her husband’s behalf slightly more than a month later.
Based on the available evidence, it is the opinion of the AOC investigator that Ms. Carter knew or should have known that the CSR Agreement she offered to the Court contained information that was false. In other words, she knew that her husband had likely paid a bribe to the community service organization rather than perform the actual work himself. She nevertheless submitted the form for him. In her interview, she even conceded that she believed that any criminal defendant would jump at the offer made to her husband. Knowing these facts, it is simply not credible that she did not review the completed CSR Agreement prior to offering it to Ms. Saunders as she claims. Even a cursory review would have alerted her to the fact that her husband was credited for hours worked prior to his referral to Project Transitions. The only reason for her not to examine the document would be to give herself plausible deniability that she knew the document contained false information.
The AOC credits Ms. Saunders’s testimony that she brought the suspicious nature of the CSR Agreement immediately to Ms. Carter’s attention and that Ms. Carter refused to accept any responsibility for the form.
As to the other clerks in the criminal division, Ms. Saunders, Ms. Tiza and Ms. Caruthers were all aware by March 29, 2007, that Project Transitions had likely accepted money from Mr. Carter in exchange for signing off on his community service hours. However, none of these clerks brought this scheme to the attention of the Court at that time. Instead, they relied on the criminal process to reveal the facts of the bribe. These clerks only brought the matter to the Court’s attention on or about June 7, 2007, after the hearing on Mr. Carter’s community service hours failed to bring the bribery issue to light until ten weeks after they knew about the issue.
Carter Investigation (CONFIDENTIAL) October 1, 2007 Page 11
VIII. Possible Motives/Credibility Assessments
A. Dawn Saunders, Dot Tiza and Carol Caruthers. Despite the presence of a general animus against Ms. Carter, the AOC finds credible the recounting of the facts of this case of Ms. Saunders, Ms. Tiza and Ms. Caruthers.
Ms. Carter’s colleagues in the criminal division claim they have been have distancing themselves from Ms. Carter since before this incident occurred. In their own words, they have been politely freezing her out of their group, i.e., failing to invite her to lunch or include her on smoking breaks. When asked what triggered this ostracism, none of the clerks articulated a singular incident that prompted this response. Instead, they claim that they collectively tired of Ms. Carter’s generally “trashy” behavior and overall lack of professionalism and tact. While denying that they personally dislike her, they believe Ms. Carter behaves poorly, and they do not wish to be associated with her behavior. They deny that their ostracism is related to the recent incident regarding the false CSR Agreement of Ms. Carter’s husband.
The investigation did not reveal that any of these clerks specifically sought to get Ms. Carter’s in trouble. Nor is it clear that Ms. Carter’s request for promotion to Court Clerk III would motivate these workers to oppose her advancement in some way. It appears that Ms. Carter’s request for promotion would merely be a change in classification for her. Should she receive it, she would not displace any of the workers who have made allegations against her or interfere with their work schedules or incomes.
Rather, it appears that Ms. Tiza, Ms. Caruthers and Ms. Saunders dislike Ms. Carter’s general behavior, her overuse of profane language, and her combative attitude. However, the timing of the group’s exclusion of Ms. Carter is odd, since they have worked with Ms. Carter for approximately two years, and yet they claim that they have only recently been distancing themselves from her.
Others familiar with the group also noted this recent change. Ms. Cox agreed that the group’s distancing from Ms. Carter has been occurring for a while, but she believes it became more concrete because of the CSR Agreement issue. Ms. Brown first noticed that Ms. Saunders, Ms. Tiza and Ms. Caruthers began to isolate themselves from Ms. Carter after Ms. Carter submitted the CSR Agreement. For her part, Ms. Carter believes that the other clerks’ ostracism is a direct result of the criminal investigation into the allegation that she filed a false document with the Court.
Ms. Saunders, Ms. Caruthers and Ms. Tiza all recall Ms. Carter informing them that her husband was going to pay or had already paid a bribe in lieu of performing his community service. None of them, with the exception of Ms. Carter Investigation (CONFIDENTIAL) October 1, 2007 Page 12
Caruthers, could recall the specific date of Ms. Carter’s statement. All of them had to rely on paraphrasing the content of the communication. In addition, all three employees talked about this issue amongst themselves on numerous occasions since the CSR Agreement was filed. It is highly likely that their accounts on this topic have become intertwined. In recounting the incidents, their stories contained similar phrases that could be the result of repetition amongst them.
It should also be noted that the conduct of Ms. Tiza and Ms. Caruthers had recently been under investigation at the time that they came forward and implicated Ms. Carter. During the investigation into their conduct, the AOC concluded that Ms. Tiza’s and Ms. Caruthers’s versions of events related to their earlier conduct were not credible. It is possible, although not established, that they were attempting to distract the Court from the allegations against them by creating allegations against Ms. Carter. However, based on the facts uncovered in this investigation, the allegations against Ms. Carter have independent merit.
In sum, despite this motive to distract the Court, the vagueness of their accounts and the fact that they have talked amongst themselves, the AOC finds Ms. Saunders, Ms. Tiza and Ms. Caruthers’s statements related to this matter to be credible. Specifically, there is no evidence that they conspired to harm Ms. Carter’s career or to interfere with her promotion.
B. Felicia Carter. Ms. Carter is motivated by self-preservation. She wants to keep her job, and she realizes that she underestimated the magnitude of the appearance of the conflict of interest created by her handling her husband’s CSR Agreement.
Although she feels targeted by the other clerks – notably Ms. Saunders, Ms. Tiza, Ms. Caruthers and Ms. Brown – she has no idea why her colleagues turned against her or would otherwise be out to get her.
Ms. Carter’s version of events is not credible. She was angry and defensive during the entire interview in this matter. While she certainly may have convinced herself that she merely informed her colleagues that her husband was only offered an opportunity to pay a bribe, it is not credible that she was unaware that her husband leapt at this opportunity. On the contrary, she knew that it was likely. She was living with her husband and knew that he was maintaining a regular job during the relevant time, and she couriered the specific Project Transitions CSR Agreement between him and the Court. For her to be wholly unaware of the situation, she would have had to believe him when he claimed he worked 248 hours of community service within 32 days while additionally working approximately 40 hours a week for his employer (and presumably being paid for that time). For her to claim that she did not “know” that her husband had Carter Investigation (CONFIDENTIAL) October 1, 2007 Page 13
paid a bribe is unlikely. At the very least, she was willing to turn a blind eye to his behavior in order to avoid the financial penalties.
The most likely scenario is that Ms. Carter was unhappy with her husband’s criminal behavior and conviction, but was willing to allow her husband to pay the bribe so long as he avoided having to pay the fines associated with his DUI conviction.
C. Jennifer Cox. The AOC investigator finds that Ms. Cox is a credible witness. She fully emphasized the limitations of her recollection regarding Ms. Carter’s statements about the bribery scheme. However, because her recollection of the incident is so vague, her account holds little evidentiary weight.
* * * * *
Please let me know if you have any questions about this report.
Very truly yours,
Jason M. Mayo
Attachments
Twelve (12) Common Writing Errors in Investigative Reports
Error #1 – Vague adjectives and adverbs
Ms. Washington lied about everything. While she has hazy explanations for everything, the information doesn’t pan out. Ms. Washington lied when she requested bereavement leave and she kept lying repeatedly during the whole investigation. When questioned, Ms. Washington became aggressive and hostile.
Error #2 – Use of he, she and it:
While she was in her office, she called the Human Resources Manager, to verify that she could use bereavement leave and to ask if it could be taken in less than full day increments. She told her she would research the question and call her back when she had the answer. She returned to her desk, presumably to wait until she received the call from Ms. Morgan.
Error #3 – Long, complex sentences
Ms. Washington called in on April 28, 2010 and said she would be off the remainder of the week, but could come in that day or on Friday, but not April 29, because that was the day of the funeral and Ms. Montgomery knew Ms. Washington was out of town and did not require her to come in and said she would need to provide proof of her marriage and proof of a death in the family, to substantiate her request for bereavement leave. She further advised Ms. Washington to contact Human Resources and bring her personal information up to date. Ms. Washington said she would do so.
Error #4 – Making recommendations that are not findings
Starting immediately, all employees should be required to bring in a death certificate to support any request for bereavement leave.
Error #5 – Drawing legal conclusions
Ms. Washington committed payroll fraud when she said she needed bereavement leave because her husband’s mother died. Error #6 – Not enough detail
Ms. Washington arrived late to work on the morning of Monday, April 26. She later reported that her mother-in-law had passed away and that she needed to leave work. After someone consulted with HR, Ms. Washington left work shortly thereafter without talking to her supervisor.
Error #7 – Lack of objectivity
Ms. Washington claimed that she told her supervisor that she needed to leave work due to the death of her “mother-in-law.” She alleged that her “husband’s” mother had died in San Carlos, California on April 25, 2010. However, she was still able to report to work on the morning of Monday, April 26, 2010, and she never mentioned the “death” of her “mother-in-law” until she had been at work for over two hours.
Error #8 – Unclear identification of sources
Ms. Washington said she was married to Craig Nakagashi on September 7, 2007, in Las Vegas, Nevada. There is no record of this marriage.
Ms. Washington initially said that Wright Funeral home in San Carlos, California handled the funeral arrangements for her mother-in-law, Tasuki Nakagashi, on April 28, 2010. There is no Wright Funeral home. In fact, there is no record of any death by anyone of that name on that date in Del Vista Mar County.
Error #9 – Inclusion of irrelevant facts
Ms. Washington told the investigators she and Craig Nakagashi were married at the Hard Rock Café and Casino in Las Vegas, Nevada at about 2:00 a.m. on Spetember 7, 2007. She said her husband’s mother’s name was Tasuki Nakagashi. She died on April 25, 2010, after a long battle with cancer. She died in her home in San Carlos, California. Because she was not a U.S. resident, having emigrated to the United States in the decade after World War II, Ms. Nakagashi requested that her remains be cremated and returned to her hometown in Japan. The memorial service had a Japanese theme, and was held on April 29, 2010, at the home of her sister-in-law, Tricia Nakagashi, in San Carlos, California. Although estranged from her husband because of his drinking, Ms. Washington felt that she needed to be present to support him during his mother’s funeral. Since the funeral, however, their estrangement has continued.
Error #10 – Concluding statements not supported by facts
Ms. Washington is a liar. There was no marriage and there appears to have been no death. It is more likely than not that she simply wanted the week off to stay at home and relax and that she concocted a story hoping that no one would question it.
Error #11 – Redundant information
Ms. Drummonds, Ms. Washington’s supervisor, called Ms. Gladys Morgan, Human Resources Manager, to verify that Ms. Washington could use bereavement leave and to ask if the leave could be taken in less than full day increments. Ms. Morgan replied, on behalf of Human Resources, that it could. Ms. Drummonds, the supervisor of Ms. Washington, informed Ms. Washington of the approval of Ms. Morgan and HR.
Error #12 – Frequent use of passive voice
Ms. Washington was told that she should report to HR when she returned to work on Monday. When she arrived, she was told that she needed to provide proper documentation of her marriage and her need for bereavement leave. Despite multiple requests, Ms. Washington has never provided the requested documentation. On the contrary, despite being given many specific requests and being told exactly what is required of her, the Court has only been provided with many excuses as to why the documents are not available. Accommodating Someone with a Visual Impairment Tuesday, July 31, 2012 2:45 p.m. – 4:00 p.m. Signers’ Ballroom Speaker: Ms. Lisamaria Martinez, Donor Relations Coordinator LightHouse for the Blind and Visually Impaired Lisamaria Martinez is the Donor Relations Coordinator at the LightHouse for the Blind and Visually Impaired. The LightHouse promotes the independence, equality, and self-reliance of individuals who are blind or visually impaired, and Lisamaria has been a part of the staff since 2008. She previously served as a volunteer. Lisamaria has a B.A. from the University of California – Berkeley in Social Welfare and a Master’s degree from Louisiana Tech University in Educational Psychology with a concentration in Orientation and Mobility. She is the president of the Sports and Recreation Division of the National Federation of the Blind (NFB) and she is active in her local chapter of the National Federation of the Blind of California (NFBC). In 2008, Lisamaria was ranked fourth in the world in the 70K weight category for Paralympic judo. She is an active advocate and mentor in the blind community and enjoys yoga, reading, cycling, dancing, wine tasting, and traveling. Most recently, she enjoys being a mom to her 17-month-old son Erik who teaches her every day the pleasure of finding joy in the simplest things. You may contact her at [email protected] or 415-694-7350.
Page 1 of 1 LIGHTHOUSE FOR THE BLIND AND VISUALLY IMPAIRED 214 VAN NESS AVENUE SAN FRANCISCO, CA 94102 PHONE: (415) 431‐1481 TOLL‐FREE: (888) 400‐8933 VIDEO PHONE: (415) 255‐5906
WWW.LIGHTHOUSE‐SF.ORG
When we think of "blind," we think of total darkness. However, a person may be "legally blind" with either:
. 20/200 with best correction in the better eye . A field of vision restricted to 20 degrees or less.
A person whose vision is 20/70 to 20/200 is legally referred to as "visually impaired." However, many legally blind individuals who have remaining vision prefer to be referred to as visually impaired or low vision. If you are not certain, follow sthe person’ language cues or simply ask.
Some people are born with no vision or significantly reduced vision. Others lose vision due to accidents or the natural aging process, usually starting in their 40’s. For some, vision loss is sudden, while for others, it may be gradual. Some conditions, like diabetic retinopathy, cause vision to fluctuate from day to day.
1 According to the Centers for Disease Control (CDC), common causes of vision loss are Age‐related eye diseases such as:
Macular Degeneration Cataracts Diab eti c RRietinopath y Glaucoma Other causes of blindness are: Amblyopia Strabismus Retinitis pigmentosa Optic nerve atrophy Ocular albinism.
Some language around disability is outdated and can be disrespectful.
Never say “hhdandicapped .”
The term handicapped originated from a “beggar with cap in hand.” Because of its negative connotation, it is rejected by the disability community.
When speaking with or about people with disabilities, use “people‐first” language. It puts the emphasis on the person —not the disability. Instead of ref erring to “th e blind ,” say “people who are blind, person who is visually impaired.”
2 How many blind or visually impaired people are there in the United States?
According to the World Health Organization (WHO), there are approximately 11.4 million blind and visually impaired people living in the United States.
What is the proper terminology for someone who is blind, or, what is the politically correct term for a blind person?
3 Like any other “group,” blind people self‐ identify many different ways. Some do not like terms such as visually impaired or partially sighted. Some do not like being called “blind.” The best thing to do when needing to refer to someone who is blind or visually impaired is to ask their preference.
When you lose your sight, or when you're blind, all of your other senses are heightened.
A common misperception is that when someone loses their sight, or for that matter any of their senses, their other senses become more sensitive. This is not true. In actuality, when one is deprived of a sense, he or she will learn to use thhieir remaiiining ffliaculties more effici entl y. In other words, your other senses do not become stronger, you just learn to obtain information through them that you would have obtained through the sense you lost. For example, with sight you could look at someone's face and know immediately that that person is smiling, where as if you were blind you'd have to listen to that person's voice inflection to be able to tell if they were smiling or not.
4 Interacting with blind individuals can cause anxiety for some sighted people. It is important to understand that most blind people perceive information and their environment quite well ; the y simpyply use different strategies for everyday tasks than one who is sighted might.
Here are some examples to keep in mind: Introduce yourself when you walk into a room and announce when you are leaving, so that a blind person knows with whom they are communicating. Alwa ys speak directly to the blind person, not their companion, if they are with someone else. Do not raise your voice talking to a blind person. Do not talk to a blind adult as you would a small child. Blind people do not require you to make physical contact with them to perceive you are near. As with anyone whom you may not know well, physical contact may be unwelcome or intrusive.
Be yourself. Use normal language. It is okay to say things like: "Do you see what I mean?“ "Would you like to take a look at the work area?“ "I hope to see you again."
5 In group discussions, activities and demonstrations be aware of gestures and illustrations that must be seen to be understood. Develop the habit of describing these things as they are taking place or being demonstrated.
Don't think of a blind person as just a blind person.
A blind person is just a person who happens to be blind.
Here are some hints and tips to remember when offering help to a blind or low vision person:
When offering assistance, don’t automatically assume the person requires help. Ask first, “Can I offer you any assistance?”followed by “How can I best assist you?”
6 When giving directions, keep directions simple and specific. Try to avoid phrases like “over there” or “that way.”Some examples:
"The drinking fountain is about five yards to your left." "The visitor's center is on the northwest corner of the main parking lot.“ Using the face of a clock as a reference is a useful way to give directions. If applicable, include obvious landmarkswhen giving directions.
If the blind person prefers to be guided to an area or location and you are comfortable providing guidance, then offer your elbow. Here are easy steps to remember when acting as a human guide:
Position yourself beside the blind person and allow them to find your elbow. Their hand should grip your arm just above the elbow; fingers on the inside, thumb on the outside. You will want to walk to the side and about a half‐step ahead of the blind person. While being guided, the blind person may hold their cane vertically or keep it extended in front of them.
When stepping up and down curbs or stairs it is helpful to verbalize that there is a curb or staircase approaching. However, don’t panic if you forget to mention a step. By hhldolding onto your elbow, a blind person can feel whether you are on level ground or if you are stepping up or down.
7 If a narrow space is coming up, it’s a good idea to verbalize that a narrow space is approaching. Tuck your arm behind your back and allow the person to fall in behind you. If you will be passing through a door, say so and let the blind person know whether the door will be on their left side or their right side. If you guide a blind person to a chair, place your hand on the back of the chair you are offering. Do not push the person into a chair.
D’Don’t worry if you cannot remember everything. When in doubt ask questions. It’s never wrong to respectfully ask questions to facilitate better communication and understanding.
The Americans with Disabilities Act (ADA) is a federal civil rights law that protects individuals from discrimination based on their disabilities. The ADA asks us to "reasonably accommodate" the limitations imposed by a person’s disability.
Reasonable accommodation is defined as modification or adjustment of a job, employment practice, or the work environment that makes it possible for a qualified person with a disability to fully participate in his or her community, including being employed.
Generally speaking, the term “disability” is defined as an individual with a physical or mental impairment that substantially limits caring for oneself, performing manual tasks, walking, seeing, hearing, eating, sleeping, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, or working.
8 Do courts have to comply with the Americans with Disabilities Act?
Yes. All units of state and local government, including the courts, must comply with the Americans with Disabilities Act.
What programs, services, and activities of the courts must be made accessible?
9 Under the provisions of Title II of the ADA, a public entity shall operate every service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities. This requirement is generally referred to as program accessibility, which is distinct from facility accessibility.
Are there any exceptions or defenses to providing requested accommodations?
Yes. A public entity is not required to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or would result in undue financial and administrative burdens. However, proving such a defense requires a public entity to meet a substantial threshold.
10 State and local courts must ensure that communications with participants in and observers of a judicial proceeding are as effective for people with disabilities as they are for others. To achieve this, courts must make available appropriate auxiliary aids and services when necessary.
Who is entitled to program accessibility?
A qualified individual with a disability is entitled to program accessibility through either a reasonable modification to policies or auxiliary aids and services.
11 If reasonable modifications or auxiliary aids or services are needed, who must pay for them?
The ADA prohibits a public entity from placing a surcharge on services for individuals with disabilities to cover the cost of accommodations.
Here are examples of accommodations for persons who are blind or low vision …
12 Magnifiers can assist someone with low vision to fill out forms, read text or look at graphics.
Tape recorders or other recording devices may be used for note taking. Recording devices can be used to respond to questions and conversations in which others are writing responses.
Screen magnification Screen reading software will read software can enlarge print text on the screen to a person so on a computer screen. that they can read documents, fill out forms and access the internet.
13 Machines that magnify printed materials (Closed Circuit Televisions) permit a person who has some usable vision to read memos and books and fill out forms.
If a form or an application needs to be filled out, one of the simplest accommodations that can be offered is the assistance of someone in the office helping to complete the form in a private location.
A signature guide can help a person sign their name on the line.
14 You can greatly improve the experience of individuals who are blind or visually impaired by providing written material in alternative formats. Here are some things to consider when deciding how best to provide alternative formats:
Large print documents and sigggnage should be high contrast (black text on a white background, black text on a yellow background, etc). Large print documents and signage should be printed in sans serif fonts such as Verdana or Arial. Large print documents should be in large font sizes, such as 18 point font. Audio recordings of signage and written documents can be provided in a variety of formats, such as cassette tape, audio CD, or downloadable digital files, for use on a variety of audio players. Braille signage and documents are useful for many people with visual impairments and they are essential for individuals who are deaf‐ blind.
The LightHouse has the ability to produce materials in a variety of alternative formats.
For more information write to:ais@lighthouse‐sf.org.
LIGHTHOUSE FOR THE BLIND AND VISUALLY IMPAIRED 214 VAN NESS AVENUE SAN FRANCISCO, CA 94102 PHONE: (415) 431 ‐ 1481 TOLL‐FREE: (888)400 ‐ 8933 VIDEO PHONE: (415) 255 ‐ 5906
WWW.LIGHTHOUSE‐SF.ORG
15 iPad Technology: Uses and Applications for a Modern Judiciary Wednesday, August 1, 2012 8:15 a.m. – 9:30 a.m. Lynch/Heyward Rooms Speakers: Mr. Blake A. Hawthorne, Clerk Supreme Court of Texas Mr. Rory L. Perry, Clerk Supreme Court of Appeals of West Virginia Mr. Blake A. Hawthorne, Clerk Blake A. Hawthorne is the Clerk of the Supreme Court of Texas. The Supreme Court of Texas appointed Blake to a four-year term as the Clerk of the Supreme Court of Texas on August 1, 2006. The Court reappointed him to a second term beginning on August 1, 2010. Prior to his appointment to Clerk of the Court, Blake served the Court as the Staff Attorney for Original Proceedings. Before joining the Court, he was an Assistant Attorney General for the State of Texas and an associate in the law firms of Wiley, Rein & Fielding in Washington, D.C. and Jackson Walker in Fort Worth, Texas. Blake graduated magna cum laude from Tulane University with a degree in Anthropology and Spanish in 1992. The faculty of the Anthropology Department awarded him the Robert Wauchope Award as the most outstanding graduate that year. While a student at Tulane, he spent his junior year abroad studying at La Universidad Complutense in Madrid, Spain. Blake graduated with honors from the University of Texas School of Law in 1996. He is Board Certified—Civil Appellate Law by the Texas Board of Legal Specialization. Blake is a member of the Judicial Committee on Information Technology (JCIT) and serves as the Co-Chair of the Electronic Filing Subcommittee. He is also Co-Chair of the Steering Committee for the Texas Appeals Management and E-Filing System (TAMES). And he is a member of the Executive Board of the National Conference of Appellate Court Clerks (NCACC). He serves as Secretary for the Austin Bar Association Appellate Section. Blake is a native Texan, who was born in Austin, Texas. He is married to another native Texan and Austinite, Wendy Harvel, who is an administrative law judge with the State Office of Administrative Hearings. They have two daughters -- Sophie and Eva. Mr. Rory L. Perry, Clerk Rory L. Perry was appointed Clerk of the Supreme Court of Appeals of West Virginia in July 2000 after serving as Deputy Clerk. He is the thirteenth person to hold that office since the state was founded. During his time with the Court, he has served with eleven Justices and observed thousands of oral arguments before the Court. He's a graduate of Marshall University and the West Virginia College of Law. During his tenure as Clerk, he has been responsible for implementing an updated case management system, organizing the webcast of court proceedings, and producing new ways for delivering court information on the Internet. He is a member of the West Virginia Civics Literacy Council and the Hi-Y Youth in Government Board. He is an active member of the National Conference of Appellate Court Clerks, which is a national organization that includes the clerks of state and federal courts. He will serve as President of NCACC beginning in August 2012.
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NATIONAL CONFERENCE OF APPELLATE COURT CLERKS 39th Annual Meeting, Charleston, South Carolina Wednesday, August 1, 2012
iPad Technology: Uses and Applications for a Modern Judiciary
Blake Hawthorne, Clerk of Court, Supreme Court of Texas
Rory Perry, Clerk of Court, Supreme Court of Appeals of West Virginia
INTRODUCTION
Since the touchscreen tablet was introduced in April 2010, Apple has sold 28.73 million iPads. It sold 9.25 million — almost a third of total units sold — just in the quarter that ended in June.1 Apple's touchscreen tablet computer holds a healthy majority of the global tablet market share.2 The iPad's ease of use has led to rapid adoption across the medical and legal professions. Just one year after the iPad's release, 27% of primary care and specialty physicians owned an iPad or similar device.3 The device is also commonly-used by judges.
According to a recent report, 58% of Federal Judges use an iPad for their court work. . . .
The iPads have replaced laptops for many judges. Judges find the iPad very intuitive and less daunting than a laptop, and IT staff finds the iPad easier to support and less prone to technical issues.
According to surveys, federal judges use the iPad most for email, where the iPad’s large screen beats smaller mobile devices for easy reading of emails and attachments. Most judges also use an iPad for general reading because electronically filed documents are all PDF format. . . . The documents can be annotated while reading and the annotations persist when the document is returned to chambers storage servers. Judges appreciate the ability to take voluminous documents with them in the same device they use for email. This results in less printing of electronically filed papers.
U.S. District Judge David Nuffer, U.S. District Court, District of Utah.4 According to many of our members, use of iPads in the appellate courts is on the rise. A recent survey conducted on the NCACC listserv yielded the following results.
All Justices Using iPads: Arizona Ct of App – Div One * California Ct of App – 3rd Dist * California Ct of App – 5th Dist * Delaware Supreme Court * Florida Supreme Court * Indiana Ct of App Louisiana Ct of App – 1st Cir * Louisiana Ct of App – 2nd Cir * Missouri Ct of App – Southern Dist * North Carolina Supreme Court
NCACC - iPads in the Appellate Courts Page 2 of 15 Texas Supreme Court * U.S. Ct of App for Veterans Claims Virginia Supreme Court *
Some Justices Using iPads: Massachusetts Appeals Court North Dakota Supreme Court Pennsylvania Superior Court Washington Supreme Court West Virginia Supreme Court* Wyoming Supreme Court
One Justice Using iPad: Iowa Supreme Court Kansas Supreme Court New Jersey Supreme Court Rhode Island Supreme Court
* Indicates use of iPads by court staff in addition to the justices
As the number of tablets on the market continue to increase, the sophistication of applications and users will follow. It is reasonable to expect that the touchscreen tablet computer — whether it is an iPad or some other model — is here to stay.
BUILD A PAPERLESS CULTURE FROM THE INSIDE OUT
To understand why the iPad has taken hold in the modern judiciary, consider the four primary (non-verbal) tasks that judges and court staff do every day to get their work done:
Reading
Annotating
Retrieving
Writing and Editing
Over the years, these tasks have moved through a broad range of different toolsets: leatherbound law books, quill pens, pencils, fountain pens, ball-point pens, carbon paper, paperback law books, looseleaf services, manual typewriters, electric typewriters, dial-up research services, word processors, dot-matrix printing, laser printing, CD-ROM law books, desktop computers and always-on internet. Although the desktop computer with a traditional monitor, keyboard and mouse is very well-suited for annotating, retrieving, writing and editing, it is not well-suited for long periods of reading, and it
NCACC - iPads in the Appellate Courts Page 3 of 15 won't work at all when you are not at your desk. Laptop computers work well when you are not at your desk, but are still not suitable for long periods of reading. Mobile devices like tablets also work just fine when you are not at your desk, plus they are much lighter with longer battery life. Because of this, tablets like the iPad are very well-suited for long periods of reading and work quite well for retrieving and annotating. Tablets like the iPad also have writing and editing features, but are not as well-suited for that task as the desktop computer or the laptop.
One of the benefits of using iPads in the appellate courts is that it builds a paperless culture from the inside out. As Judge Nuffer pointed out in his remarks quoted at the beginning of this paper, in many courts all the incoming documents are already in electronic format. By their very nature appellate courts are document- intensive. Appellate judges read lengthy briefs, transcripts, record excerpts, staff memos, opinion drafts, etc. By keeping the documents electronic during the entire work cycle, you reduce the amount of resources devoted to printing, sorting, filing and shredding paper, not to mention the time spent converting paper documents to electronic, and vice-versa.
FITTING THE iPAD INTO THE WORKFLOW
As appellate court clerks one of our roles is to make sure that case materials are distributed to the members of the court, that those materials are retrieved if necessary and processed as appropriate. With paper-based files the distribution process is physical in nature. We prepare the documents in a certain fashion according to the wishes of the court, and we transfer the files to the members of the court.
Although the distribution process for electronic files is not physical in nature, the same two concerns apply: (1) How should the documents be prepared? (2) What is the best means of transfer?
Preparing documents. Some of the case materials distributed to the court are available on a public website. However, other case materials might contain research memoranda, opinion drafts, or confidential matter. It will also often be useful to combine the variety of materials that judges need into a single bundle, rather than distributing the document in a piecemeal fashion. The iPad works very well for routine messages, e-mails and the like. However, before you send a 200-page set of case materials to your judge you need to properly prepare the materials to be used on the target device.
Most of the electronic documents in the court system are distributed as PDFs. Although other formats are available (word processing formats like Word, WordPerfect, RTF, EPUB5 and others) the toolsets for easily handling those files are not as widely available as those that work with PDFs.
The best PDFs are those that are created from native word processing files, which means that the actual text is embedded within the PDF itself. The text is crisper and easier to read, and the PDF is searchable. On the other hand, PDFs created from
NCACC - iPads in the Appellate Courts Page 4 of 15 scanned paper documents are not as easy to read, and they are not searchable unless they are processed using optical character recognition (OCR). When promulgating rules that relate to the format of electronic filings, courts should consider requiring PDFs to be created from the native text files for maximum usability.
Because some appellate court case materials frequently involve multiple documents, it is often useful to merge these materials into a single PDF in order to create a PDF binder. The PDF binder has the advantage of a built-in system of logical bookmarks, which allow the end user to be able to quickly navigate to the appropriate document. It also reduces the number of items that have to be distributed. The following screenshots show how to create a PDF Binder using Adobe Acrobat 9 Pro.
How to Merge Multiple Files Into a Single PDF Binder
Before you begin, you will need to know the location of the PDFs that you wish to assemble. (This process also works with Word files that have not previously been converted to PDF.) Although it is not necessary at this stage, it is helpful if these PDFs have already been given descriptive logical names that the end user will understand.
From the Create menu, choose Merge Files into a Single PDF . . .
NCACC - iPads in the Appellate Courts Page 5 of 15
This brings up the Combine Files dialog box. Choose Add Files . . .
This brings up the Add Files dialog box where you can select multiple PDF files to include in the binder. If you have already named the files in a logical fashion, then it is easier to select the files you need.
To select non-contiguous files, simply hold down the Control key while selecting the files you want. You can include as many PDFs as you need, including PDFs that have already been merged.
After you have selected all the files you need, click Add Files . . .
NCACC - iPads in the Appellate Courts Page 6 of 15 Acrobat will then process the files and you will be returned to the Combine Files dialog box, where you will have the opportunity to re-order the files before making the binder.
Use the Move Up and Move Down buttons to re-order the files in a logical order. You can also choose the pages to include from individual documents, and remove items that don't belong in the list. The goal is to make a logical list that the end user will be able to navigate, similar to a table of contents. Once you have finished, click Combine Files.
NCACC - iPads in the Appellate Courts Page 7 of 15 The resulting PDF will automatically contain a set of bookmarks with the same names as your file names. This process works even when the individual files that you are combining also contain bookmarks, as indicated by the red arrow.
Another advantage of this approach is that the bookmarks will automatically appear in the Table of Contents if you open the PDF in iBooks. Other third-party applications that work with PDF files can also display the bookmarks. The following screenshot shows what the bookmarks (from a different case) look like when rendered as a Table of Contents in iBooks.
NCACC - iPads in the Appellate Courts Page 8 of 15
Distributing the documents. Once the documents are prepared, you must consider the means of distribution and the limitations that come with each of them. Some court e-mail systems, for example, will not handle any attachment that is over a certain file size. Other courts may have strict limitations on the methods for transmitting certain files.
Means of Advantages Disadvantages Transfer
Web Easy to use and widely Difficult to implement available for confidential materials
iTunes Built-in Cumbersome, difficult to distribute multiples
Email Familiar, easy to send File size limits, can be and receive multiples inefficient
VPN Secure access to file Awkward to use touch system for mouse navigation
Cloud-based Works across multiple If outside court devices network, probably violates security policy
SharePoint Secure access to Requires expensive SharePoint resources hardware and support infrastructure
Secure FTP Secure access to file Requires some back- system from within apps end maintenance
Using the "Open In" Menu. For many of these means of transfer, the document will be opened from within the app itself. However, for documents transferred via e-mail or downloaded from a website, you must use the "Open in" menu. For items received as an e-mail attachment, simply wait for the entire attachment to load, then tap and hold the item and a menu will appear.
NCACC - iPads in the Appellate Courts Page 9 of 15 The options in the menu vary depending on the type of attachment. You can choose Quick Look for a preview of the item. This is helpful when the attachment has a name that does not easily describe its contents. The following example uses an e-mail attachment.
The iPad always give you the option to open an attachment in a default iOS application, in this case iBooks. However, the "Open In" menu option will list all of the available apps on your iPad that can be used to open the file. A version of this menu also appears when you open PDF files in the web browser. You can view the file within the browser itself, or you can choose to open the PDF in another application. Here's what the "Open In" menu looks like from within the browser.
NCACC - iPads in the Appellate Courts Page 10 of 15 A FEW POINTS TO CONSIDER
Security
1. When connecting to a site that requires credentials, use https, not http. Sites that use https encrypt the transmission for added protection and privacy.
2. Be aware of your surroundings (watch behind you). Avoid working on sensitive or confidential documents in public places where others can see your screen.
3. Be suspicious of “the cloud”. Avoid saving files to services such as DropBox that exist in the cloud. While these services proclaim that they are secure, you have no recourse or 100% assurance that your files are protected from others and are backed up.
4. Be careful when using FaceTime (and other text/video chat). FaceTime travels over an unencrypted transmission. Avoid talking on matters that you wouldn’t talk about in a public setting.
5. Use a passcode. All iPads ship with powerful hardware encryption to protect the data on your iPad, but you must enable it. To enable data protection, all you have to do is set a passcode for your device. Tap Settings > General > Passcode. Follow the prompts to create a simple four-digit passcode. After the passcode is set, the text "Data protection is enabled" should appear at the bottom of that settings screen. You can create a more robust password by disabling the simple password option. Some third-party applications, such as GoodReader, are designed to take advantage of the data protection setting. Check the settings of all apps carefully.
NCACC - iPads in the Appellate Courts Page 11 of 15 HELPFUL APPS
The App Store contains millions of applications (or "appps) that will be helpful for the appeellate courts. Some of the apps are free and some requiire payment. Here are two lists to help you get started. Please check with your IT department for any guidelines that are applicable in your jurisdiction.
Helpful Free iPad Apps
Mail (Included) Used for sending/receiving email. This app can handle multiple email accounts and addresses
Safari (Included) Used for web surfing. NOTE: Safari cannot render flash and some weebsites detect it as a mobile browser (and will show the mobile weebsite).
Calendar (Included) Used for reviewing and upu dating yoour calendar. Can be configured for use with your Microsoft Exchange Outlook calendar.
Google Maps (Included) Used as a real-time map. With locaattion services turned on, you can get directions and search the area.
iTunes (Included) Used to listen to podcasts or review material frfrom the iTunes University. Lege al and justice-relateed podcasts are available on a wide variety of topiics.
YouTube (Included) Allows you to search and watch YouTube videoos.
ApppStore Allows you to search for applications that can be installed on the iPad. It also checks for updates to any appss that have been installed. Requires an iTunes Store account.
NCACC - iPads in the Appellate Courts Page 12 of 15 iBooks Used for viewing and organizing PDF files. Files can be organized into “bookcases." Public domain books are available for free on the iBooks Store, along with titles for purchase.
Kindle Amazon’s eBook reader with access to 900,000+ books. If you already have a Kindle account, you can link it throughh this app to get access to already purchased books.
PocketCloud Used as a remote desktopo client. Once connected via VPN, this allows you to “remote” into your computer at the offiice.
Westlaw Next Access your WestlawNext account directly from your tablet with features customized to your iPad.
Addobe Reader Adobe Reader is the free, trusted leader for reliably viewing and interacting with PDF documents across platforms and devices.
Lexis Advance Access your Lexis Advance account directly from your tablet with features customized to your iPad.
Helpful Paid iPad Apps
WordPerfect Viewer - $5.99 This app is required if you want to read WordPerfect files on the iPad. Allows you to view and search WordPerfect files on your iPad
iAnnotate PDF - $9.99 Allows you to highlight and annotate PDF documents. Includes the ability to do voice annotations, insert blank paages, tabbed PDF viewing.
NCACC - iPads in the Appellate Courts Page 13 of 15 QuickOffice HD - $19.99 Allows you to create and edit Microsoft Office documents (Word, Excel, Powerpoint). Files can also be saved as PDF doocuments.
Penultimate - $1.99 (Requires a stylus, bought seeparately) Substitutes for the pad of paper and pen. Allows you to take notes on the iPad using a stylus. Notes can be stored and organized into notebooks.
GoodReader - $4.99 Allows you to read PDF, MS Office documents, iWork documents, along with audio and video files. It also haas an annotation tool for PDF files. Suppu orts secure FTP and data protection.
PDF Expert – $9.99 Allows you to read and annotate PDF documents, highlight text, make notes, draw with your fingn er and save these changes beinng compatible with Preview and Adobe Acrobat. Moreover, PDF Expert claims to be
the only iPad application that can fill PDF forms. The new version 4.1 suppp orts audio annotations and secure FTP. SharePlus Pro - $19.99 (free version also available) Securely browse your Windows Sharepoint content. Works with Sharepoint 2007 and 2010, using Windows SharePoint Services 3.0. Uses iOS's built-in hardware-based encryption to protect all local data.
Helpful iPad Reference Materials
Apple's Official iPad User Guide http://manuals.info.apple.com/en/ipad_user_guide.pdf iPad for Lawyers – Website by Tom Mighhell http://ipad4lawyers.squarespace.com/
NCACC - iPads in the Appellate Courts Page 14 of 15 Endnotes:
1 Apple Reports Third Quarter Results (July 19, 2011). http://www.apple.com/pr/library/2011/07/19Apple-Reports-Third-Quarter- Results.html
2 Strategy Analytics: Apple iOS Captures 61 Percent Share of Global Tablet Shipments in Q2 2011 (July 21, 2011). http://www.benzinga.com/pressreleases/11/07/b1786786/strategy-analytics-apple-ios- captures-61-percent-share-of-global-tablet
3 Doctors Cite Ease of Use in Rapid Adoption of Tablet Computers, American Medical News, April 11, 2011. http://www.ama-assn.org/amednews/2011/04/18/bisc0418.htm
4 Judges + iPads = Perfect Fit? (June 12, 2012). http://www.geeklawblog.com/2012/06/judges-ipads-perfect-fit.html (Last visited June 29, 2012).
5 EPUB is the format most widely used for electronic books. It is usable in all the different e-reader devices (including iBooks on the iPad), and allows the user to increase font size, change the orientation of the device, etc. Although standard word processing documents can be converted to EPUB files, the process is cumbersome, especially if the source document was not formatted logically (e.g. using header and sub-header styles appropriately and consistently). However, as tools for creating EPUB documents become more commonly available, some courts may wish to consider permitting or requiring briefs to be filed in EPUB format.
NCACC - iPads in the Appellate Courts Page 15 of 15 Technology and Ethics: Moving Ahead and Avoiding Pitfalls Wednesday, August 1, 2012 2:00 p.m. – 3:15 p.m. Lynch/Heyward Rooms Speaker: Mr. Charles E. Carpenter, Jr., Appellate Counsel Carpenter Appeals & Trial Support, LLC Charlie is a graduate of the University of Virginia Law School, Furman University, and the University of South Carolina MPA Program. For a number of years, Charlie was the shareholder in charge of the appellate section of Richardson Plowden Carpenter and Robinson before deciding to found this law firm specifically focused on appellate practice. Charlie is the 2007 President of the American Academy of Appellate Lawyers, www.appellateacademy.org. He is listed in a number of professional directories including Who’s Who in America, www.marquiswhoswho.com. Charlie holds an AV rating from Martindale Hubbell, www.martindale.com and he has been selected under appellate practice, commercial litigation, and health care in The Best Lawyers in America, www.bestlawyers.com. Charlie has also been selected for appellate practice and insurance coverage in Super Lawyers in South Carolina, www.superlawyers.com, and he has been elected to the American Law Institute, www.ali.org. Charlie has served on a number of commissions and boards including the ABA Task Force on Unpublished Opinions, the South Carolina Supreme Court’s Board of Law Examiners, and the South Carolina Supreme Court’s Board of Commissioners on Grievances and Discipline. Charlie has participated in many conferences, seminars and CLE programs, including the Judicial Conference of the United States Court of Appeals for the Third Circuit, the Pacific Northwest Judicial Conference, the South Carolina Bar, and the National Conference on Appellate Justice, 2005 in Washington, DC. Before entering private practice, Charlie served as a Captain in the United States Army. Charlie is married to Nancy Carpenter and they have two children. John is a bank officer with Morgan Stanley in New York, and Elizabeth is an Assistant US Attorney in Los Angeles.
Page 1 of 1 TECHNOLOGY AND ETHICS:
Moving Ahead and Avoiding Pitfalls http://www.briggs.com/NCACC‐ethics‐and‐technology‐august‐2012
Former Chief Justice of the Minnesota Supreme Court Eric Magnuson
Contributions by Briggs & Morgan, P.A. Associate Jessie Stomski
2012 National Conference of Appellate Court Clerks Charleston, SC
“Because things are the way they are, things will not stay the way they are.”
- Bertolt Brecht
Outline
• The State of the Courts
• Turning to Technology
• Technology and Ethics
Presentation available at: http://www.briggs.com/NCACC-ethics-and-technology-august-2012 1 The State of the Courts
• The New Normal
. Minnesota and the New Normal . 2012-13 Budget Request
• Courts at a Tipping Point?
. NCSC, Economic Impact on the Courts . The Real Danger of Inadequate Court Funding . Justice Disserved
Turning to Technology
Before a Luxury…
Technology Now a Survival Mechanism 1. State Court Budgets: Reductions and Technology
Results of the 2009 NCSC Survey:
“With court hours and staff time on the chopping block, an overwhelming number of courts said they are turning to advanced technology as a means to protect the public’s access to courts.”
Turning to Technology
Before a Luxury…
Technology Now a Survival Mechanism
1. ECF on Appeal 2. Minnesota’s E-File & Serve Pilot Project
Presentation available at: http://www.briggs.com/NCACC-ethics-and-technology-august-2012 2 Turning to Technology
Impact of Technology on the Court
1. A Word from the Future
2. E-Filing in State Appellate Courts
3. Thawing Out the Cold Record
4. Deference in a Digital Age
5. E-briefs and Hyperlinks
Technology and Ethical Issues
Judges and Independent Research:
1. Appellate Courts Use of Internet Materials
2. The Curious Appellate Judge
3. Independent Judicial Research in the Daubert Age
4. When Judges Google
5. Attorneys Must Relitigate Cases for Free
Technology and Ethical Issues
Client Representation:
1. The Duty of Competence 2. Changing Times Means Changing Ethical Issues For Lawyers
Presentation available at: http://www.briggs.com/NCACC-ethics-and-technology-august-2012 3 Technology and Ethical Issues
Client Representation:
1. Data Protection 2. Redactions 3. Metadata 4. The E-Discovery Minefield • Email • Predictive Tools 5. Electronic Signatures
Technology and Client Advocacy
Additional Resources 1. ABA Legal Technology Resource Center
2. Effective Use of Courtroom Technology
Presentation available at: http://www.briggs.com/NCACC-ethics-and-technology-august-2012 4 What’s Bugging You? Thursday, August 2, 2012 8:30 a.m. – 9:30 a.m. Lynch/Heyward Rooms Speaker: Moderator: Mr. Kevin S. Smith, Administrator & Clerk Indiana Supreme Court, Court of Appeals, and Tax Court Kevin S. Smith was appointed by Chief Justice Randall T. Shepard in October 2004 to be the Administrator of the Indiana Supreme Court. In February 2006, the Chief Justice added the title and responsibilities of Clerk of the Indiana Supreme Court, Court of Appeals, and Tax Court to Mr. Smith's duties. Prior to being hired by the Indiana Supreme Court in 2004, Mr. Smith practiced law for nearly six years as a litigation attorney in two of Indiana's largest law firms. Before entering private practice, Mr. Smith served as a law clerk to the Honorable Alice M. Batchelder, Judge of the United States Court of Appeals for the Sixth Circuit, and as a law clerk to Chief Justice Shepard. Kevin received his J.D. magna cum laude from the Indiana University School of Law— Bloomington in 1996, and in 1992 graduated with high distinction from Indiana University—Bloomington’s School of Business with a B.S. in Business Economics and Public Policy and a minor in English. He has been an NCACC member since 2007 and at the 2012 conference will finish up a term on the NCACC’s Executive Committee. Kevin and his wife, Maggie, who practices appellate law, reside in Indianapolis with their two young children.
Page 1 of 1 Women in the Judiciary: A Perspective Thursday, August 2, 2012 9:30 a.m. – 11:00 a.m. Lynch/Heyward Rooms Panel: Ms. Irene M. Bizzoso, Prothonotary (Moderator) Supreme Court of Pennsylvania Hon. M. Kathleen Butz, Associate Justice California Court of Appeal, Third Appellate District Hon. Joan V. Churchill, Judge (Retired) Immigration Court for Arlington, VA President-Elect, National Association of Women Judges Hon. Kaye G. Hearn, Justice Supreme Court of South Carolina Ms. Irene M. Bizzoso, Prothonotary (Moderator) Irene M. Bizzoso was named the Prothonotary for the Supreme Court of Pennsylvania in December of 2010, after serving as Acting Prothonotary for a year. She is the second woman in the history of the Court to hold the statewide position. Irene was the Deputy Prothonotary for the Supreme Court of Pennsylvania, Middle District, for the preceding ten years. Prior to that appointment, she served as Legal Assistant to the Prothonotary for two years. She received her B.A.G.S. from The Catholic University of America in February of 1985 and her J.D. from Widener University School of Law, Harrisburg, in 1992. Before joining the Court, she served as an Assistant Counsel to the Pennsylvania Unemployment Compensation Board of Review for five years and was employed by the Manhattan District Attorney’s Witness Aide Services Unit for the four years prior to attending law school. She is licensed to practice law in both Pennsylvania and New Jersey. Irene currently serves as the Treasurer to the NCACC having been elected in August of 2009, and has been a proud member of the NCACC since 2000. She has served as Host; Executive Board member; Chair of the Ad Hoc Fee Review Committee; Chair of Convention Assistance Committee; Chair of the Scholarship Committee; and as a member of the Past Host Committee, Contract Committee, Convention Assistance Committee, Technology Committee, By-laws Committee, Site Selection Committee, Public Relations Committee, and Scholarship Committee. Irene is currently a Master in the James S. Bowman American Inn of Court and has served on various boards, in various executive positions, including the Violence Intervention and Prevention Program of the YWCA (1993-2001) and the Dauphin County Bar Association (1993-2007). A native of New Jersey, she has called Pennsylvania home for the past 23 years. Hon. M. Kathleen Butz, Associate Justice Justice Butz was born in Auburn, California, in 1950. She spent her junior year of high school as an American Field Service (AFS) International exchange student to Brazil. She graduated from Placer Union High School in Auburn in June 1968. Following graduation, she attended the University of California at Davis, where she obtained her B.A. degree in 1972. After working for several years in the School of Engineering and Shields Library at the University of California at Davis, she attended the UC Davis School of Law. She obtained her J.D. from that school in 1981. She was admitted to the California Bar on June 10, 1982. Justice Butz was in private practice in Nevada City, California, from 1982 to 1996. During that period, she was an associate in the law firm of Berliner & Spiller, and partner in the successor firm of Spiller, McProud, Butz & Kraemer. On November 5, 1996, she was elected to the Nevada County Superior Court. She was reelected to a second term in 2002. She served as presiding judge of the Nevada County Superior Court in 2001-2002, presiding judge of the Family & Juvenile Court for Nevada County in 2003, and supervising judge of the Nevada County Civil Grand Jury from 1997 to 1999. As a trial judge, she presided over civil, criminal, probate, family, and juvenile delinquency and dependency cases. In October 2003, Justice Butz was elevated by Governor Gray Davis to associate justice in the Court of Appeal, Third Appellate District. She was retained by California voters in 2006 and 2010.
Page 1 of 3 (Justice Butz, continued) Justice Butz has served as an instructor of judicial education for the California Center for Judicial Education and Research (CJER) and the B. E. Witkin Judicial College of California (1998-2003). She served as chair of CJER's Rural Courts Education Committee (2003-2004) and as a member of the Appellate Justices Education Committee (2004-2009). She currently serves as a member of the Judicial Council's Appellate Indigent Defense Oversight Advisory Committee (2005-2013), CJER's Appellate Practice Curriculum Committee (2010-2012), and the Executive Board of the California Judges Association (2011-2014). Justice Butz is a member and president-elect of the Schwartz / Levi American Inn of Court, an organization promoting civility, ethics, and professionalism in the legal profession. Married to Leonard Berardi, with one son, six stepchildren, and 15 grandchildren, Justice Butz is an avid reader, and enjoys travel and leisure time with family and friends. Hon. Joan V. Churchill, Judge (Retired) Judge Joan V. Churchill served as a Judge of the United State Immigration Court from 1980 to 2005, located in Washington DC/Arlington VA. During her tenure, she served 5 terms as a temporary Member of the Board of Immigration Appeals. The Immigration Court and Board of Immigration Appeals are administrative courts within the U.S. Department of Justice for the trial and appellate levels respectively. Appeals from the Board of Immigration Appeals go to the U.S. Courts of Appeal. Judge Churchill’s docket consisted largely of Asylum/Refugee cases, as well as other forms of relief sought by immigrants in removal proceedings, as well as bond proceedings. She handled detained and non-detained dockets. She has sat throughout the country on special assignments, stretching from The U.S. Virgin Islands and Puerto Rico to San Francisco, California. Courtrooms used during travel have varied from U.S. District court houses to prison locations. Shortly after becoming a Judge in 1980, Judge Churchill joined the National Association of Women Judges, which had formed the year before. NAWJ has close to 1,300 members throughout the United States. Judge Churchill currently serves as the organization’s President-Elect. She is also active in the International Association of Women Judges, which formed in 1989 as an outgrowth of the United States association. Judge Churchill received her Juris Doctor from the University of Michigan Law School, after completing her undergraduate work at the University of Michigan, during which she spent her junior year in France, in Biarritz and Paris. She is a native of Washington D.C. Prior to joining the bench, Judge Churchill’s career included private practice, academia, and serving as an attorney for the United States Department of Justice. Judge Churchill and her husband have seven children and twelve grandchildren. Hon. Kaye G. Hearn, Justice Justice Hearn was elected to the South Carolina Supreme Court in May of 2009, becoming its second female member in history. She is also the first former law clerk to become a member of the state’s highest court. She began her judicial career as Family Court Judge for the 15th Judicial Circuit, comprised of Horry and Georgetown Counties. While a family court judge, she served as President of the South Carolina Conference of Family Court Judges. After serving for nine years as a family court judge, Justice Hearn was elected to the South Carolina Court of Appeals, this state’s second highest court, in 1995. In 1999, she was elected Chief Judge of the Court of Appeals, a position she held until her election to the South Carolina Supreme Court. From 2005-2006, Justice Hearn served as President of the Council of Chief Judges of the Intermediate Courts of Appeal. Prior to going on the bench, Justice Hearn practiced law with the firm of Stevens, Stevens, Thomas, Hearn, and Hearn in Loris, South Carolina. Immediately upon graduation from law school, she was law clerk to The Honorable Julius B. Ness, Justice of the South Carolina Supreme Court.
Page 2 of 3 (Justice Hearn, continued) She received her Bachelor of Arts degree, cum laude, from Bethany College in 1972, and her Juris Doctor degree, cum laude, from the University of South Carolina School of Law in 1977. She received an LL.M. degree from the University of Virginia’s Graduate Program for Judges in May 1998. In 2010, she received an honorary Doctor of Laws Degree from the Charleston School of Law, and in 2011, she received an honorary Doctor of Humanities from Francis Marion University. Justice Hearn has been a past member of the Board of Bar Examiners, the CLE Commission, the ADR Commission, the Chief Justice’s Commission on the Profession, and the Nelson Mullins Commission on Professionalism. She is presently a member of the South Carolina Judicial Council, the University of South Carolina Law School’s Partnership Board, and the Charleston School of Law Board of Advisors. In 2004, she was the portrait honoree for the South Carolina Trial Lawyers Association. In 2011, she received the Jean Galloway Bissell Award from the South Carolina Women Lawyers Association. From 2006 through 2008, she served as an adjunct professor at the Charleston School of Law, teaching a class on appellate advocacy.
Page 3 of 3 7/24/2012
A mini Overview of The National Association of Women Judges
Presented by Hon. Joan V. Churchill August 2, 2012 To the National Association of Appellate Court Clerks
Founders: Joan Dempsey Klein & Vaino Spencer Justices on California Court of Appeals Justice Klein had founded the California Women Lawyers Association Justice Spencer had founded the Black Women Lawyers Association
Challenge –to Locate Women Judges
• Univ. of Wisconsin political scientist Beverly Blair Cook had prepared a list • Assistance of Judges – Shirley Abramson Wisconsin Supreme Court – Justice Rose Bird California Supreme Court – Judge Jean Cooper, Administrative Judge, HUD
• White House Office of Women’s Issues per request of Judge Cooper, provided names & phone # of all women in the Federal Judiciary
1 7/24/2012
1st Conference
. 100 attendees including Sandra Day O’Connor, then a Judge on the Arizona Court of Appeals . 50 additional Charter Members
Attendees at 1st Conference October 25‐28, 1979 Los Angeles, California
Objectives of Founders
• Solidarity in numbers • Public acceptance of women judges
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Resolutions of 1st conference
• Support for the Equal Rights Amendment • Call for appointment of woman to U.S. Supreme Court • Call for ABA adidoption of standddards for membership in clubs that practice invidious discrimination
NAWJ Mission
Promote the judicial role of protecting the rights of individuals under the rule of law through • strong, committed, diverse judicial leadership, • fairness and equality in the courts, and • equal access to justice.
Objectives
• Promoting diversity on the bench • Promoting equal access to justice for disadvantaged groups • Networking • Providing cutting edge education
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Initiatives
• Gender Bias Task Forces • Testimony in favor of women justices on U.S. Supreme Court: O’Connor & Kagan • Establis hment of Numerous Projects • Support for CEDAW –Convention for Elimination of Domestic Violence • Support for Violence Against Women Act • Formation of IAWJ
Membership
Our organization welcomes both men and women.
• JUDGES • appellate, trial, administrative, military, tribal, • state and federal • every state, DC, VI, PR • International & foreign • Court Clerks • Law Students • Attorneys • Friends
Projects
• Gender Bias Task Forces • Color of Justice & Mentor Jet • Genome Justice • Women in prison • Obstacles to Justice for Immigrants • Special Courts • Equal access scholarships
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Programs
• Judicial ducational training sessions • Outreach to law school students and to disadvantaged youth • Programs in detention centers – Success inside & out – College courses – Book clubs – Girl scouts • Conferences – Annual – Regional – District – International Biennials
At NAWJ Annual Conference 2011 Newark, NJ Judge Joan Churchill, ret., U.S. Immigration Court with Justice Peggy Pi‐Hu Hsu, Constitutional Court, Taiwan
NAWJ Annual Conference 2011 ‐ Newark, NJ Justice Ruth Bader Ginsburg Delivering KeyNote Address
NEWARK — Supreme Court Justice Ruth Bader Ginsburg looked out at a room of 300 female judges from around the world last night at the Newark Club and offered a piece of advice: Dare to disagree. By Julia Terruso/The Star‐Ledger
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IAWJ CONFERENCE –LONDON, MAY 2012
Ideals of NAWJ
• ensuring equal justice and access to the courts for all including women, youth, the elderly, minorities, the underprivileged, and people with disabilities; • providing judicial education on cutting‐edge issues of importance; • developing judicial leaders; • increasing the number of women on the bench in order for the judiciary to more accurately reflect the role of women in a democratic society; and • improving the administration of justice to provide gender‐fair decisions for both male and female litigants
Congressional Caucus Meeting –July 10, 2012 Washington DC
Congresswoman Donna Edwards, MD
Congresswoman Anne Marie Buerkle, NY
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Congressional Caucus – 7/10/2012 Panel Discussion on Human Trafficking & Child Exploitation Key note: Judge Virginia Kendell Panel: Brad Miles CEO of Polaris which provides services to trafficking victims Sarah Devine, attorney, & Anya McMurray Senate Judiciary Committee staff
From left: Brad Miles, CEO Polaris Sarah Devine, Esq. pro bono attorney Judge Amy Nechtem, NAWJ President Judge Joan Churchill, NAWJ President Elect Virginia Kendell, USDC NDIL Judge Anna Blackburne‐Rigsby, DC Court of Appeals Col. Lauren Leeker, Co Chair Anya McMurray, Senior Counsel, Senate Judiciary Committee
NAWJ Color of Justice & Mentor Jet programs Alaska ‐ 2011
NAWJ Color of Justice Program Washington DC 2006
Judge Judith Macaluso, DC Superior Future Judge? Court, describing her Courtroom Trying out the robe & bench
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4 Women Justices of the U.S. Supreme Court From left: Justices: Ruth Bader Ginsburg & Sandra Day O’Connor Sonya Sotomayor & Elena Kagan
8 Photo: Charleston Convention & Visitors Bureau