STATE COURTS The State Courts in 2006: Surviving Anti-Court Initiatives and Demonstrating High Performance By David Rottman Ballot initiatives in four states sought fundamental, and in one state revolutionary, change to their judicial branch of government. All four were defeated at the polls but similar efforts are expected in the same and other states for 2008. A number of states again featured costly and ugly judicial elections. Also, it was clear that judicial candidates overwhelmingly chose to campaign within tra- ditional expectations of what is appropriate in a fair and impartial court system. The state judicial branches in 2006 made significant strides in refining and creating methods for measuring their performance and demonstrating their accountability to the other branches of government and to the public. “High-performing courts” is one label for these efforts. The Year in Review A very public struggle to define how and to whom state cial Grand Jury would hold the ruling judge account- judicial branches should be accountable dominated able “for making decisions which break rules defined the news in 2006. Ballot initiatives designed to uproot by the volunteers [special grand jurors].”1 The amend- the foundations of the American legal system, judicial ment called for retroactive punishment for judges and election campaigns rendered decidedly injudicious by would permit sentences combining actions against national interest groups, and high stakes litigation over the judge’s personal assets and imprisonment. The whether a judge can make promises or commitments final results appeared decisive to most: Amendment to the electorate tell one part of the story. E lost by 89 percent to 11 percent. This did not stop The rest of the story, told with little fanfare, con- the amendment’s backers, who alleged a government cerns steady improvements made to the quality of plot and vowed to fight again in South Dakota and justice dispensed by the state courts. The most signifi- other states. cant breakthrough came in the emergence of high-per- In Colorado, Amendment 40 sought to limit ap- forming courts that demonstrate their accountability pellate judges to a maximum term of 10 years on the through continuous monitoring of their effectiveness bench. Although presented as a judicial reform, the and efficiency. Court reformers took other steps to measure was a thinly veiled attempt to change the po- strengthen court management and to objectively litical makeup of the state judiciary. If passed, the inform the public about judicial performance. measure would have immediately removed five of the current Supreme Court justices. With 57 percent The State Courts at the Polls of voters opposed, Amendment 40 failed. One com- mentator observed of Amendment 40’s proponents Ballot Initiatives that “these troublemakers were egged on by cynical Four ballot initiatives on judicial accountability drew politicians who successfully pander to their base by national attention as the main events of 2006. All four labeling judges as anti-American (or worse) when initiatives sought to redefine judicial accountability to they issue unpopular rulings.”2 advance specific economic, social or political agen- In Oregon, Measure 40 would have switched elec- das. A few individuals and groups from outside the tions of appellate judges from statewide to district- four states funded professional signature collection specific, a move that would have changed the political firms paid on a per signature basis to get measures on composition of the appellate bench. Previously rejected the ballot, and then advertising campaigns. by the electorate in 2002, this measure failed with 56 South Dakota’s Judicial Accountability Initiative percent of the voters opposed. Law for Judges, unofficially “J.A.I.L. 4 Judges” and In Montana, a citizens’ initiative to permit recall “Amendment E” on the ballot, headlined the news. of a judge “for any reason acknowledging electoral The brainchild of a California resident, Amendment dissatisfaction” was struck from the ballot due to E sought to allow any disappointed civil litigant or fraudulent practices used to collect the qualifying convicted criminal to challenge the judge’s decision number of signatures.3 Voters in nine other states before an extra-judicial Special Grand Jury. The Spe- considered changes to their courts. Some changes The Council of State Governments 249 05-C5-Book.indb 249 5/7/07 4:17:12 PM STATE COURTS sought to reduce judicial discretion. North Dakota the law. Carol Hunstein also voted to throw out voters defeated a measure to end judicial discretion evidence that convicted a cocaine trafficker; her in family cases by requiring judges to grant joint legal colleagues overruled her. Hunstein even ignored and physical custody to both parents and to place lim- extensive case law and overruled a jury to free its on child support, regardless of the facts in a case. a savage rapist. If liberal Carol Hunstein wants Other ballot initiatives defused traditional flashpoints to make laws, she should run for the legislature between the legislative and judicial branches. Vot- instead of judge. ers in Hawaii and in Missouri adopted changes that removed judicial pay from the political process. The Hunstein campaign responded: Judicial Elections Announcer: We expect only experienced judges to serve on Georgia’s Supreme Court. But Mike Wig- Thirty-nine states use elections as one form of ju- gins has never tried a case. We expect our Supreme dicial accountability.4 Contested elections filled 46 Court to uphold Georgia values, but Mike Wiggins state supreme courts seats. In Alabama, Kentucky and was sued by his own mother for taking her money. Nevada, three of the 35 incumbents were defeated, He sued his only sister. She said he threatened to and 18 ran unopposed. Two open seats were filled by kill her while she was eight months pregnant. A candidates without an opponent. All 18 justices fac- judge ordered Wiggins never to have contact with ing retention elections were retained. The post-2000 her again. Mike Wiggins. The wrong experience. trend of “nastier, noisier and costlier” judicial elec- The wrong values for the Supreme Court.8 tions continued. Alabama, Georgia, Kentucky and Washington Hunstein won 63 percent to 37 percent. hosted truly nasty, noisy and high-cost races. The The elections took place in an atmosphere already race for the chief justice of Alabama, where would-be poisoned by media frenzies set off by radio and tele- judges compete for seats through partisan elections, vision talk show hosts who attacked a judge based on exemplified the new politics of judicial elections. a single decision. Ohio trial judge John Connor was Preliminary figures put the total cost of the race at attacked by a nationally syndicated television com- more than $6 million. The incumbent chief justice mentator as the “worst judge in America.” This use of survived a primary challenge by another justice on invective is unexceptional nowadays, but the haste with his court, only to lose the general election by a nar- which the state’s Governor and Speaker of the House row margin to a Democrat.5 called for the judge’s impeachment is not. Reason pre- Much of the venom and cash in 2006 elections can vailed and Judge Connor remained on the bench.9 be attributed to continuous efforts by national special In the federal courts, the fight focused on what interest groups in pursuit of their policy agendas. A judicial candidates can say to promote their election. cover story in BusinessWeek documented the ways The litigation stemmed from an increasingly com- in which contention among large business interests mon campaign survey technique. Groups, mainly have transformed judicial elections.6 Many negative but not exclusively from the religious right, sent out advertisements could be traced to one side in the questionnaires requesting candidates to express their decade-long struggle between large corporations and views on social, political and legal controversies and the plaintiffs’ bar over tort reform. The U.S. Chamber on previously decided cases. Most questions used of Commerce, in effect, declared victory, noting that a multiple choice answer format. Options included 80 percent of the candidates they supported won.7 “refuse” or “decline.” A lengthy footnote with cita- A Georgia race, in which a lawyer, supported by tion to federal court opinions distinguished those the business-funded Georgia Safety and Prosperity options, linking them to the U.S. Supreme Court’s Coalition, challenged a sitting supreme court justice, 2002 decision in Republican Party of Minnesota v. exemplifies the bare-knuckle fights through televi- White and more recent lower court rulings on what sion negative advertisements. Two weeks before the judicial candidates can say and do.10 If a candidate election, local television stations aired the following “declines,” a First Amendment lawsuit likely follows advertisement: challenging the state’s Code of Judicial Conduct as a restriction on a candidate’s first amendment rights. Announcer: On Georgia’s Supreme Court, liberal The Third, Seventh, Tenth, and Eleventh Circuit Carol Hunstein has made a habit of ignoring laws Courts of Appeal are currently hearing challenges she doesn’t like. Hunstein substituted her prefer- to traditional limits on judicial candidates’ conduct. ences on capital punishment for those who made United States District Court challenges are pending 250 The Book of the States 2007 05-C5-Book.indb 250 5/7/07 4:17:13 PM STATE COURTS in Arizona, Kentucky and Wisconsin. Attorney James formance measurement systems and offers a balanced Bopp, who served as counsel to the groups distribut- set of applicable measures that tell courts, legislatures ing questionnaires in all of these cases, predicts that and the public if courts are effectively and efficiently judges will be allowed to express opinions, endorse using public resources. The 10 evaluative criteria in- candidates and solicit donations.11 The ultimate fate clude court user ratings of court accessibility and of of the litigation may lie with the Supreme Court.