National Perspectives

The challenging issues facing our courts are not unique to Oregon. Throughout the United States, judges are vulnerable to intimidation and the corrupting influence of money as judicial elections become increasingly politicized.

Removal from Office for Specific Decisions

"The last decade has seen a dramatic increase in not only the threats to impeach state court judges because of their decisions, but the actual drafting of legislation to that effect. Legislatures are not even in session, yet two additional efforts are already underway in Iowa and Oklahoma for their 2011 sessions. The following state legislative efforts are underway to impeach or remove judges based solely on their decisions."


From the National Center for State Courts, (NCSC)


2011


Oklahoma: HR 1001 requests judge Thomas Bartheld be removed from office after he accepted a plea deal in a child molestation case that was approved by the prosecution, the defense and the victim's parents.


Iowa: Incoming legislators plan to introduction articles of impeachment against four justices of that state's Supreme Court who ruled in favor of same-sex marriage. The other three justices of the unanimous court decision were voted out of office in November 2010 because of a campaign waged by a group opposed to same-sex marriage.


2010


Arizona: HB 2379 & SB 1026 prohibited use or citation of religious sectarian law or foreign law. Usage or citation was declared to be grounds for impeachment.


Iowa: HB 2313 prohibited judges from using "judicial precedent, case law, penumbras, or international law as a basis for rulings." Requires judges use only the U.S. and Iowa Constitutions and the Code of Iowa in making decisions. The bill permitted use of the Federalist papers and other writings of the founding fathers, but only "if such source material is used in full context." It also prohibited any court from reviewing the legislation and made such an effort, or any violation of the act, grounds for impeachment.


Oklahoma: HR 1065 requested judge Thomas Bartheld be removed from office after he accepted a plea deal in a child molestation case that was approved by the prosecution, the defense, and the victim's parents.


2009


Florida: SB 1142 redefined "official misconduct" for state ethics purposes to include a judicial officer's "Render[ing] any ruling, opinion, action, or inaction adverse to the doctrines of stare decisis, binding precedent, or the supremacy clause of the United States Constitution when he or she is clearly apprised of evidence, unless he or she has the authority to overrule or recede from the rule of law, or distinguishes the rule of law or sets forth some other intervening or superseding evidence, and does so by the ruling, opinion, action, or inaction." The bill would have required state attorneys and law enforcement "strictly enforce without discretion" the provision.


Minnesota: HB 1632 sought to replace the state's Board of Judicial Standards with 8 randomly selected citizens, plus 2 people selected by the House and Senate. HB 1632 provided the Board the power to sit in review and judgment of court decisions and remove a judge from office if the Board overturned judge's ruling. It further provided any determination of the Board as to the legality/constitutionality of the jurist's removal was deemed unappealable to any court but could be "appealed" to the state legislature.


New Hampshire: Three separate efforts were made to remove by bill of address judges and quasi-judicial officers due to their rulings in family and matrimonial cases. HA 1, filed against marital master Michael Garner, accused him of "recommended[ing] to the presiding justice (Judge Sadler, see below) an order removing a child from an educational setting on the basis of religious prejudice." The case surrounds a divorce case and a child, identified only as "Amanda," who was being home schooled by her mother, while her father wanted the child placed in public school. According to media reports, Garner evaluated the home schooling situation. On July 13, 2009, he issued his recommendation, stating "The Court is extremely reluctant to impose on parents a decision about a child's education" but ultimately deciding, based on the testimony of the parents and a Guardian Ad Litem, that it was in "Amanda's best interests to attend public school."


HA 2 was lodged against Judge Lucinda Sadler for her role in the home schooling order. Sadler was also cited for her role in as many as 6 other child support and custody cases.


HA 3 focused on Marital Master Philip Cross. While details were not provided as to specific case number or names in the bill of address, the charges appear to duplicate most of those found in the bill of address Judge Lucinda Sadler but do not involve the "Amanda" case for which Sadler and Marital Master Michael Garner face the prospect of being removed from their respective offices.


U.S. Supreme Court rules on campaign contributions and recusal requirements

The U.S. Supreme Court’s decision in June 2009, in the Caperton v. Massey case, originating in West Verginia, ruled that elected judges are required to withdraw from considering cases when parties to those cases have made substantial contributions to their election campaigns.


H. Thomas Wells Jr., President, American Bar Association stated, “The court established standards for clear violations of due process, cases where the campaign contributions are so large, so important, or so closely tied to a pending case as to ‘imperil public confidence in the fairness and integrity of the nation’s elected judges.’ But instances remain where campaign contributions raise suspicions that justice leans to the highest bidder. Studies show the public and even many judges themselves believe campaign money from litigants and from their lawyers influences judicial decisions. “Courts rely on public confidence in the fairness of our legal system to foster willing compliance with their rulings. When confidence succumbs to cynicism, our government is at risk. The pervasive influence of money on judicial election campaigns threatens to create a crisis of confidence in our state court systems” (LINK)


The American Judicature Society, a nonpartisan organization with a national membership of judges and lawyer, applauded the Supreme Court’s decision and provided an alternative to contested election of judges: merit selection. “The core features of a merit selection system, outlined by the American Judicature Society’s Model Judicial Selection Provisions, (LINK) to the underlined language: provide for a broadly-based commission to nominate the best-qualified people for appointment to the bench … No statewide merit selection system has ever been abandoned in favor of returning to contestable judicial elections.”


The Brennan Center for Justice

Justice Brent Benjamin of the Supreme Court of Appeals of West Virginia refused to recuse himself from the appeal of the $50 million jury verdict, even though the CEO of the lead defendant spent $3 million supporting his campaign for a seat on the court—more than 60% of the total amount spent to support Justice Benjamin’s campaign—while preparing to appeal the verdict against his company. After winning election to the court, Justice Benjamin cast the deciding vote in the court’s 3-2 decision overturning that verdict.


“According to Theodore B. Olson, former Solicitor General of the United States and counsel of record for the Petitioners, “The improper appearance created by money in judicial elections is one of the most important issues facing our judicial system today. A line needs to be drawn somewhere to prevent a judge from hearing cases involving a person who has made massive campaign contributions to benefit the judge. We certainly believe that, in this case, acting Chief Justice Benjamin crossed that line.”


“The sole interested source of money, the enormous sums, and the timing of the expenditures in this case constitute an egregious example of a national trend—brazen attempts to purchase influence in pending cases,” said James Sample, counsel for the Brennan Center. “Ted Olson and the petitioners are squarely on the mark—this case is far beneath the floor of the most basic notions of due process.”


U.S. Supreme Court approval rating

The ABA Journal reports that a “new Gallup poll shows that half of Americans believe the U. S. Supreme Court is “about right” ideologically, an all-time high and an increase of 7 percentage points over last year. Sixty-one percent of Americans surveyed approve of the job done by the U.S. Supreme court, the highest level since 2001...”


The Philadelphia Bar Association recently published an article, “The 10 Worst Supreme Court Decisions” that we found interesting and thought you would too.

Copyright 2010, Philadelphia Bar Association. Used with permission.


Judicial races reveal power of special interests

Chicago Tribune, July 28, 2008:

“Sixty-six percent of Americans can name at least one judge on the popular TV show ‘American Idol,’ while only 15 percent can identify John Roberts as chief justice of the Supreme Court. That’s according to a poll showing Americans are largely clueless when it comes to knowledge of the nation’s judicial system.


“Yet special-interest lobbies—from business groups to labor unions and trial lawyers—know very well who is running for state Supreme Court seats around the nation because they are pouring unprecedented millions of dollars into these formerly obscure races, with the intent of electing justices who will advance or protect their financial interests.”(LINK)


Wisconsin breaks campaign spending record

According to the Wisconsin Democracy Campaign, the 2008 Supreme Court race in that state set a record for campaign costs, with a total of nearly $6 million spent.(LINK)


Even more troubling is the percentage spent by third-party groups, which are not required to disclose their funding sources. $4.8 million was spent by special interest groups like “Wisconsin Manufacturers & Commerce,” the “Greater Wisconsin Committee,” the “Coalition for America’s Families“ and “Club for Growth Wisconsin.”

Judicial elections in Alabama involve enormous sums

Justice at Stake's Gavel Grab notes that, in Alabama, every dollar raised for judicial election campaigns comes from private contributions. Every dollar spent on civil representation for poor citizens also comes from private donations. Sadly, donations to judicial campaigns are more than double the amount spent to fund civil justice for the poor. (LINK)

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