Reform Proposals

 

I am against judicial reforms driven by nakedly partisan reasoning…. We must be ever-vigilant against those who would strong-arm the judiciary into adopting their preferred policies. It takes a lot of degeneration before a country falls into dictatorship, but we should avoid these ends by avoiding these beginnings.” – Sandra Day O’Connor

The current state of Ohio’s system of judicial election is putting the legitimacy of our judicial system at stake.

When the public believes that their judges can be bought, that they are beholden to campaign donors, or that their decisions are influenced by special interests or other branches of government, our respected system of justice is jeopardized.

Options to improve the process of selecting impartial and qualified judges in Ohio is a major topic of judicial reform. Judicial reform can take the partisanship and special interests out of judicial elections. It can help guarantee both the appearance and the reality of an independent and impartial judiciary.

Commonly discussed reform options include:

  1. Prohibiting judges from presiding in cases that involve their campaign contributors;
  2. Increasing the qualifications needed to run for judicial office and the length of judicial terms;
  3. Publicly financing judicial elections;
  4. Selecting judges through “merit selection,” also called “appointive-elective selection”; and
  5. Creating a concerted voter-education program about judicial candidates.


Prohibiting Judges from Presiding in Cases That Involve Campaign Contributors

Ohio’s Code of Judicial Conduct requires that judges recuse, or disqualify, themselves from cases where a reasonable person might question the judge’s impartiality. For example, such a conflict might arise if a judge had prior involvement in a case as an attorney, is a friend or family member of one of the people involved, or has an economic interest in the proceeding—including, many believe, if the judge has received substantial financial support from a person or entity involved in the case.

Indeed, a League of Women Voters of Ohio survey (see pages 24-26 in “Judicial Selection in Ohio: History, Recent Developments, and an Analysis of Reform Proposals.”) in 2002 revealed that eight of every 10 Ohioans believe campaign contributions influence judges and their judicial opinions. In addition, enormous amounts of money are spent on judicial campaigns in Ohio by candidates, political parties and by special interests. It is natural that voters may question judges’ impartiality in cases that involve financial supporters.

However, Ohio’s elected supreme court judges rarely disqualify themselves from cases involving their contributors. From 1994-2006, “[i]n the 215 cases with the most direct potential conflicts of interest, justices recused themselves just 9 times.” Adam Liptak and Janet Roberts. “Campaign Cash Mirrors a High Court’s Rulings.” NewYork Times (page 1); October 1, 2006.

Why not simply require that judges recuse themselves from cases involving their financial supporters?

This proposal raises difficult questions. For example, what should the standard for recusal be? Should it relate to any financial contribution, no matter the size? Should we consider only one year’s contributions, or total contributions over the years? With so many contributors to judicial candidates, many judges believe a requirement to disqualify themselves from cases involving their contributors “would wreak havoc on the system.” Adam Liptak and Janet Roberts. “Campaign Cash Mirrors a High Court’s Rulings.” NewYork Times (page 1); October 1, 2006.

Ohio’s Code of Judicial Conduct (see Canon 7) already sets strict requirements on judicial candidates’ fundraising per election cycle, including:

  • Strict limits on campaign contributions (the limits vary by judicial office sought);
  • Strict prohibitions on candidates’ direct involvement in fundraising; and
  • Strict disclosure requirements for contributors and contributions (“hard money,” which is regulated) to judicial campaigns.

But—there is no requirement that judges recuse themselves if a case involves a campaign contributor. Voters are to determine if there appears to be a link between campaign contributions and judicial rulings. And what about the “soft money” spent by special interest groups, which constitutes the bulk of the money spent in Ohio in the 2000, 2002 and 2004 Supreme Court campaign cycles? Soft money does not go directly to a candidate’s campaign and is therefore not regulated. However, soft money can indirectly assist a judicial candidate even though the money cannot be spent specifically advocating for that candidate’s election.

Consider, for example, the anti-Resnick ads paid for by special interest groups in the 2000 Supreme Court election. Because the ads did not advocate for the election of Justice Resnick’s opponent and were not paid for by the opponent’s campaign funds, the opponent did not—and could not—report the source of the money used for the ads. Nor would the opponent have had to recuse himself because of a conflict of interest should the special interest groups later appear in cases before him.

In sum, with no direct link between a candidate and soft-money contributors, how does a candidate—and how do the voters—really know if a judge has a conflict of interest that may threaten the judge’s impartiality in a case? In the end, if the voters believe a judge’s ruling is influenced by supporters (whether special interest or not) rather than the rule of law, voters have the right to elect someone else.


Increasing the Qualifications Needed to Run for Judicial Office and the Length of Judicial Terms

In 2006 testimony to the Ohio House Judiciary Committee, Chief Justice Thomas Moyer of the Supreme Court of Ohio argued that the judicial qualifications and years of service for judges between campaigns should be increased. An attorney is eligible to run for judge after practicing law for only six years. Requiring more years of experience and classes on judicial conduct could result in more candidates of higher caliber. Moyer testified, “[Six years] is simply not long enough. Ohio is at the low end of the spectrum nationally, and this would be one of the easier steps we could take to enhance the current system.”

Currently, judicial terms are six years for all state judges. Increasing the length of those terms would allow judges to focus on their work for a longer period of time, uninterrupted by the need to raise campaign funds. In addition, for judges who must make controversial decisions, it would tend to put some additional “distance” between those decisions and reelection campaigns, thereby increasing judicial independence.


Publicly Financing Judicial Campaigns

Publicly financing judicial campaigns would reduce the pressure on judicial candidates to raise money. It would also help eliminate the pressure for—and the appearance of—quid pro quo decisions resulting from special-interest contributions to judicial candidates. Candidates would not have to rely so heavily on campaign donations if tax dollars could be used to help them get their message out to voters. 2001-2005 LWVO President Terry McCoy argued that public funding of elections would help avoid smear campaigns and attack ads because judicial candidates would not have to raise significant sums of money and thus would not be beholden to campaign contributors.

Deborah Goldberg reviews the issues and outlines three options already used for public funding in non-judicial campaigns in “Public Funding of Judicial Elections: The Roles of Judges and the Rules of Campaign Finance”:

  1. Provide refunds or tax credits to supporters for contributions up to a fixed per-person limit;
  2. Provide the candidate with public funds to match private contributions up to a fixed amount per contribution; and
  3. Publicly fund the campaigns of judicial candidates who are able to raise a minimum number of very small private contributions. Candidates under this system would accept no private funds once they have reached the threshold qualifying for program participation.

Goldberg concludes that optimal judicial campaign finance reform would include public financing of judicial campaigns and full disclosure of spending by interest groups. But a key question remains: what will be the source of the public funds?


Merit/Appointive-Elective Selection of Judges

Many states continue to elect some or all of their judiciary. Ohio elects all state judges. All judges appointed by the governor to complete judicial terms must face election at the end of their appointed terms.

However, Ohio’s system of selecting judges has not reduced the partisanship and influence of special interests that threaten judicial fairness, impartiality and independence. When raising the most money is increasingly related to winning judicial elections, regardless of the candidates’ qualifications, it is appropriate to consider alternative methods of selection.

In contrast to Ohio’s judicial elections and partisan-appointments process, the American Bar Association (ABA) advocates for a nonpartisan or bipartisan appointive-elective—or merit—selection appointment process used by the majority of states for some or all judicial offices. Learn more. In this system, judges are chosen based on their qualifications; that is, they are selected on merit. This typically involves a governor appointing a judge to office, having selected her/him from a small group of candidates recommended by a nonpartisan or bi-partisan screening committee. The appointed judges are then required to periodically stand for retention election.

Although merit selection or appointive-elective process cannot entirely remove politics from the process, the ABA believes that merit selection reduces the influence of special interests, increases judicial independence and enhances the pool of viable candidates who might otherwise choose not to participate in a contested and enormously expensive campaign. The American Judicature Society’s overview, Merit Selection: The Best Way to Choose the Best Judges notes that:

  • Merit selection sifts out unqualified applicants and identifies the most qualified;
  • Judicial candidates can avoid the potentially compromising process of party slating, raising money and campaigning;
  • Professional qualifications are emphasized and political credentials are de-emphasized;
  • Judges chosen through merit selection don’t find themselves trying cases brought by attorneys who gave them campaign contributions; and
  • Highly qualified applicants will be more willing to be selected and to serve under merit selection because they will not have to compromise themselves to get elected.


Creating an Intensive Voter-Education Program About Judicial Candidates

Informed voters are a crucial part of judicial reform. Key ways voters can gain accurate knowledge about a judicial candidate include:

  1. Using and expanding the reach of voter guides;
  2. Participating in candidate forums;
  3. Understanding that judicial scorecards can be misleading; and
  4. Accessing other sources of candidate information and qualifications.


Use and Expand the Reach of Voter Guides

Testifying before the American Bar Association’s Commission on Public Financing of Judicial Campaigns, Professor Roy Schotland noted that “the effectiveness of voter guides was reflected in exit polling data, which shows that ‘voters regard [voter pamphlets] as their favorite source of information.’”

Wide distribution of nonpartisan voter guides will help voters make better decisions and counter special interests by providing more information than paid ads do. Posting the voter guide in organizational newsletters can promote the possibilities for judicial reform.

Nonpartisan League of Women Voters of Ohio Education Fund voter guides are available through the League of Women Voters and other local Leagues offer nonpartisan voter guides with information about local judicial candidates.


Participate in Candidate Forums

One of the best ways to learn about judicial candidates in your area is to attend a candidate forum or invite candidates to speak to your group. Judicial candidates can answer questions about their knowledge, judicial philosophy, effectiveness, character and experience. Examples of questions that a candidate should be able to answer are included in the following:

  • Judicial philosophy: What do you perceive as the greatest obstacles to justice, if any? To what extent do you believe that a judge should or should not defer to actions of a legislature?
  • Effectiveness: What criteria would you use for deciding whether to impose or affirm sentences outside of standard ranges? What are your views on whether the court, as a whole, deals effectively with racial and gender bias?
  • Character: Describe one instance in which you faced an ethical dilemma and how you resolved it.
  • Experience: As a prospective judge, what do you consider your greatest strengths? Weaknesses? To what extent have you practiced in the area of criminal law? Family law? Complex civil litigation?


Understand That Judicial Scorecards Can be Misleading

During election time, many groups sponsor campaign advertisements featuring “scorecards” that rate judges based on their decisions in certain court cases. These “scorecards” are not reliable for two reasons:

  1. Judges issue hundreds of rulings each year, yet a very small number is used as the basis for these evaluations; and
  2. These ratings are based on the false idea that a judge’s decisions are choices that favor one political viewpoint over another.

In reality, judges apply the law to the facts of a case and then make decisions that, in many cases, they would not choose as a matter of politics, policy or personal viewpoint. To look at a judge’s decisions and infer something about that person’s individual political beliefs is to paint a false picture without knowing all of the facts.


Accessing Other Sources of Candidate Information and Qualifications

Any judicial performance evaluation should be based on criteria relevant to how a judge performs in office. A few examples of relevant criteria are integrity, legal knowledge, professional experience and professional conduct. Sources of such information include:

  • County boards of elections;
  • Local and state bar associations;
  • Civic leagues;
  • Local and state “good-government” organizations;
  • www.sos.state.oh.us/Secretary of State of Ohio; and
  • Endorsements: If a candidate is endorsed by a certain group or organization, contact that organization and request information as to why it endorses that candidate and the criteria on which its endorsement is based.