Appealing in Nevada : Nevada Appellate Lawyer & Attorney : Tami D. Cowden : Nevada Supreme Court, Ninth Circuit Court of Appeals

That was the conclusion today of the U.S. Supreme Court’s  ruling in Caperton v. A.T. Massey Coal Co.. The Court found that the failure of a  judge on West Virginia’s highest court to recuse himself from a matter in which a sizable donor  to the judge’s election campaign had in interest violated federal due process. I've mentioned this case before: Recusal required due to future campaign contributions?

The Court considered the facts from this case extreme. The donor had contributed $3 million to the judge’s campaign, an amount greater than all other donations combined, and made the donation  after his company had been hit with a $50 million judgment. The recipient of the donations defeated the  incumbent by fewer than 50,00 votes. The judge declined to recuse himself from hearing the matter, and the Court subsequently reversed the judgment on a 3 to 2 decision.

Justice Kennedy authored the 5-4 decision.

As we might have expected, Roberts, Scalia, Thomas and Alito dissented.

Regardless of actual bias, there will always be fears of bias when judicial elections can so easily be influenced by an infusion of cash donations to one candidate or another. In the Caperton decision, the Court noted the potential psychological effect of sizable donations upon the judge.

Such risks are considerably decreased under a merit selection system. Assorted changes in my own life (such as moving to a new firm, etc) have caused me to be remiss in applauding the Nevada Legislature for its second passage of the SJR2, which proposes an amendment to the Nevada Constitution to allow for merit selection and retention elections, rather than elections to select judges.

If the voters show the same wisdom, then the fear of bias resulting from donations to judicial campaigns won’t be an issue in Nevada.  I doubt we have any examples from Nevada with the same extreme facts as in Caperton, but enlighten me if I am wrong.

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As readers here may know, I am not a fan of selecting judges through election.  Judges have enough to do interpreting law; worrying about whether interpretations are popular or nor should not be a part of that. 

Besides, unlike other  political candidates, judicial candidates aren't safe targets for my ridicule.   At least, not as long as I still represent clients.

But despite my misgivings about electing judges,  I also believe in making the systems we have work as best as they can for as long as we have them.  To that end, I believe information about judicial candidates is a good idea. 

Harmful Error has begun compiling links to candidate websites.  I won't duplicate Jonell's list, but I will try to keep readers informed about events where you can meet candidates--an effort that would be aided, obviously, if people let me know about such events. . .

I am thinking of having a contest for best candidate site.  What do you think?

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The R-J reported on Monday's meeting of the Nevada Supreme Court's Article 6 Commission in Buckley: Judge selection plan faces challenges.

Ty Cobb, a member of the commission identified as the father of the Aseemblyman of the same name, stated he expected the commission would support both of the constitutional resolutions (merit selection and creation of an intermediate appellate court) involving passed by the 2007 legislature.  Paula Gentile, commission co-chair, doubted that all members would supoprt merit selection.

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Today, in “Don't show her 'Missouri Plan,'” the Sun reports on Judge Elizabeth Halverson’s interaction with last week’s CCBA monthly luncheon speaker Doreen Dodson, chair woman of the American Bar Association 's Judicial Independence Committee. 

I was present at the CCBA luncheon and thought Judge Halverson’s participation added greatly to the presention.  Before taking questions, Ms. Dodson specifically addressed strategies to deal with hostile questions. Judge Halverson provided her with an excellent opportunity to  demonstrate those skills.  

Lest there be any doubt, I am an unabashed supporter of merit selection for judges. The plan approved by the Nevada Legislature this past session is, save for the 55% retention vote requirement,  very like that used with much success in Colorado for some decades. The Nevada version, like Colorado’s, includes performance reviews by a Judicial Performance Commission, which insures voters have relevant information available in making a retention decision.  I urged the adoption of just such a plan in my October 2006 Communiqué article, “Selecting Judges: Making Informed Choices.”  Kudos to the legislature for taking the first step toward helping Nevada’s judges maintain their independence of big money interests.

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The New York Times today has an editorial entitled “The Best Judges Business Can Buy. The editorial cites a new study of campaign contributions to state judicial elections released by the Justice at Stake Campaign, the Brennan Center for Justice and the National Institute on Money in State Politics.  The study reports that victory coincided with the most money raised for the campaign in 68% of the elections in 2006.

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The Halverson v. Hardcastle dispute provides wonderful ammunition for supporters of merit selection of judges. John C. Smith at the R-J weighs in again today with “As justice center rumbles, the case for appointing judges grows by the day.”

 The Sun offers this editorial: Turmoil in the Courthouse.

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The change in the filing date for candidates to most judicial positions from May to January prompted a proposed change in the fund raising rules. On Friday, the Nevada Supreme Court filed a petition for a rule change to prohibit judicial candidates from soliciting and receiving contributions unless they draw a challenger. The Court will set a hearing to obtain public comment about the suggested language of the rule change.  AB 505 was not the only proposed change to the Nevada's judicial selection process considered by the legislature this session.   SJR 2 proposes a change in the constitution to switch to a merit selection system.  However, AB 505 has the advantage of offering some immediate alleviation of the campaign financing requests, whereas, the proposed constitutional amendment must not only survive this legislative session, but if approved, must passed in another session, and then be approved by voters, making reform in this decade an impossibility. 

The change in the filing date, approved by the Nevada Legislature in AB 505, was signed into law by Governor Gibbons May 18. The filing period for all non-judicial elections remains unchanged. The filing deadlines for Municipal Court judges, who face voters in different years and on different election cycles than state and county judges, were not changed.

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John Fund presented an op-ed in the Wall Street Journal on Saturday, speculating that voter acceptance of increased partisan politics in judicial elections can be explained by judicial decisions that “leave the law stranded.” Fund reports that candidates for state supreme court seats spent more than $40 million in their campaigns in 2006.  In further support of his position,  Fund referenced the famed quote from Chief Justice Robert’s confirmation hearing statement, in which the then-candidate stated “Judges are like umpires. Umpires don't make the rules, they apply them."

The United States of America, as it has from its founding, employs a “common law” system. Black’s Law Dictionary defines “common law as “the body of law derived from judicial decisions, rather than from statutes or constitutions.”  Of course, we have statutory law, as well, but for those of us in civil practice, common law predominates.

Judicial history is a topic rarely, if ever, taught in our primary and secondary schools. As a result, the lack of awareness of the common law system among the general public, and, apparently, journalists,  is not surprising. The average man on the street would likely be stunned to learn that the vast body of civil law in this country comes not from statutes passed by state or federal legislatures, but from centuries of legal traditions brought to these shores from our British forebears. Those legal concepts have passed down through the generations, with each of those generations tweaking and adapting those principles, and developing new principles, as the needs of the populace evolved.

Justice Robert’s apparent unfamiliarity with the concept of common law is less easily explained, as he surely must have been introduced to it at least while he was a law student. In nearly all law schools, the required curriculum is dominated by examination of common law contract, tort, criminal, and property law principles. Any lawyer who expresses surprise at the notion of judges “making law,” rather than merely applying it, must have failed to pay attention in those early years of instruction.  However, in fairness to Justice Roberts, he did acknowledge the concept of precedent in his confirmation hearing statement, even if he apparently didn’t realize that judges have traditionally done more than simply interpret statutory law.

Nevertheless, this longstanding tradition of judge-made law belies the claim that recent sharp increases in campaign spending may be explained by reaction to judge-made law. A far more likely explanation is that well-heeled constituencies have discovered that,  just as with any other type of political candidate, campaign contributions to judicial candidates yield the desired results.

Hat-tip to How Appealing.

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