With scathing criticism of Citizens United’s “destructive fallout” for elected state courts, retired Montana Supreme Court Justice James Nelson is calling for a switch to merit selection of his state’s judges, before a “real train wreck” occurs.
In the February edition of Montana Lawyer, Justice Nelson writes a lengthy and detailed plea for a switch to merit selection, beginning with his own admission that for years he strongly supported electing Montana judges and justices. The impact of Citizens United and a $1.63 million contest for one Montana high court seat last year have helped make him a “true believer” to the contrary, he says. His top critiques of Citizens United follow:
“First, Citizens United discourages qualified attorneys from running for judicial office. … Why would a qualified and experienced attorney choose to run for a judicial office that pays a fraction of that in the private sector; that requires the candidate to raise and spend a small fortune; and that demands the candidate, for months on end, subject herself or himself (along with their families) to a barrage of lies, misinformation and abuse from out-of-state organizations that know nothing — and care less — about the targeted candidate, Montana, its people or its Constitution and laws?
“Second, Citizens United actually encourages unqualified and inexperienced candidates to run. These types know that if they play to the out-of-state dark money folks; that if they promote the party or special interest agenda as their raison d’etre for running; and that if they mislead, dissemble and conceal their true selves, platform and motivation, then they will be able to count on the support and mega-bucks of the likes of the Republican State Leadership Committee, the Koch Brothers and the U.S. Chamber of Commerce.”
A bill under debate in the Montana legislature would require a judge to step aside from hearing a case if he or she received $35 in campaign donations from a party or lawyer involved in the case, according to Gavel to Gavel.
According to an Associated Press report, “A slate of judges, attorneys and a representative of the State Bar of Montana opposed the measure. They argued that widespread disqualification would ensue under HB 255 given the high number of attorneys that contribute to campaigns.”
Justice at Stake has called in general for more rigorous recusal rules, in order to protect fair and impartial courts when judges are elected. JAS Executive Director Bert Brandenburg wrote in a Chicago Tribune op-ed in September 2011: Read more
After a high-spending Montana Supreme Court contest, incumbent Justice Mike Wheat won a new term over challenger Lawrence VanDyke. In addition, incumbent Justice Jim Rice defeated challenger W. David Herbert.
Total TV ad spending in the election rose to a record $291,280, fueled by checks from national groups like the Republican State Leadership Committee (RSLC) and Americans for Prosperity, as well as Montanans for Liberty and Justice, supported by trial attorneys.
“It’s a sad day when non-candidate spending is the headline in a contest for a seat on Montana’s Supreme Court,” JAS Executive Director Bert Brandenburg said in a statement. “People want judges to answer to the law and the constitution, not outside interest groups.” Read more
Americans for Prosperity has jumped into a Montana Supreme Court race, joining three other outside groups spending to influence the outcome of the contentious contest on Nov. 4.
The Missoulian reported that Americans for Prosperity-Montana has begun airing TV and radio ads critical of incumbent Justice Mike Wheat, who is facing challenger Lawrence VanDyke. Americans for Prosperity was founded by billionaire brothers David and Charles Koch. The Montana branch of the national groups is initially spending $85,000 on ads in opposition to Justice Wheat.
The advertising says the justice “has a history of supporting extreme, partisan measures” and cites his actions in the legislature as well as a dissent he issued when on the bench. Justice Wheat fired back that the advertising was “pure politics,” amounted to “garbage” and did not truly indicate his judicial record or character. Read moreNo comments
The politics and money in a testy race for the Montana Supreme Supreme Court are threatening to overwhelm other issues. That’s a conclusion that can be drawn from an Associated Press article entitled, “Montana Supreme Court race takes on partisan edge.”
The challenger is former state solicitor general Lawrence VanDyke. He is “trying to cast Justice Mike Wheat as a liberal activist judge as his Republican backers pour tens of thousands of dollars into ads to support that message,” the AP said.
Justice Wheat retorted, “Our court system is under attack from out-of-state money. When it’s over, I guess they will spend somewhere around $1 million. Why in the heck would they do that? Because they want a court that is not fair and balanced, a court that is going to make decisions more to their liking.” Read moreNo comments
Political flyers are arriving in mailboxes and PAC money is flowing. This year’s Montana Supreme Court election is “shaping up to be the most hotly contested, expensive and partisan race for the … Court the state’s ever seen,” the Missoula Independent reports.
The article documents registration by three political action committees interested in the contest (see Gavel Grab) and notes that the Washington-based Republican State Leadership Committee, which is affiliated with one of the PACs, was mentioned in a recent op-ed by six retired state Supreme Court justices.
“These various groups and organizations are inundating non-partisan judicial elections with staggering amounts of cash to accomplish their goals and to politicize otherwise non-partisan judicial races,” the retired justices wrote. “Unfortunately, it has been demonstrated that the amount of expenditures and contributions to judicial races correlates directly with how a benefiting justice votes on cases.” Read moreNo comments
Two outside groups — including a national Republican group — have begun airing TV ads in Montana’s Supreme Court election. Justice at Stake and the Brennan Center for Justice, a JAS partner organization, said the Montana expenditures are part of soaring out-of-state spending in judicial elections.
“The appearance of outside spending opens a new chapter in Montana’s Supreme Court race, especially as it includes a national group airing its first TV ads in this fall’s state Supreme Court elections,” said JAS Executive Director Bert Brandenburg in a statement. “Montana is the fourth state this year to be caught up in the explosion of spending by out-of-state groups in judicial races.”
“The flood of special interest spending in state judicial elections is truly alarming,” added Alicia Bannon, Counsel at the Brennan Center. “When outside groups spend money to reshape state courts, everyone loses. Judges are forced to compete with deep-pocketed special interest groups. Montanans who appear before the court have to worry whether a judge is being influenced by special interest dollars. We need to keep politics out of our courts.” Read moreNo comments
Incumbent Justice Mike Wheat said, according to the Great Falls Tribune, “I don’t want to let us forget what this race really is all about. It’s about how our court may be under attack from out-of-state money, from out-of-state corporations who want to come into this state and influence who’s going to be on the court.”
Challenger Lawrence VanDyke retorted, “I do believe in free-speech rights of organizations to say what they believe. The issue is whether or not the trial lawyers are going to be the only ones who are spending money.” He said the Montana Trial Lawyers Association is expected to spend “high six digit figures” in support of Justice Wheat. Read moreNo comments
“Montana’s judiciary must not be forced onto the auction block,” retired state Supreme Court Justice James Nelson writes in an outspoken Montana Standard op-ed. Signing the opinion with him were retired Justices Terry Trieweiler, Jim Regnier, Bill Leaphart, Bill Hunt and John (Skeff) Sheehy.
Tracing special interest and partisan spending in recent supreme court elections held in other states, and the pouring of “dark money” into judicial elections in the wake of Citizens United, Justice Nelson says the same trends could affect Montana judicial elections and have a frightening impact.
“No Montanan wants to litigate in a court where the fix is in because the judge or justice is beholden to those who spent him or her onto the bench,” he writes. “Montanans deserve fair, impartial, independent and non-partisan judges and justices elected by Montana voters—not political hacks, bought and paid for by out of state dark money. Our civil justice system is at stake.” Read moreNo comments
District Judge G. Todd Baugh of Montana, facing censure and a 31-day suspension from the state Supreme Court (see Gavel Grab) after he said a 14-year-old rape victim seemed “older than her chronological age,” says he is receiving an unprecedented punishment.
The justices took the unprecedented action of ordering his suspension when the Montana Judicial Standards Commission had not recommended it, Judge Baugh said in documents submitted to the high court, according to Reuters.
“Thus, I think, the imposition of suspension which was not recommended by the commission is unwarranted,” Judge Baugh wrote. “I will not object to you withdrawing the suspension.”No comments