Gavel Grab

Archive for February, 2009

Ohio Bar President Cites JAS in Recusal Message

Gary LepplaThe Ohio State Bar Association (OSBA) has called on the U.S. Supreme Court to provide new guidance on the issue of judicial recusal in cases involving campaign contributors.

According to a message from OSBA President Gary Leppla, left, the Association has been troubled by   public belief that campaign contributions influence courtroom decisions. As Leppla declares, “While it is our belief that most judges are able to separate their judicial decision-making from any influence of campaign contributions, we are respectful of the need to ensure the public’s trust and confidence in the judicial system.”

The message cites a Justice at Stake/Harris Interactive Poll, which indicates that most adults doubt that judges can be impartial when trying cases that involve major campaign contributors. It also refers to a similar USA Today poll , which said 90% believe judges should not hear such cases.

These findings, Leppla notes, are especially important on the eve of oral arguments in Caperton v. Massey, a case involving a coal company CEO who spent $3 million to elect a West Virginia Supreme Court justice, who later voted to overturn a $50 million jury award against the company. As the U.S. Supreme Court considers the issue of recusal standards for judges, Leppla declared that:

The OSBA hopes that the U.S. Supreme Court’s consideration of the Caperton case will provide new guidance regarding when judges should remove themselves from hearing and deciding cases before them, and in defining the factors that should guide judges in making those decisions.

The U.S. Supreme Court will hear oral arguments in Caperton v. Massey on March 3.

The full survey results of the Justice at Stake/Harris Interactive Poll can be found here.

To find out more about Caperton v. Massey, you can visit the Justice at Stake Caperton resource page.

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Wisconsin Challenger Cites Justice at Stake Poll


A challenger in Wisconsin’s Supreme Court election has cited a new Justice at Stake poll in assailing Chief Justice Shirley Abrahamson’s refusal to remove herself from a case involving lawyers who contributed to her campaign.

Judge Randy Koschnick accused Abrahamson of being unethical by not recusing herself from a medical malpractice case that is to be heard March 5 by the Wisconsin Supreme Court. Lawyers in the case contributed $11,000 to Abrahamson’s election campaign this year against Koschnick, according to the Milwaukee Journal Sentinel’s All Politics Blog.

Koschnick’s statement cited Justice at Stake’s recent poll, according to the Capital Times:

Judge Koschnick discussed a study released on Feb. 23, 2009, by the group Justice at Stake under the title ‘Huge Majority Wants Firewall Between Judges, Election Backers.’ According to the study, 85 percent of those polled believe judges should step aside when parties spend big money to get that judge elected. The executive director of Justice at Stake, Bert Brandenburg, concluded that ‘Americans overwhelmingly believe that campaign cash has no place in the courtroom.’

“Justice Abrahamson has received over $30,000 from attorneys with cases currently pending before the Wisconsin Supreme Court. This amount includes $11,500 from three attorneys handling a medical malpractice case set for argument in March. Justice Abrahamson has Read more

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New Eyes on Justice Released

Justice at Stake has released its newest issue of Eyes On Justice, a biweekly electronic newsletter on issues affecting fair and impartial courts. Topics included in this new edition of Eyes on Justice are:

  • Justice at Stake’s poll on recusal.
  • Interview with ABA Oresident H. Thomas “Tommy” Wells Jr.
  • A new study linking campaign contributions to judicial decisions.
  • A New York Times editorial urging impeachment of Texas Judge Sharon Keller
  • A U.S. federal court decision to allow Wisconsin judges to engage in partisan activities.
  •  Editorials calling for the release of the Uighurs from Guantanamo

Click here to read this week’s edition of Eyes on Justice. To subcribe to Eyes on Justice, click here.

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Calls to Maintain Merit Selection in Arizona

Legislation to end Arizona’s system of merit selection for appointing judges would “inject unnecessary and destructive partisan politics into the judicial system,”  according to an editorial in the Arizona Daily Star.

Under Senate Concurrent Resolution 1020, the governor would appoint judges, subject to Senate confirmation. Nominating commissions would no longer review candidates and submit a slate of potential nominees to the governor, as is currently the practice. While the resolution has only had its first reading, it has already  garnered opposition.

Arizona’s merit selection system has earned high praise from former Justice Sandra Day O’Connor who says it has kept politics out of the courthouse. O’Connor also served as both a trial and appellate judge in Arizona.

Although the state initially held nonpartisan judicial elections, citizens voted to establish merit selection in 1974. Once appointed, judges face periodic retention elections. The Daily Star opinion adds:

Senate confirmations would push an agenda of a party or ideology and would dilute and diminish the independent judiciary, which should not be unduly influenced from the other branches of government.

Our state’s merit-selection and retention system help keeps the courts focused on the law, not politics. Senate confirmation of judges should not be allowed to infest our judiciary.

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links for 2009-02-28

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ACS Posts Video on Caperton Panel


  The American Constitution Society has posted video of its Feb. 26 panel discussion on the Caperton v. Massey case. The discussion, moderated by Indiana University Law Professor (and JAS board member) Charles Gardner Geyh, included Justice at Stake Executive Director Bert Brandenburg, American University Law Professor Amanda Frost, former West Virginia Chief Justice Richard Neely, and former Alabama Supreme Court Justice Harold F. See Jr.

I hope to write more soon on this excellent discussion, but this is what the ACS site says:

On Thursday, February 26, 2009, ACS hosted a press briefing on Caperton v. A.T. Massey Coal Company, et al., a landmark case that is currently before the Supreme Court that will address questions of fundamental due process and the integrity of state courts. Read more

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Brookings Hosts Panel on Immigration and Courts

As the consequences of the Bush administration’s Operation Streamline, an initiative of expanded federal resources to capture illegal immigrants and quickly try their cases in court, surface, questions and complaints concerning immigration and judicial proceedings are becoming more important. Fortunately, proper attention to this growing crisis is now being paid by several groups, including the Brookings Institution, a think tank on issues relating to American democracy, economic and social welfare, and international relations.

On Friday, February 20, Gavel Grab had the pleasure of attending a panel discussion sponsored by Brookings, which featured Judge Robert A. Katzmann of the U.S. Court of Appeals for the 2nd Circuit in New York, Juan P. Osuna, Chairman of the Board of Immigration Appeals, and Andrew I. Schoenholtz, professor of law at Georgetown University. Moderated by Brookings Visiting Fellow Russell Wheeler, the conversation focused on immigration and the courts.

As immigration judges struggle under an overwhelming caseload with inadequate resources, questions about the proper administration of justice for all parties have become prominent. In fiscal year 2007, 214 immigration judges presided over almost 350,000 cases.

Although then-Attorney General Janet Reno began streamlining immigration cases in 1999, John Ashcroft’s more severe regulations and enforcement of immigration laws resulted in a sudden influx of cases to a limited number of judges with limited resources. According to Brookings, in 2007, the average number of cases per immigration judge was an astounding 1,240, compared with 483 for district judges.

As Osuna noted, immigration judges are facing “traffic court volume with Supreme Court consequences.” Read more

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links for 2009-02-27

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Nevada Lawmakers Debate Ending Judicial Elections

Nevada is currently considering legislation that would end judicial elections and implement an appointment system, although it faces some opposition, according to an article in the Reno Gazette Journal.

Saying that it is “demeaning and degrading” to force judges to collect campaign donations from those who appear before them in court, State Senate Minority Leader Bill Raggio urged the Judiciary Committee to amend the Nevada Constitution to establish a system of appointing judges, who would then face periodic retention elections. 

The proposed amendment faces opposition. The article quoted John Wagner of the Independent American Party of Nevada, who said the current judicial election system is effective and that citizens should maintain their right to elect.   Janine Hansen of Nevada Eagle Forum said the judicial selection commission that the resolution would create “‘is a special-interest group. That’s precisely what it will be.’”

Although the joint resolution was passed in 2007, it must be approved again before it can face a public vote in 2010.

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Michigan Court Studies Recusal Issue

The Michigan Supreme Court justices are committed to addressing the issue of recusal, an article by the Detroit Free Press reported.

As Caperton v. Massey, nears its hearing date, the state Supreme Court has paid close attention to the issue of recusal, specifically in terms of any reforms that should be made to the state’s rules on judicial disqualification. The Court is scheduled to discuss recusal in their discussion at a public administrative conference. According to the article, the justices “may propose a rule change and invite public comment at a later time.”

Two of Michigan’s justices  were among the 10 state Supreme Court justices who filed a brief supporting the decision of West Virginia justice Brent D. Benjamin to take part in a case involving a coal executive who spent $3 million to help elect him.  Together, the judges argued that the recusal request would effectively bypass the will of the people electing the judges and that the primary concern is “‘whether the increased spending in judicial races should overcome the historical presumption of judicial integrity.’”

The full text of the 10 justices’ brief can be found here.

To find out more about Caperton v. Massey, you can visit the Justice at Stake Caperton resource page.

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