Gavel Grab

Archive for December, 2009

Happy Holidays From Justice at Stake

Justice at Stake is closing its doors for the holidays, and Gavel Grab will have only limited coverage until Jan. 4. Have a wonderful holiday season.

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Lawmen’s Actions: Threat to Judicial Independence?

Maricopa County Sheriff Joe Arpaio (photo above, courtesy of Los Angeles Times) likes to call himself “America’s toughest sheriff.”

But the aggressive tactics he and County Attorney Andrew Thomas have used against those who disagree with them in local government and the judiciary  have led to serious questions. The questions are about lawmen with contempt for the rule of law and about threats to an independent judiciary.

On Dec. 21, more than 250 activists and lawyers staged a rally outside a Phoenix courthouse to protest legal actions, including a racketeering lawsuit and criminal charges, lodged against county officials and local judges, according to an article in the ABA Journal. Shawn Aiken, a lawyer involved in organizing the event, told the Huffington Post:

“There seems little need to overstate the case: the independence of the judiciary in Maricopa County is at stake here.”

Arpaio has a reputation for tough tactics to collar suspected illegal immigrants. He is Republican, highly popular, and considered a possible candidate for governor. The Los Angeles Times has depicted him as a colorful character given to outfitting jail inmates in pink underwear and in Phoenix’s torrid summers, keeping them in outdoor tents.

Those kinds of tactics pale in contrast to the legal tactics he has employed against critics, with Thomas’s help, and the resulting, extraordinary war led by the lawmen that has led the Arizona Republic to denounce “bullies with badges” (Dec. 16) and “not the rule of law…[but] the rule of brash thuggery” (Dec. 18.)

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NY Times Spotlights Drive to End Judicial Elections

A new drive, led by retired Supreme Court Justice Sandra O’Connor, to bring an end to state judicial elections has captured  attention in the New York Times, which published an article about the campaign’s goals and players headlined “Effort Begun to End Voting for Judges.”

The campaign was announced by the Institute for the Advancement of the American Legal System in Colorado, and was the subject of an earlier Gavel Grab post. The effort involves judges, political officials and lawyers and is aimed at fighting the perception of ethical conflict that campaign spending can fuel.

In November, Nevadans will vote on a constitutional amendment to set up a judicial appointment and retention election system. A partial move to judicial selection commissions is under discussion in Ohio. You can read about these kinds of selection systems on Justice at Stake’s issues page. IAALS is a partner of Justice at Stake.

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Candidate Koschnick's Case for Public Financing

One can be forgiven for detecting a whiff of cynicism in the newest lawsuit challenging Wisconsin’s public financing law.

As reported in Gavel Grab, former Supreme Court candidate Randy Koschnick says the law violates his First Amendment rights to … it’s not clear exactly what.  But during his campaign against Wisconsin Chief Justice Shirley Abrahamson, candidate Koschnick had a different take. He thought public financing was a “great idea,” according to a Dec. 23 news report by Wisconsin Public Radio.

Announcing his candidacy last November, Koschnick said:

public financing would enable legitimate candidates to run without necessarily having to be independently wealthy and might also reduce the influence of third-party groups who “obviously wield a lot of power and money.”

Kudos to candidate Koschnick. He gave an outstanding, pithy explanation of how public financing enhances free speech, by giving more candidates the means to run, and therefore more choices to voters.

That may be why the notably conservative 4th U.S. Circuit rejected similar litigation against North Carolina’s public financing law.  When you look closely, there’s no there there.

If there is a hope in the two suits being filed against Wisconsin’s new law, it is that federal courts will puncture further holes in what can be described as the Great First Amendment Over-Reach–a series of overblown challenges to  common-sense campaign finance laws.

Candidate Koschnick’s remarks raise excellent questions about litigant Koschnick’s lawsuit. First, how exactly does public financing injure him?

In 2009, he raised $171,000 from private campaign supporters; Abrahamson raised $1.4 million. Had both participated in the new system, each would have had $300,000 to spend in public funds. If anything, public financing might have been Koschnick’s best hope for election.

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Debate Continues Over Detainee Policies

Despite the Obama administration’s decision to close the detention facility at Guantanamo Bay and move a number of detainees to a facility in Illinois, the debate continues over how to best protect civil liberties in a time of danger.

According to a Tribune Newspapers article, the multi-pronged policy taking shape under the Obama administration “bears a striking similarity to that of the final year of George W. Bush’s presidency.” The article offers an even-handed examination of the issues at stake in the way the government has held and chosen to try terror suspects.

In the Huffington Post, Jonathan Hafetz, an attorney with the  the ACLU, and Mark P. Denbeaux, a professor at Seton Hall Law School, say the Illinois transfer plan “will do little to end the unlawful detention system Guantanamo embodies.”

From a different vantage point, The Corner blog of National Review commends a New York Times column that urges Congress to craft a coherent policy for handling terror detainees. Gavel Grab highlighted the column earlier.

Meanwhile, a New York Times article suggests that it may be 2011 before the Guantanamo Bay facility is closed, and its prisoners are transferred. You can read more about detainee issues from Gavel Grab, or Justice at Stake’s publication “Courting Danger” outlining the difficulty in preserving constitutional liberties while increasing preparedness for future acts of terror. The JAS site also has a web page on Civil Liberties and National Security.

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Advocate: WI Disclosure Loophole Needs Closing

Wisconsin’s recently adopted Impartial Justice Act for public financing of state Supreme Court candidates represents a major advance, but a  loophole in state law must be closed for the new law to be more effective, writes Mike McCabe of the Wisconsin Democracy Campaign.

In a commentary in the Janesville Gazette, McCabe advocates closing the “issue ad” loophole that allows special-interest groups to spend large sums to influence state elections–all in secret. If the legislature closes the loophole, McCabe writes, these special-interest groups would have to disclose their activity and comply with limits on campaign contributions. Moreover, under the Impartial Justice Act, state Supreme Court candidates who qualify for public financing would get taxpayer dollars to fight the special-interest attacks.

Wisconsin Democracy Campaign is a partner of Justice at Stake. You can learn more about disclosure laws for “third-party” campaigns, which have poured millions of dollars into judicial elections, from Justice at Stake’s issue page on the topic.

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Commentary: Is MI Recusal Rule Constitutional?

A law professor raises questions about the constitutionality of Michigan’s new rule governing disqualification of judges in a column published by the Detroit News.

The new  rule, adopted by Michigan’s Supreme Court, would let a majority of state Supreme Court justices disqualify one of their own from hearing a case, in the event of an apparent bias or conflict of interest. It replaces a practice whereby only the justice in question decides whether to step aside.

Matthew Schneider of the Thomas M. Cooley Law School in Lansing contends  that the new rule tramples the constitutional principle of “one person, one vote,” it does not set a process for a fair hearing, it causes a “chilling effect” on free speech, it is not based on state constitutional authority, and it could result in a court with only four members.

You can click here to read in Gavel Grab a different view from another newspaper, a laudatory editorial about the new rule from the Detroit Free Press. You can read other Gavel Grab posts about the controversial new rule by clicking here. Justice at Stake has praised the new rule, saying, “When courts work to insulate cases from interest group pressure, citizens can be more confident that their courts will be fair and impartial.”

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Former NY Judge Gets 27 Months in Prison

Former New York Judge Thomas J. Spargo, an election law expert convicted earlier of trying to solicit a $10,000 payment from a lawyer who was to appear before him, was sentenced to 27 months in federal prison.

Spargo, an Albany-based judge who tried cases in Ulster County, was sentenced for attempted extortion and attempted bribery, according to an article in the Syracuse Post-Standard. “Reprehensible,” was the way U.S. District Judge Gary Sharpe characterized Spargo’s conduct, the Albany Times Union reported.

The Village Voice published a post headlined, “Thomas Spargo–Bush Campaign Operative Turned NY Judge–Gets 27 Months in Prison for Bribery, Extortion.” You can read the details of Spargo’s downfall in Gavel Grab, including concerns raised by some activists that it illustrates the need for reform of judicial elections.

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Commentary: PA Judges 'Best That Money Can Buy?'

Gavel Grab wasn’t alone in taking note of a report this week by Pennsylvanians for Modern Courts about likely record-high spending in this year’s state Supreme Court election.

Here’s how Dave Davies wryly characterized the report in the Philadelphia Daily News:

“Just how good are Pennsylvania judges? The best money can buy, apparently.”

The commentary quoted Lynn Marks, executive director of PMC–a partner of Justice at Stake–as pointing to a corrosive impact of the big spending; polls show, Marks said, that voters  “wonder whether justice is for sale.” Marks went on to elaborate her support for appointment of appellate court judges.

You can read in Gavel Grab about the PMC report, and you can read about appointment/retention systems of judges from Justice at Stake’s issues page.

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Judge Files New Suit Against WI Public Financing

An unsuccessful candidate for Wisconsin’s Supreme Court and a Virginia-based nonprofit group have filed a lawsuit, the second in less than a week, to overturn a new Wisconsin law for public financing of state Supreme Court candidates.

Jefferson County Circuit Judge Randy Koschnick (photo at right) contended in the lawsuit that the new law favors candidates who get public funding over those who do not, and it thereby violates free speech and equal protection rights guaranteed by the Constitution, according to an article in the Milwaukee Journal Sentinel.

Joining in the lawsuit, and reflecting the national interest in Wisconsin’s public financing law, was the Center for Competitive Politics, based in Alexandria, Va., a suburb of Washington, D.C. Stephen M. Hoersting, vice president of the Center, said in a statement, “Schemes that give the government power to penalize candidates for exercising their First Amendment rights have been ruled unconstitutional by the Supreme Court and two federal courts.”

The Center’s press release did not mention, however, that a North Carolina public financing law for appellate judicial candidates, which is similar to Wisconsin’s, was upheld by the 4th U.S. Circuit Court of Appeals. The U.S. Supreme Court declined to take up an appeal of that case.

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