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From the President

California must ensure judicial independence

By Bill Hebert
President, State Bar of California

Bill HebertWe all watched with interest the pitched election battle for a spot on the Wisconsin Supreme Court between the incumbent, Justice David Prosser, and his challenger, Assistant Attorney General JoAnne Kloppenburg. The election, won by the incumbent by a narrow margin, was seen by some as a referendum on the policies of conservative Republican Gov. Scott Walker. 

Contested judicial elections are not new; 39 states have some form of judicial election. In California, most superior court judges are appointed by the governor, although lawyers can engage in contested elections for some open seats. Once in office, they must undergo retention elections and can be challenged in open elections. All justices on our appellate courts and our Supreme Court are appointed by the governor. They stand periodically in retention elections, but the voters only get to decide whether they should be retained. We do not have contested elections for openings on the Courts of Appeal or the Supreme Court. If a justice is not retained, the governor appoints a replacement. 

Like all elections, judicial elections must be fair to be meaningful. In 2007, Chief Justice Ronald George established the Commission for Impartial Courts to study and provide recommendations on ways to strengthen our court system, increase public trust and confidence in the judiciary, and ensure judicial impartiality and accountability for the benefit of all Californians. The commission issued a final report in December 2009 containing its recommendations.

The State Bar is working with the commission and local bars to advance fairness in judicial elections. Two of the commission’s recommendations specifically speak to the possible establishment of a new committee, created and staffed by our local bars, to help ensure fair judicial elections and respond to unfounded attacks on the judiciary. Recommendation 8 is:

“The formation of unofficial local fair judicial elections committees to educate candidates, the public and the media about judicial elections; to mediate conflicts; and to issue public statements regarding campaign conduct in local elections should be encouraged.”

Recommendation 16 is:

“Local county bar associations should consider creating independent standing committees that will respond to inaccurate or unfounded attacks on judges, judicial decisions and the judicial system.”

In considering the advisability of developing judicial campaign conduct efforts in California, the commission agreed that one of the greatest threats to judicial independence comes from significant third-party and special interest group involvement in judicial elections ― that is, the influence of big money, whatever its source might be. Recent United States Supreme Court cases have kept money and partisan campaigns a part of judicial elections. In Republican Party of Minnesota v. White, 536 U.S. 765 (2002), the court refused to impose restrictions on speech in judicial campaigns. More recently, in Citizens United v. Federal Election Commission (Case No. 08–205, decided Jan. 21, 2010), the court held that the Federal Election Commission could not limit campaign contributions by entities, such as corporations or unions. 

California has not resigned itself to the potential destructiveness of partisan judicial campaigns. As the commission noted in its report:

“The commission believes that California should be in the vanguard in aggressively addressing the conduct of third parties and special interest groups during judicial elections, in addition to ensuring that candidates conduct themselves and their campaigns in a manner that ensures judicial integrity, confidence in the judicial process, and judicial independence.”

Local oversight efforts can seek to preserve fair judicial elections by educating candidates, the public and the media about the differences between judicial and political elections, by mediating conflicts, and, as a last resort, by issuing public statements regarding improper campaign conduct. Local bars can formulate voluntary codes of conduct for all judicial candidates and ask candidates to sign pledges to comply with the codes. Before taking a public position on specific conduct, local bar representatives can discuss questionable conduct with the participants and, if matters cannot be resolved informally, provide a hearing process.

If a local bar does decide to develop a committee, the commission noted that the composition of these unofficial committees “must be balanced, as their effectiveness will rest largely on their credibility with the public, the judicial candidates and special interest groups. Such committees should be nonpartisan (or bipartisan) and should include well-respected members of the community such as lawyers, media experts, former judges, ethics experts, community and religious leaders, academics and representatives of nonpartisan organizations such as the League of Women Voters.”

The Santa Clara County Bar Association has been a leader in this area for many years. Its Judicial Election Campaign Code of Ethics and Fair Election Commission Practices Procedures, provide excellent models. The bar association’s current Rules For Conducting Plebiscites relates to contested elections for superior court judges and other legal offices. And the National Ad Hoc Committee on Judicial Campaign Oversight has created a “How-To Handbook” on effective judicial campaign oversight efforts. 

On March 25, I sent an email to the leaders of all of California local voluntary bars urging them to develop ways to implement these recommendations and address these issues in a manner that is appropriate for their own bar structures and needs. Some local bars may want to develop a new committee, while others may decide that the tasks fit within an existing committee. Still others may decide to use their board or another existing committee to develop a campaign conduct code, relying on existing models, and then establish a protocol for addressing any issues that arise, rather than forming a standing committee. 

All lawyers have a direct interest in promoting fair and balanced judicial elections. Working together, our courts, the State Bar and local bars can stop our judicial branch from falling victim to politicization and ensure that our judges can maintain their independence of thought, judgment and conscience without fear of unfounded or unfair attacks.