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Most states do not shield judiciary from campaigning
It's a rivalry that
spans back to the creation of the U.S. Constitution. For generations,
the relationship between judges and legislators often has been marked
After all, the role of judges is to review the laws crafted by lawmakers to determine if they are constitutional — and unpopular rulings from the bench often spark cries to restrain activist judges.
Utah is just one of 16 states that has a system for retaining or booting judges that attempts to insulate the judiciary from politics by not forcing them to hit the campaign trail.
Instead of selecting judicial candidates in contested elections, Utah voters next month will decide to "retain" judges in their district and don't have the option of picking from a field of hopefuls.
Proponents say there's a good reason for this.
In 2000, an estimated $45 million was given out in campaign funds for supreme court justices in states that have contested elections, according to Tim Shea with the Utah Administrative Office of the Courts. In 2004 that number swelled to $48 million, Shea said. In one Supreme Court race in Illinois, campaign contributions hit $9.4 million.
"The issue is, is justice for sale?" said Jesse Rutledge, a spokesman for a judiciary watchdog group. "We ask judges to be accountable to the law and the Constitution, not to partisan politics and special interest groups."
Rutledge, a spokesman for The Justice at Stake Campaign, a Washington D.C.-based group that monitors courts for fairness and partiality, said studies have shown that just the simple act of receiving campaign funds causes the public to assume judges are influenced.
"The big difference is that those states now have campaigns that look and feel much like a campaign for any other office."
Utah selects its judges through a complex system involving input from the governor to the state Senate and ending with the non-contested public retention vote at the end of a judge's term.
Up for retention this year are two Utah Supreme Court justices, Ronald Nehring and Jill Parrish, 24 district judges and 38 justice court judges.
Both top court officials and the state's legislative leaders agree that in Utah, when it comes to judging judges, the system here strikes a balance between public accountability and insulation from political influence.
"I don't have any overwhelming concerns," said Speaker of the House Greg Curtis, R-Sandy.
Here, the governor conducts a background investigation, and again the judicial candidate is investigated by the Utah Senate. The Senate also conducts a public hearing before making a final vote.
Judges also are evaluated by the Judicial Council, attorneys who appear in their court as well as citizens who serve as jurors in their court. Judges are judged on several factors and those results are published in the Utah Voter's Handbook.
For judges to qualify for retention election, they must pass at least 75 percent of 15 survey questions with at least a 70-percent approval rating.
Earlier this year, however, one lawmaker did call into question how judges are retained. Sen. Chris Buttars, R-West Jordan, proposed that every judge should pass a Senate confirmation vote at term's end. Buttars' proposal met with little support, mainly out of concern for the constitutional separation of the three branches of government.
His idea reflects a growing movement sparked by political forces to reign in judges. Currently there are five states with ballot initiatives that would hold judges even more accountable for their decisions. One example is in South Dakota with Amendment E, which would create a "grand jury" of citizens to review complaints against judges and possibly take away a judge's immunity to be sued.
Rutledge said such political movements are meant to scapegoat judges for political means. "An activist judge is just a term for a judge who makes a decision you don't agree with," he said. "There is a political culture and a political industry that is built around attacking judges and attacking their rulings when the decisions aren't popular."
Utah Supreme Court Chief Justice Christine Durham said she finds the movement troubling.
"This is a matter of great concern and has implications for our democracy," she said. "We are at risk, I think, of losing the rule of law entirely ... no judge will be free to apply Constitutional values," out of fear of being forced out by lawmakers or the public.
Durham added she thinks Utah has the best system in the United States.
Not only are Utah's judges evaluated and certified by the Judicial Council and then retained by ballot election, their actions are also monitored by the Judicial Conduct Commission, which has many members appointed by the Legislature.
"People say they don't know judges and I'd say that's true," Durham said, pointing out that unlike other candidates on the ballot, judges are limited in being outspoken.
Sen. President John Valentine, R-Orem also said he is satisfied overall with the way Utah chooses its judges. "I like the idea that it's not a contested election, that it's not a partisan election, and that we go through a rigorous process."
Valentine said he doubted lawmakers could constitutionally do what Buttars proposed, but did say over the past four years the Senate has taken judicial confirmation more seriously. "There hasn't been a statutory change. It's more of a change in attitude," Valentine said. In the past the Senate has relied on background reports provided by the governor's office. Now, Valentine said, the Senate conducts its own reports as well as holding public confirmation hearings and soliciting public input as to the qualifications and character of a nominee.
One concern Valentine had was the 70 percent/75 percent standard. He said he felt that 70 percent was not stringent enough, noting that almost every judge passes. "That's a pretty high threshold in the sense that not too many people are going to fall below that," he said. He would also like to see any public reprimands against judges listed more prominently in the handbook.
Durham disagrees with Valentine on retention standard.
"I'd sure like to see a legislator live with a 70 percent approval rating," Durham said.
According to the voter handbook, only one judge, 3rd District Judge Leslie Lewis, received two marks well below 70 percent. According to the Utah Courts, while there have been several instances of judges stepping down under pressure, there have only been two that have been actually voted off the bench by popular vote.
In 2002 Judge David Young was ousted by a 53 percent vote after a citizen campaign was waged to unseat him under allegations of leniency and bias involving sex offenders and DUI offenders. The only other judge to be voted out was Justice Court Judge Rowland Yardley of Beaver County in 1994.
Ironically, Rutledge said when leaders of these anti-judge movements are pressed to give examples of outrageous rulings, they are at a loss to give specifics. Durham agreed, and said she also finds it ironic that members of these movements will want a judge to rule a certain way, yet expect a judge be fair and impartial when they come before the court.