Legal knowledge | Criminal law » Chief Justice Phil Hardberger - Campaign Contributions, The Need to Reform the Judicial Election System

Source: http://www.doksinet Campaign Contributions - The Need to Reform the Judicial Election System By: Chief Justice Phil Hardberger San Antonio Trial Lawyers Association October 19, 2000 This is the first time in the seven years that I have been on the appellate bench that I have had the occasion to speak to an exclusive group of trial lawyers. I am proud to have been a trial lawyer for 27 years. I have tried to be fair to every party that comes before the Fourth Court, and in doing so I have sometimes ruled against the injured party. I am sure that I will do so again if the law requires it. But I have never denied that my background as a lawyer was defined principally by my representation of the poor, the uneducated, the needy and the defeated in our society. It gave meaning to my life and justified a lot of sleepless Sunday nights. If we do not give a voice to the voiceless, then who will? The search for justice does not end with the poor and the minorities. It is for everyone,

but it is the poor and the minorities who need help the most. Powerful interests and the rich can afford good lawyers, and they get them. Smart lawyers who generally made better grades in school than most of us. But what a privilege to have been side by side with those that depended on us as their shield and spear. Many of you may not know Susan Zinn, who is a lawyer here in San Antonio. She is a small, quiet woman with large courage that we all could envy. For the past several years, she has been fighting a battle to get proper health benefits from the State of Texas for 1,500,000 indigent Texas children. Hearing after hearing, deposition after deposition, she struggled against legions of government lawyers, always outnumbered. All her efforts seemingly went unnoticed, until a couple of weeks ago. She won Now I see that the State’s Attorney General’s office will appeal to the Fifth Circuit in New Orleans. For what purpose? Wouldn’t it be better to use the States’s great

resources to raise healthy children? Susan thinks so, and she will fight on because it is the right thing to do, Source: http://www.doksinet 2 and she is a warrior. Susan may never have tried a personal injury case, but she is definitely a trial lawyer. Now I will mention someone that will cause some of you to think that I have confused my audience: Lewin Plunkett. Isn’t he an insurance defense lawyer, you ask? He is, and a good one But I mentioned him because for 6 ½ years he represented an indigent criminal on Death Row by the name of John Satterwhite. If Lewin and his firm had billed for their time, rather than doing the work pro bono, they would have made $75,000. But he wasn’t doing it for the money; he did it for the Bar and for society. It was hard, and it was not popular, but I’d say there was a trial lawyer at work I think of all the safety improvements that have been made by the members of this group and your counterparts across the United States: cars that don’t

blow up, seatbelts that work, bridges instead of low-water crossings, baby cribs that don’t strangle their occupants, clothes that don’t torch their wearers. The list is too long to go through Let it be enough to say that you are a member of those private protectors of the public. I am honored to be here before you. I would like to give you an optimistic account of where we are in the justice system. I will not do so because I see no reason for optimism I do not see it as hopeless, but I see a struggle ensuing that has not yet peaked. The pendulum will not swing back. Big money has captured that pendulum and will not let it go. You have seen its effect in the higher courts In the nineties, nine members of the supreme court and court of criminal appeals were defeated in partisan elections. Having been totally successful at that level, the focus is now on the appellate courts of Texas. This is a methodical, well structured attack on every judge that is not considered probusiness

enough. The defense of having been a dedicated servant of the law, who has tried to serve Source: http://www.doksinet 3 all the people, will not prevent a judge from being defeated. Of course, the less popular and less talented judges will fall first, but eventually the sweep will be complete just as it already is in Houston and Dallas. A Houston Chronicle story in 1994 explained how straight-ticket Republican voting helped unseat nineteen Democratic judges in Harris County. Chief Justice Phillips noted recently that over 200 district and appellate judges have been thrown out of office in the last decade because they ran on the wrong ticket. This is a mounting crisis that will overwhelm the strongest of individual judicial candidates. In view of this crisis, it is time to think the unthinkable, and speak the unspeakable. It is time to open our minds to a frank discussion of the way we select our judges in Texas. HISTORY OF THE JUDICIAL ELECTION SYSTEM In order to debate whether

change is needed in Texas’s system of electing judges, it is important to understand the evolution of that system. The report on the Committee of the Judiciary for Texas’s first constitution initially recommended the creation of a supreme court composed of three justices to be appointed by the governor with the advice and consent of 2/3 of the senate. Proposed amendments to replace the appointment system with an election system were summarily rejected at the Texas Convention. During the second quarter of the 19th century, President Andrew Jackson led a reform for the adoption of partisan elections as the method for choosing judges. This movement was part of a new philosophy favoring the popular election of all public officials, known as “Jacksonian democracy.” New York’s switch to partisan elections in 1846 began a landslide change, and by 1861, twenty-two states had followed the lead and adopted the partisan election system. Texas made the switch in 1850, only five years

after adopting its first constitution. Although a switch back to the appointment Source: http://www.doksinet 4 process was made during the civil war and reconstruction years, Texas’s Constitution adopted in 1876 provided for the popular election of judges. Discouraged by the partisan election system, the nationwide judicial selection reform movement broke historic ground in 1940 when Missouri adopted a merit judicial selection plan. In Texas, following the completion of a five-year study of the state’s judicial system in 1946, the Texas Civil Judicial Council proposed an amendment to article V of the Texas Constitution, which included a merit selection plan for selecting all Texas judges, similar to the Missouri Plan. However, the amendment was not adopted by the legislature. RECENT HISTORY & BIG MONEY Texaco v. Pennzoil, in 1987, was the beginning of our present crisis Texaco representatives contributed campaign funds totaling $72,700 to seven justices while the case was on

appeal, and Pennzoil lawyers countered, contributing $315,000. Four justices who received contributions from the parties did not even face re-election. Pennzoil won the case After this type of big money entered the picture, things were never the same. ADVANTAGES AND DISADVANTAGES TO PARTISAN ELECTIONS The primary advantages of a partisan election system are the fostering of the institutional independence of the judiciary from other branches of government and the recognition of the people’s right to vote. The disadvantages to the partisan election system include: (1) The possibility that elective judicial selections would result for reasons other than ability, including straight ticket balloting, ballot position, name appeal and name identification; (2) Determination of elections by an apathetic and uninformed electorate; Source: http://www.doksinet 5 (3) Excessive special interest influence due to the need to finance campaigns; (4) Possibility of court decisions based on

purely political considerations; (5) Drain on court time due to time needed to campaign; (6) Discouragement of qualified but politically unconnected persons for seeking office; and (7) Discouragement of qualified candidates who are unable to finance a campaign. ADVANTAGES AND DISADVANTAGES OF APPOINTMENT SYSTEM AND RETENTION ELECTIONS The primary advantage espoused in favor of the appointment system is decisional independence. Judges are not concerned about the impact their decisions will have on campaign contributors. The disadvantages of the appointment system include: (1) politics; (2) rigging and packing of appointments; (3) backroom lobbying and deals; and (4) excessive influence by the governor and other politicians who appoint screening committee members. Critics of the retention election system contend that retention elections are universally recognized as ineffective and meaningless in terms of voter participation. For example, in Missouri, only one judge was

removed in such an election in forty-eight years, and throughout the nation, only 1.6% of judges in appointment states have ever been removed. CONSTITUTIONAL AMENDMENT? Source: http://www.doksinet 6 That background leaves us where we are today. Sections 3, 4, and 6 of Article V of the Texas Constitution require that the justices of the Supreme Court, Court of Criminal Appeals and Courts of Appeals be elected. In June of this year, I testified before the Select Committee on Constitutional Revision. That Committee must decide whether to recommend to the legislature a constitutional amendment to revise the judicial election system. The Texas Code of Judicial Conduct instructs us that our legal system is based on the principle that an independent, fair and competent judiciary will interpret and apply the laws that govern us. In furtherance of that principle, Texas judges must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary

and must not allow any relationship to influence judicial conduct or judgment. The problem in Texas today, however, is that the principle of an independent, fair and impartial judiciary is at war with Texas’s method of electing judges. In a 1999 poll, eighty-three percent of Texans stated that campaign contributions significantly influence Texas judges’ decisionmaking. Seventy-nine percent of attorneys agreed that campaign contributions have an influence Most alarmingly, forty-eight percent of judges themselves agreed that campaign contributions have a significant influence on Texas judges’ decision-making. If almost half of the judges, who are bound to act impartially, agree that campaign contributions have an influence, how can we think otherwise? As Supreme Court Justice Anthony Kennedy commented, “The law commands allegiance only if it commands respect. It commands respect only if the public thinks that judges are neutral” Money talks in election campaigns, and monetary

influence is corrupting. Only seven states have partisan elections at the trial, appeals and supreme court levels. Two other states technically have non-partisan elections at all three levels, but the candidates usually run Source: http://www.doksinet 7 as partisans. Several of those nine states have contribution limits, although Texas’s limits are the highest. Texas is the only state with partisan elections in which judges are expressly permitted to solicit contributions from lawyers and clients, including those with cases currently before the judge. Texas judges are not required or even encouraged to recuse themselves in cases in which the lawyers, parties, or others with special interests in the outcome contributed to their campaigns. As a result, lawyers are solicited, and they contribute in droves. One study revealed that the nine current members of the Texas Supreme Court raised a total of $11 million in their most recent general election campaigns between 1994 and 1998.

This averages to approximately $1.4 million for each seat In 1994, only 35% of the money came from lawyers, but in 1998 that figure rose to 48%. Business and defense attorneys accounted for 79% of the $5.2 million contributed by lawyers and law firms Plaintiffs lawyers accounted for only 13% Oil and gas interests contributed 13% of the remaining 52% of contributions, and big business tort reform groups contributed 15%. Contributions by labor were less than 1% It’s hard to blame the candidates. Texas law permits the solicitation of these funds, and campaigns are expensive. The high cost of television and other advertising media must be paid because voters are poorly informed about candidates for judicial office. If a candidate is unable to pay to expose his or her name to the public through various media outlets, the candidate will not be successful. The process is to be blamed, not the people The fact that the solicitation and collection of these funds is permissible only reinforces

the public’s perception of the influence these funds have. In one recent case, a Texas Supreme Court justice received a $10,000 check from a law firm twenty days before oral argument was scheduled in a case in which the law firm represented one of the parties, and that justice’s sole challenger in 2000 Source: http://www.doksinet 8 had raised no money. If the public heard of this contribution and the party represented by the law firm won, the public would be highly suspect that the contribution had some influence on the justice’s decision, whether it did or not. In another case, the Texas Supreme Court was called upon to determine whether a class of plaintiffs was properly certified. The class sought to be certified were purchasers of Ford automobiles who had a common problem with peeling paint. The class was necessary because individual suits would be impractical given the amount of money involved. If the class was decertified, the plaintiffs would not likely pursue

individual actions. From the time the appeal was presented for oral argument to the time the case was decided, the Texas Auto Dealers Association contributed $15,500 to the Supreme Court justices who would decide the case. After accepting the contributions, the Court ruled in Ford’s favor, holding that the class was not properly certified. Justice Baker dissented from the opinion, criticizing the majority’s reliance on a special law to find jurisdiction to consider the appeal. Justice Baker contended that the majority mocked the constitutional prohibition on special laws. He concluded, “In any event, we all know what is going on here.” Numerous efforts to change the way Texas picks judges have failed in the Legislature. During the 74th Legislature, a reform plan was spearheaded by then Lieutenant Governor Bob Bullock. The Bullock Plan combined gubernatorial appointments for appellate courts and subsequent retention elections with non-partisan elections followed by retention

elections for district-level trial courts. In the four largest counties, district judges would be elected from county commissioners’ districts instead of countywide, which supporters said would lead to more minorities, particularly African-Americans, on the trial bench. Although the Senate passed the Source: http://www.doksinet 9 Bullock Plan during the legislative session, the plan never reached the House floor because supporters were unable to find the 100 votes needed to approve a constitutional amendment. One commentator noted, “After each judicial election, the movement for changing the way Texans select their judges is renewed. To date, the call remains unanswered Anthony Champagne, after studying judicial reform for a decade, has observed that ‘[p]ractically after every election for judges, you get a call for changing the system of selecting judges to a merit system. There’s a lot of discussion for a while and then it all dies down and it all goes away.’ The

‘business as usual’ approach of the past must be discarded to bring about the needed change.” The election system works in legislative and executive races, such as races for governor and state representatives and senators, where the candidates and office-holders are expected to take positions, and the positions are well-publicized. Judges and judicial candidates are prohibited from making statements that indicate an opinion on an issue that may be subject to judicial interpretation by the office which is being sought or held. Important decisions by the judiciary are often deemed unnewsworthy by the media. As a result, the public is left uninformed of the most important basis for evaluating an incumbent judge - his or her past performance, and a challenger is left with a claim that he or she will be “fair and impartial.” The selection of Texas’s judges has dramatically and permanently changed since the election system was adopted in 1876. It has changed since 1987 The

influence of big money in campaigns thirsting for the expensive access to television and advertising is undeniable. Various plans have been proposed to bring back public confidence in the Texas judiciary, from the Bullock Plan presented to the 74th Legislature to the plan first advocated by former Chief Justice John Hill, who Source: http://www.doksinet 10 resigned as Chief Justice to free his time to work for reform. I see merit in these reform proposals and believe a workable compromise is possible. Personally, I would favor a merit appointment plan with a selection committee composed of members of the bar. The selection committee would select ten candidates: five Democrats and five Republicans. The governor would then choose from those candidates, but the governor would be required to select based on the Presidential vote in the last election. For example, if sixty percent of the people voted Republican, and forty percent voted Democrat, then sixty percent of the appointees would

be Republican, and forty percent of the appointees would be Democrats. The appointment process would be followed by non-partisan retention elections. The advantage to this plan is that we would almost certainly have qualified judges appointed, and the selection committee would be able to assess and consider elements of ethnicity, geography, gender, and locality (urban v. rural) Although the logistics of the reform plan may need fine-tuning, one thing is clear. The Texas Legislature cannot permit the “business as usual” attitude to continue. We have access to countless studies, plans, and statistics. The time for the passage of a reform plan to eliminate the appearance of partiality in the judiciary is now