Gavel Grab

Florida Supreme Court Justice Applauds Yulee Decision

pariente0807In an interview on the public radio show The Takeaway, Florida Supreme Court Justice Barbara Pariente talks about the Supreme Court’s decision in Williams-Yulee v. The Florida Bar and the problem of money in judicial elections.

The decision, which The Takeaway characterized as a “quiet little ruling that shocked the world of campaign finance,” upheld Florida’s ban on personal campaign solicitations by judges and judicial candidates.  Justice Pariente called it an “important recognition of the difference” between the two political branches of government and the judicial branch.

Justice Pariente also talked about the serious problem of dark money in judicial elections, in which shadowy groups spend to put judges on the bench in hopes of advancing a political agenda.  She mentioned Justice at Stake among groups that are working toward a resolution of this problem, by advocating for reforms such as merit selection of judges.


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Friday Gavel Grab Briefs

In these other dispatches about fair and impartial courts:

  • At a debate Wednesday, democratic candidates for the Pennsylvania Supreme Court emphasized the need for greater transparency, ethics trainings, and gift bans to improve the court’s image and functionality, PennLive reports. Only John Foradora did not participate in the debate.
  • The Associated Press reports that Wisconsin Justice Michael Gableman called the vote that elected Justice Patience Roggensack to be Chief Justice, ousting Justice Shirley Abrahamson.
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KS Supreme Court Won’t Hear School Funding Lawsuit

The Kansas Supreme Court told a lower court that it must complete a school funding lawsuit case before it can be heard by the high court. reports that an order issued Thursday means a three-judge panel in Shawnee County District Court must finish hearing the lawsuit first. The lower court has a May 7 hearing scheduled.

Four school districts are suing the state after lawmakers enacted a new school funding law promising additional aid that did not meet the $548 million the lower court earlier ordered.

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The Face of the Marriage Equality Case Is A White Male For A Reason

marriage equalityWhile the Supreme Court prepares to decide the constitutionality of marriage equality, the optics of the case have been over looked. The Hill explains that it is no coincidence that Jim Obergefell, the named plaintiff in the case, is a white man.

A large body of research indicates that implicit bias against people of color manifests in the criminal justice system, and LGBT youth of color are at an even greater disadvantage. This manifests in homelessness rates, suicide attempt rates, and simple lack of sympathy. One particular study out of Northwestern University concludes that white male same-sex couples are more likely to be viewed with sympathy than other demographics:

“Some study participants were shown a white male couple, others a white female couple, black male couple, or a black female couple. After reading the article, participants were asked about their support of same-sex marriage rights. The study revealed that people’s support of gay marriage varied based on what image they were shown.

Participants who were exposed to the white male couple expressed greater support for same-sex marriage, compared to those who were exposed to any of the other three images. And those photos were of the white lesbian couple, black lesbian couple, or black gay male couple. This suggests that the public face of same-sex marriage may impact people’s views on the underlying issue.”

This implicit bias is seen through other studies, particularly those focused on the criminal justice system. So, the article concludes, as lawyers play off these biases for the benefit of their client – or even a group – they may also be distracting from serious issues affecting these communities.

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Williams-Yulee May Spark New Regulations… But Not Likely in Georgia

In light of the Supreme Court ruling in Williams-Yulee v. The Florida Bar, some states may begin introducing and reintroducing bans on judicial candidates soliciting donations, according to Law 360.

“In the nine states that both elect judges on some level and also haven’t put in these sorts of solicitation bans, this is encouraging to them,” confirms Scott Greytak of Justice at Stake. It seems that Georgia, which had a rule similar to Florida’s overturned by a federal court in 2002, may not follow that path.

Lester Tate, chairman of the Georgia Judicial Qualifications Commission, told the Daily Report that public confidence in the state judiciary has not “noticeably diminished” since the ban was overturned. “In our nonpartisan system, you need to have bipartisan support,” Tate says, and that has helped Georgia’s judicial elections remain relatively low key compared to other states.

Others, such as plaintiff’s attorney Ken Shigley, is worried that direct solicitation creates “an impression of justice for sale,” and could lead to a “total undermining of any confidence in the elected judiciary.”

Some, including Greytak, hope that the decision will lead more people to question the prudence of electing judges in the first place: “When the majority of the U.S. Supreme Court states definitively that judges are not the same as politicians, it raises the question of why in 39 states we choose our judges the same way we choose our politicians. We hope this opens up a broader conversation about the utility of electing judges.”

See Gavel Grab for more information on the decision, and other fair courts issues.

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SCOTUS to Decide Death Penalty Lethal Drug Case

The U.S. Supreme Court will decide if the drug midazolam can continue to be used as part of the drug protocol for lethal injections.

According to CNN, the debate was intense Wednesday when the justices discussed the lethal injection protocol that came into question after the botched execution of Oklahoma inmate Clayton Lockett (see Gavel Grab).

Justice Samuel Alito suggested that there are drugs available that would allow executions to be carried out pain free but death penalty opponents are making it impossible for states to obtain them.

The justices are not considering the constitutionality of the death penalty in this case, but whether the drug in question passes constitutional scrutiny and what guidance could be offered to states that are looking for other options due to the shortage of lethal injection drugs.

Justice Sonia Sotomayor had many questions and suggested that the case should be sent back to the lower court for further review.



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Yulee Roundup: The Importance of a ‘Minor Dispute’

Bert Brandenburg

Bert Brandenburg

Chief Justice John Roberts differentiated elected judges from other elected officials in the Williams-Yulee decision, the Washington Post reports. “In deciding cases, a judge is not to follow the preferences of his supporters, or provide any special consideration to his campaign donors,” he wrote. Forbes called the case a “minor dispute,” but the Post quoted Justice at Stake Executive Director Bert Brandenburg on why it is so important:

“Today’s decision helps judges by saving them from the compromising job of raising cash from people whose cases they will decide. It helps our court system by shoring up its ability to be fair and impartial. And it helps the public by reassuring them that they will not find themselves in court before a judge who has received a check directly from the opposing party in their case.”

In an interview with Nina Totenberg of NPR, Brandenburg said the decision will help to protect the judiciary: “More and more people are realizing that the courts can’t be fair if the judges are not insulated from political pressure, and that insulation is getting eaten away by money.”

To read more on the case and its implications, see the following articles: USA TODAY, Supreme Court: ‘Judges are not politicians’ when it comes to fundraising; New York Times, When Good News is No News;  LA Times, States can ban elected judges from asking for campaign money, Supreme Court says; NPR, Court: Corporations May Be People, But ‘Judges Are Not Politicians'; and Huffington Post, Supreme Court Actually Upholds Campaign Finance Restrictions On Judicial Fundraising.

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Wisconsin Supreme Court Elects New Chief Justice

Patience pic

Chief Justice Patience Roggensack

A new Chief Justice of the Wisconsin Supreme Court was elected Wednesday after the constitutional amendment that changed how the chief is selected was certified, but the former chief insists she is still the top justice.

The Wisconsin State Journal reports that the court elected Justice Patience Roggensack as chief via an email vote but former Justice Shirley Abrahamson does not accept it and still believes she holds the position.

Abrahamson is suing to block any change to the selection process until her term ends in four years. A preliminary injunction hearing is scheduled for May 15.

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Wisconsin Chief Justice Uncertainty Remains

Chief Justice Abrahamson

Chief Justice Abrahamson

The Wisconsin Constitutional amendment changing how the Chief Justice of the state Supreme Court is selected that voters passed on April 7 has been certified but numerous questions remain unanswered.

The Milwaukee Journal Sentinel reports that an attorney representing five of the court’s seven justices said a vacancy would exist as soon as the vote was certified. However, longtime Chief Justice Shirley Abrahamson, who filed a federal lawsuit,  has maintained she remains chief justice for now (see Gavel Grab for background.)

Some of the court’s conservative majority want Justice Patience Roggensack as the top justice but Justice N. Patrick Crooks, who is known as a swing vote, has also expressed interest in becoming chief justice. The Court has not said when it will take a vote. Justice David Prosser said they should wait until the new term begins August 1.




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States Prepare for Marriage Equality Ruling

Activists and legislators alike are preparing for the U.S. Supreme Court’s ruling in Obergefell v. Hodges. Although the Washington Post reports both advocates and opponents of marriage equality expect the justices to declare the bans on marriages unconstitutional, many are preparing for the opposite ruling.

“The justices could specify how states should treat their ruling,” the article explains, “But the precise fallout would probably depend on the state.” Legislation would be passed on both sides of the issue, referendums would be expected, and the politics would be volatile across the country.

“It would be a mess,” said Dale Carpenter, a professor of constitutional law at the University of Minnesota, noting that marriage confers 1,100 rights and benefits at the federal level and hundreds more from the states, from filing taxes jointly to inheriting hunting licenses. “There would be great uncertainty in the aftermath of such a ruling. All kinds of possibilities we can’t even think of would arise.”

Arguments were held on April 28, and a decision is expected near the end of the term.

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