ABA-NCSC Summit Addresses Challenges to Fairness, Impartiality of State Courts

In May, delegations from thirty-seven states and territories participated in a national summit held in Charlotte, North Carolina, entitled Justice is the Business of Government: The Critical Role of Fair and Impartial State Courts. The summit, sponsored by the ABA’s Commission on Fair and Impartial State Courts in corporation with the National Center for State Courts (NCSC), focused on state court operations in the wake of the ongoing economic crisis, which has forced states to slash funding, cut back on operations, and raise filing fees in an effort to plug ever-widening holes in their budgets.

The goal of the summit was to leverage the expertise of the participants in order to foster discussion on how the three branches of government can work together to address these problems. Describing these goals, North Carolina Supreme Court Justice Mark Martin said that “[o]ur hope is that the summit will serve as a catalyst for stakeholders in the 37 participating jurisdictions to engage in a continuing dialogue about their respective justice systems…. The objective of this ongoing dialogue is to foster better collaboration and coordination among the three branches of government concerning the delivery of services within state justice systems.”¹

A number of prominent judges and subject matter experts participated, including retired U.S. Supreme Court Justice Sandra Day O’Connor, members of the highest courts of North Carolina, Massachusetts, Utah, Arizona, Ohio, and Indiana, as well as former Georgia Governor Roy E. Barnes, members of North Carolina’s General Assembly, representatives of the ABA and NCSC, and many others. Justice O’Connor delivered the keynote address, emphasizing the critical role state courts play in the nation’s legal system (state courts handle 98 percent of the nation’s caseload).  O’Connor identified several problem areas: disagreement over procedures for selecting judges, overcrowded dockets, sentencing policies and practices driven by overcrowded prisons, and discovery that is overly burdensome and expensive.²  

Focusing on judicial independence, an issue she has addressed frequently since leaving the high court bench, O’Connor stated that “[t]he health of our entire legal system depends on our having a strong, appropriate state judicial system,” and yet “we are confronting greater threats to judicial independence than in the past.”³ In particular, she said, a relatively new threat to judicial independence is the “flood of money coming into our courtrooms by way of increasingly expensive and volatile judicial elections.”⁴ She pointed to several guideposts illustrating this trend, from a $1 million judicial race in Texas in 1980 to more recent races in Illinois and Alabama costing $9 million and $5 million respectively.⁵

O’Connor also pointed to Caperton v. A.T. Massey Coal Co., Inc.⁶ (later reversed by the U.S. Supreme Court in a case argued in March and decided in June⁷), as an example of harm to state court systems resulting from excessive spending on judicial elections. Caperton involved a business dispute between two West Virginia coal companies. After a $50 million verdict in the Circuit Court of Boone County, the CEO of the losing party personally spent $3 million on advertisements attacking incumbent state Supreme Court Justice Warren McGraw. McGraw was defeated by Brent Benjamin. Though the argument was made that Justice Benjamin should recuse himself from the case because the $3 million in expenditures helped him get elected, he declined to recuse himself and was part of the 3-2 majority of the court in Caperton that voted to overturn the jury’s verdict.⁸

“It just doesn’t look good,” said O’Connor. “West Virginia cannot possibly benefit from having that much money injected into cases.”⁹ As a result of all this spending, O’Connor said, “[t]he public is growing increasingly skeptical of elected judges in particular,” citing surveys showing declining public trust in judges.¹⁰ Ultimately, she said, the risk is that the public will view judges as “just politicians in robes.” After her speech, O’Connor was even more direct in her assessment of judicial elections, telling the ABA Journal: “They’re awful. I hate them.”¹¹

Erwin Chemerinsky, dean of the law school at the University of California, Irvine, echoed O’Connor’s sentiments in his closing remarks, stating that “[t]he very nature of judicial elections has changed in the last decade” and concluding that the change “has not been beneficial for judicial independence.”¹² Still, Chemerinsky said that eliminating judicial elections altogether is likely unrealistic. Instead, he advocated other measures, such as campaign spending limits and taking recusal decisions out of the hands of sitting judges.¹³

O’Connor’s assessment of Caperton proved prescient. On June 8, the Supreme Court, in an opinion delivered by Justice Kennedy, held 5-4 that the Due Process Clause, on Caperton’s particular facts, required recusal.¹⁴ According to Justice Kennedy, “there are objective standards that require recusal when ‘the probability of actual bias on the part of the judge or decision maker is too high to be constitutionally tolerable’ …. Due process requires an objective inquiry into whether the contributor’s influence on the election under all the circumstances ‘would offer a possible temptation to the average... judge to.... lead him not to hold the balance nice, clear and true.’ ... we find that, in all the circumstances of this case, due process requires recusal.”¹⁵

Justice Roberts dissented, arguing that the majority opinion had opened a Pandora’s box that would ultimately undermine public confidence in the judiciary:

Today... the Court enlists the Due Process Clause to overturn a judge’s failure to recuse because of a “probability of bias.” Unlike the established grounds for disqualification, a “probability of bias” cannot be defined in any limited way. The Court’s new “rule” provides no guidance to judges and litigants about when recusal will be constitutionally required. This will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be. The end result will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case.¹⁶

Other aspects of the summit were also noteworthy. Stanford Law School professor Pamela S. Karlan presented the findings of a study commissioned by the NCSC regarding public attitudes toward the judicial system. According to the NCSC, the study is the “first ever survey to measure the public’s perceptions of how the executive, legislative and judicial branches work together on public policy issues that affect the administration of justice.”¹⁷ Notable findings of the survey include:

• Nine in ten survey respondents think it is important for the heads of the three branches of government to meet regularly to discuss justice system issues, and 74 percent support mandating such meetings by law.¹⁸ 
• Most survey respondents oppose cutting court services or raising fees in response to budget problems, including 85 percent who oppose ending jury trials.¹⁹
• 74 percent of respondents expressed “some” or “a lot” of confidence in the courts, compared to 66 percent for the executive branch and 65 percent for the legislative branch.²⁰
• 71 percent of respondents believe that their state supreme court should keep its ability to decide controversial issues, compared with 23 percent who believe its power should be restricted and it should decide fewer controversial issues.²¹

Justice Martin called the survey “very encouraging” because “it revealed strong public support for states to take all necessary steps to ensure that courts remain fair, impartial, and independent institutions.”²²

Other summit panels dealt with related topics, including identifying the challenges that the three branches of government face in promoting fair and impartial courts and presenting examples of how several states have approached issues affecting the courts. In connection with the summit, the ABA has made available on its website briefing papers and action plans addressing four issues: (1) Adequate Funding for the Courts; (2) Innovative Solutions to Challenges in State Court Systems; (3) Interbranch Communication and Cooperation; and (4) Maintaining and Increasing Public Respect for the Fairness and Impartiality of the Courts.²³ These materials advance many specific policy proposals, including:

• Predictable funding of state court systems not tied to fee generation.
• Giving state court systems flexibility in managing their budgets, including allowing court systems to move funds between line items and across fiscal years.
• Developing specialized courts in various areas, such as mental health courts, domestic violence courts, business courts, and medical malpractice courts.
• Providing resources and support to pro se civil litigants.
• Creating and supporting alternative dispute resolution programs.
• Developing and providing information in languages most commonly spoken by court users.
• Increasing the availability of interpreters.
• Increasing diversity on the bench.
• Developing performance measures for courts to provide accountability and clear standards.
• Facilitating regular meetings between representatives of the three branches, both informally and through the creation of interbranch commissions.
• Using outside groups such as bar associations to serve as intermediaries between the branches.

ABA president H. Thomas Wells, Jr., called the turnout at the summit “phenomenal” and said that “clearly where we go from here is back to the states.”²⁴ He emphasized that each state’s challenges are different, but that the summit “increased the energy level and the optimism” that the states have the ability to ensure that their courts remain just, fair, and impartial.²⁵

More information on the summit can be found on the ABA’s website, at http://www.abanet.org/op/nosearch/fisc/home.html.

* Joshua Davey is an attorney with McGuireWoods LLP in Charlotte, North Carolina, where he practices in the areas of financial services and commercial litigation.

 

Endnotes

1 North Carolina Bar Association, State Courts Summit Only the Beginning (2009), available at http://www.ncbar.org/news/1/3808/ index.aspx?print=tru (last visited June 29, 2009).

2 Anerican Bar Association News Release, Sandra Day O’Connor Cites State Budget Crises as Most Pressing Problem Confronting State Courts (2009), available at http://www.abanet.org/abanet/media/ release/news_release.cfm?releaseid=657 (last visited June 29, 2009).

3 Id.

4 Id.

5 Id.

6 No. 33350, 2008 WL 918444 (W. Va. April 3, 2008).

7 Caperton v. A.T. Massey Coal Co., Inc., No. 08-22, 2009 WL 1576573 (U.S. June 8, 2009).

8 Caperton, 2008 WL 918444, at *38.

9 American Bar Association News Release, Sandra Day O’Connor Cites State Budget Crises as Most Pressing Problem Confronting State Courts (2009), available at http://www.abanet.org/abanet/media/ release/news_release.cfm?releaseid=657 (last visited June 29, 2009).

10 James Podgers, American Bar Association News Release, O’Connor on Judicial Elections: ‘They’re Awful. I Hate Them’ (2009), available at http://www.abajournal.com/news/oconnor_chemerinsky_sound_ warnings_at_aba_conference_about_the_dangers_of_s/ (last visited June 29, 2009).

11 Id.

12 Id.

13 Id.

14 See Caperton v. A.T. Massey Coal Co., Inc., No. 08-22, 2009 WL 1576573, at *2257 (U.S. June 8, 2009).

15 Id.

16 Id. 

17 National Center for State Courts News Release, Poll: On Justice Issues, Americans Want Three Branches of Government at Table Solving Problems Together (2009), available at http://www.ncsconline.org/ D_Comm/PressRelease/2009/separate_branches-release.html (last visited June 29, 2009).

18 Id.

19 Id.

20 Id.

21 Id.

22 North Carolina Bar Association, State Courts Summit Only the Beginning (2009), http://www.ncbar.org/news/1/3808/index. aspx?print=tru (last visited June 29, 2009).

23 ABAnet.org, Action Plans for May 2009 Summit, available at http://www.abanet.org/op/nosearch/fi sc/actionnplan.html (last visited June 29, 2009).

24 ABAnet.org, ABA Online Media Kit, available at http://www. abavideonews.org/ABA2831/av.php?id=343&type=v (last visited June 29, 2009). 25 Id. 

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].