LITTLE ROCK — “Poisonous” and “toxic” judicial campaigns in other states disturb Arkansas Supreme Court Justice Robert L. Brown, especially knowing that within the next five years five members of the state’s highest court may retire, he said.
Brown leads the Arkansas Bar Association’s Task Force on Judicial Election Reform, which is looking at such things as how to respond to misleading advertisements and any influx of special-interest money. His aim is to prevent the sort of contentious campaigns some other states have experienced.
“It would be a good legacy, not for me but for the whole court, to put something in place that would assure that elections are handled in a civilized way and not unduly combative, because when they are combative ... it undermines confidence in the system,” Brown said.
Task force members had hoped to have something in place by the end of 2011, but lack of funding and ongoing court cases have led them to consider forming a nonprofit group to address the issue in the long term.
An Arkansas law that cuts off retirement benefits for judges who run for re-election after turning 70 could mean that by 2016 the state’s highest court will lose its five most experienced members out of the seven on the bench.
In September, Brown announced that he will retire Jan. 1, 2013, two years before his term expires. Justice Jim Gunter has announced that he plans to retire at the end of 2012.
Three other judges may choose to retire because of Arkansas Code Annotated 24-8-215, which states that a judge or justice must retire by his 70th birthday if he is eligible to receive retirement benefits or he will lose the benefits. A judge or justice who turns 70 during a term may serve until it ends without giving up the retirement benefits.
Justice Donald Corbin will be older than 70 when his term expires in 2014, and Chief Justice Jim Hannah and Justice Paul Danielson will both be older than 70 when their terms expire in 2016. Corbin, Hannah and Danielson have not said whether they plan to retire.
The two members of the court elected in 2010 are younger. Justice Karen Baker is 48 and Justice Courtney Hudson Goodson is 39.
Brown said the task force formed to address circumstances that have occurred in other states’ elections, like millions donated to judicial campaigns by political parties and lobbying groups in Michigan, same-sex-marriage foes spending about $1 million in 2010 to campaign against three Iowa Supreme Court justices who struck down the state’s ban on same-sex marriage, and misleading ads about judges’ stances on the death penalty in California and Tennessee.
State Sen. Gilbert Baker, R-Conway, said task force members are wasting time by circling the wagons against other viewpoints.
“The people don’t like the idea, and if judges want to be thrown out on their ear they will try to eliminate the people’s involvement and eliminate free speech,” he said. “ It’s constitutionally abhorrent, and they know that.”
Brown said judicial elections in other states are “just out of control.”
“That’s the kind of thing we are trying to nip in the bud,” Brown said. “I don’t think the tone recently in Arkansas compares to what’s being done in other states.”
THE ROLE IT PLAYS
Political parties and political action groups played a role in the campaigns for two open state Supreme Court positions in 2010, but not to the extent they have in other states, Brown said.
Arkansas voters OK’d Amendment 80 in 2000, which mandates nonpartisan judicial elections. It passed with 57 percent of the vote. Previously, judges ran in partisan primaries and were identified on the general election ballot as being a member of a political party. Brown, Corbin and Hannah all ran as Democrats before the amendment went into effect.
The Arkansas Code of Judicial Conduct also prohibits political involvement and campaign activity “inconsistent with the independence, integrity or impartiality of the judiciary.”
During her 2010 campaign, Karen Baker, then a Court of Appeals judge, accepted $250 from the Van Buren County Republican Party, $1,000 from the Van Buren County Democratic Central Committee and $50 from the Hot Springs County Democratic Women.
At the time, David Stewart, executive director of the state’s Judicial Discipline and Disability Commission, said there had been no ruling by the commission on whether political party contributions may be accepted by judges. He said there is no specific rule that bans it, but he was not sure it is appropriate.
Karen Baker’s opponent, Pulaski County Circuit Judge Tim Fox, said at the time that he had decided not to accept any donations from political groups. He did accept a $2,000 contribution from the Committee to Save Arkansas Jobs PAC, $500 from the Arkansas for Rural Development PAC, $1,000 from the Arkansas State Farm Association PAC known as ARSFA and $1,000 from the Arkansas State Chamber PAC.
Fox’s campaign issued a flier bearing the Republican Party’s elephant logo and naming Fox as the party’s “preferred candidate.”
Goodson, who won the other high-court seat in 2010, also accepted donations from PACs, including $2,000 from ARSFA PAC Inc., $2,000 from the Committee to Save Arkansas Jobs PAC, and $500 from the Arkansas Medical Society PAC.
Her opponent, Crittenden County Circuit Judge John Fogleman, also accepted $500 from the Medical Society PAC and $200 from the Pine Bluff National Bank PAC.
All Supreme Court candidates during the previous election cycle raised more in contributions for their campaign than the annual salary for the position, which is $145,204 for associate justices and $156,864 for the chief justice. The 2010 campaigns for the two open state Supreme Court positions cost candidates between $340,439 and $657,452.
Karen Baker reported $169,928 in contributions and lent her campaign an additional $296,000. Fox reported raising $389,792.87 in contributions and made $54,997.74 in loans to his campaign.
Goodson reported raising $574,737.54 and had $111,302.53 in loans. Fogleman reported raising $328,258.98 and had$26,385.29 in loans.
The top amount spent on an Arkansas’ Supreme Court election has quadrupled in the past decade.
In 2010, Goodson spent $657,452 to win her race. In 2000, Hannah spent $151,230.
RAPID RESPONSE
The task force wants a dedicated group of Arkansas Bar Association members, judges and citizens who can quickly rebut misleading advertisements about judicial candidates, Brown said.
He said the group would not weigh in on small arguments or pick sides.
“It’s got to be done right. It’s got to be an egregious situation,” Brown said. “It’s not a close ‘Is he right? Is she right?’ situation.”
Similar groups exist in other states.
University of Kentucky Law School professor Bill Fortune said at the task force’s Sept. 9 meeting that the Kentucky rapid-response team addresses candidates making improper pledges or promises, misrepresentations or attack ads. He said the team asks candidates to retract statements, issues letters for the opposing candidates or issues news release of their own.
Brown said the response team would have to mobilize quickly.
“In this age of tweeting and Facebook and that sort of thing, a virulent message can get out very quickly and expansively throughout the state,” Brown said. “There has to be something to counter it.”
Gilbert Baker said such a team limits free speech and public involvement in judicial elections.
“Now they are talking about a rapid-response team that would negate people’s opportunity to say, ‘No, they are wrong’? It seems awfully self-serving to me,” Baker said. “People have to be involved. That’s how democracy works, and it works the same with all three branches of government. We have this view that somehow democracy and individual involvement is somehow not supposed to touch the judiciary. That is just a wrong view.”
JUDICIAL PLEDGE
The task force’s plan to have judicial candidates pledge not to misconstrue their opponents’ records and to follow the court’s code dictating judges’ behavior was put on hold until the U.S. Court of Appeals resolves cases where judges in different districts made conflicting decisions about whether such a pledge violates free speech rights.
The 8th U.S. Circuit Court of Appeals decided in the Wersal v. Sexton case that the Minnesota Judicial Canons’ ban on judicial candidates endorsing other candidates and its ban on judges personally asking for contributions violated a judicial candidate’s First Amendment speech rights.
A canon is a standard of ethical behavior.
Stewart said the case was reheard by all members of the appeals court, and an opinion could be issued in January. He said the task force should wait because Arkansas has the same prohibitions in its judicial canons.
The Wersal decision is contrary to two recent decisions by the 7th U.S. Circuit Court of Appeals that upheld state rules prohibiting endorsements and in-person solicitations by judicial candidates. Those cases are Seifert v. Alexander and Bauer v. Shepard.
Task force member Pulaski County Circuit Judge Mary McGowan said the different opinions could mean the U.S. Supreme Court will eventually decide the matter.
VOTER GUIDE
To change the tone of campaigns, voters must know the candidates running for election, Brown said.
“People need to be concerned about the persons who occupy these seats, because it’s so important. They need to study these elections and look at who wants to sit on the Supreme Court,” he said.
In early December, the Arkansas Bar Association’s board of governors shot down a task force plan to mail a printed guide containing information about judicial candidates to each registered voter. The guide would include a biography, photograph and comments from each judicial candidate. The task force will keep looking for a way to pay for a guide, Brown said.
The task force decided to publish online the biographical information for the candidates for the open appellate seats in the May 2012 election.
Brown said one possibility is that the Administrative Office of the Courts staff could collect and edit the biographical information from the candidates and post it online.
Gilbert Baker, the Senate Budget Committee chairman, said the task force needs to verify that the Administrative Office of the Courts may do that.
“Nobody has checked with folks in the Legislature about that. I will lead the charge to say absolutely not. Justice Brown is not going to have state money to put out a voters guide on how he feels about issues. Absolutely not,” he said.
TORT CHANGES
On Dec. 8, the Arkansas Supreme Court struck down part of an 8-year-old state law that limited damage awards against businesses, ruling that the Legislature violated the state constitution when it capped punitive-damages awards.
Some lawmakers said after the ruling that the court went too far and took away the Legislature’s power to make law.
In the Lonoke County lawsuit, Bayer Crop-Science LP et al vs. Randy Schafer et al., Circuit Judge Phillip Whiteaker ruled from the bench that the punitive-damages cap was unconstitutional. The Supreme Court upheld that ruling.
Whiteaker is running for a Court of Appeals position, and Gilbert Baker said he will likely have an opponent because of the ruling.
“Up until now elections have had consequences in the executive branch and the legislative branch but the judicial branch has been kind of off limits, where people just aren’t supposed to know judicial temperament, views on the constitution and that is changing by the hour,” he said. “I think there will be a strong judicial opponent to somebody who holds that view.”
The State Chamber of Commerce said in a statement at the time that the ruling could have far-reaching consequences on business and job growth.
Chamber Vice President Kenny Hall said the chamber will wait to see who else files to run for the seat before deciding whether to get involved.
Information for this article was contributed by Alison Sider of the Arkansas Democrat-Gazette.
Front Section, Pages 1 on 01/02/2012