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Electing judges best, says justice

Goodson weighs in; others in legal field suggest change by Lisa Hammersly | January 28, 2016 at 5:45 a.m.
Arkansas Supreme Court Justice Courtney Goodson is shown in this file photo.

Arkansas Supreme Court Justice Courtney Goodson affirmed her support Wednesday for electing members of the state's highest court even as others, including Gov. Asa Hutchinson, want to consider different methods for choosing justices.

Retired Supreme Court Justice Robert Brown is shown in this file photo.

Also, lawyers and judges, including retired Supreme Court Justice Robert Brown, are talking about changes to the Arkansas Code of Judicial Conduct regarding campaign contributions and court decisions.

"Many in the legal establishment wish we could do away with judicial elections, but I do not," Goodson said in a statement. "I believe judges should be accountable to the people, not the special interests."

Calls for changes in the way state Supreme Court justices are chosen and to the judicial code of ethics follow a three-day series of articles by the Arkansas Democrat-Gazette that reported that six law firms that have worked together on class-action civil cases in the state are among the biggest campaign donors to the elected justices now on the court.

Goodson, who is running for chief justice this year, is married to John Goodson of the Keil & Goodson law firm of Texarkana, one of the class-action firms that donate to the justices' campaigns.

Courtney Goodson's 2010 high-court campaign reported $142,500 in contributions from the six firms, more than any Supreme Court candidate. Those donations made up about $1 of every $4 raised by her campaign, campaign-finance records show.

The newspaper's "Cash & The Court" series reported that Keil & Goodson and five firms from Texas, Oklahoma and Pennsylvania have contributed an estimated $296,000 to the campaigns of Justices Goodson, Karen Baker, Robin Wynne, Paul Danielson, Josephine Hart and Rhonda Wood. The series can be found at arkansasonline.com/cashandthecourt/.

The justices also have heard cases involving the law firms and decided in their favor, the newspaper reported in its series. The decisions led to settlements that included millions of dollars in legal fees for those firms.

The state's court system also operates under rules and procedures that are among the friendliest in the nation for class-action lawsuits, according to law professors. Those rules help class-action plaintiffs and their lawyers win, experts say. The state's high court adopts and maintains those rules.

Courtney Goodson recuses from her husband's cases, as state ethics rules require, but does weigh in on other class actions that help maintain the state's favorable court procedures for those cases.

In a telephone interview Wednesday, Hutchinson said he supports most judicial elections but believes "the debate is whether there should be a different selection method for Supreme Court or appellate judges."

He sees "a growing interest" in looking at methods for appointing justices. Possibilities include merit selection-retention approaches like one used in Missouri, where judges are initially appointed, then stand for election later.

Arkansas legislators also have talked about an appointment system similar to the federal government's, with the governor appointing high-court justices and the state Senate confirming, he said.

Rep. Matthew Shepherd, R-El Dorado, a lawyer and chairman of the House Judiciary Committee, has introduced legislation promoting merit selection for justices.

"There is no perfect system. Merit selection isn't perfect but gives us the best opportunity to hopefully insulate the Supreme Court from some of the outside influence or appearance of outside influence."

"Over the last three or four years, there has been a growing interest" in appointing high court justices, Shepherd said. "I think it's a viable option.

Changing the way Arkansas selects its judges, going from election to some kind of appointment system, "would require a constitutional amendment" that would go before voters, said David Sachar, executive director of the Arkansas Judicial Discipline and Disability Commission.

It could be initiated by the Legislature or the public, Sachar said.

"The independence of the judiciary is the most important thing," he said. "Are they more independent when they're elected and beholden to contributors, or when they're appointed and are beholden to the political powers that put them there? That will be the debate."

Any changes to the state's Code of Judicial Ethics regarding campaign contributions and recusal from donors' cases have to be approved by the state Supreme Court, he said. The commission has been involved in reviewing and suggesting ethics changes.

Brown, the retired justice, says he thinks it's time to look at changes in judicial ethics' rules for elected justices.

"I think you have to do something about the money," said Brown, who left the high court in 2012. "That's what it comes down to."

He and other justices say they have complied with rules that require all judges to cover their eyes to campaign donations and donors, to help avoid conflicts of interest in deciding cases.

Now, Brown says, it may be time for judges to open their eyes so they can remove themselves from cases involving their campaign contributors.

If judges keep apprised of campaign donations, "you'd have the potential for a judge to say, 'I know such-and-such contributed to my campaign, and I'm going to recuse' from a case involving him," Brown said.

Arkansas Bar Association President Eddie Walker said Wednesday that he's not aware of any effort now to tighten judicial ethics regarding campaign contributions and case decisions for elected judges.

But he said he expects that "the bar will at least discuss those issues in view of the information that has come to light in the last week or so."

Saline County Circuit Judge Gary Arnold, a director for the Arkansas Judicial Council, which is made up of state judges, said he expects that a lot of other judges are "trying to digest and analyze all that information [in the newspaper's series] and think about what, if anything, the Judicial Council ought to do to address those concerns.

"And clearly there are concerns. ... I know it will be a topic of discussion among judges."

Little Rock attorney Scott Trotter, former executive director for Common Cause Arkansas, a citizens lobbying group promoting honest, accountable government believes that stiffer rules and court decisions should -- and may in the future -- apply to judicial elections, particularly regarding disclosure of contributors' names.

Trotter thinks, for example, that the U.S. Supreme Court's 2010 Citizens United decision, which allows independent groups to keep their donors secret, might not apply to judicial races, if tested.

He would like Arkansas to carve out special provisions governing judicial races, such as a list of permitted types of contributors.

Trotter also thinks that Arkansas' present ethics rules asking judges to purposely stay unaware of donors and their contributions "are probably not very effective."

"Many, many times I've gone to a fundraising event for a judicial gathering. You walk in, write a check and put it in the basket at the little reception table, just a few feet away from the candidate. And everybody in the room is somebody who has contributed. The judge either knows who you are, or you go up and shake his hand, and then the judge knows who you are."

David Stewart, retired executive director of the Arkansas Judicial Discipline and Disability Commission, said: "If we continue to elect our judges, I would advocate a requirement that all donations to the campaign or to a political action committee, and all independent expenditures supporting or opposing the candidate be reported."

If the total donated or spent for or against the candidate exceeded a set percentage, "the judge or justice would automatically be disqualified from sitting on a case involving those interests," he said.

Stewart favors appointing justices.

Courtney Goodson was the only elected justice to respond to questions Tuesday or Wednesday about possible changes to the Arkansas Code of Judicial Conduct or the method of selecting Supreme Court justices.

Chief Justice Howard Brill said through a spokesman that he isn't commenting on those issues. A law professor and judicial ethics expert, Brill was appointed to the high court in August, and his term will expire at the end of this year. He is the only justice who reports no campaign contributions from the class-action law firms or anyone else.

In addition to Keil & Goodson in Texarkana, other law firms among the biggest donors to the current Supreme Court are Nix Patterson & Roach of Daingerfield, Texas; Kessler Topaz Meltzer & Check of suburban Philadelphia; Crowley Norman of Houston, Texas; attorneys Reggie Whitten and Michael Burrage of Oklahoma, affiliated with several firms over the past dozen years; and attorney Jason Roselius of Oklahoma, also with multiple law firms, according to case records.

Representatives of the law firms have not responded to repeated requests for interviews.

A Section on 01/28/2016

Print Headline: Electing judges best, says justice

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