West Virginia’s appellate court crisis

Odd things are happening on the West Virginia Supreme Court.

On February 16, Chief Justice Allen Loughry was demoted and replaced as chief by Justice Margaret Workman. The unusual move, which followed a vote by the court’s other members, was apparently precipitated by a spending scandal. The court system spent more than $360,000 on Loughry’s office space since he joined the court in 2013, including a $32,000 couch. Loughry and the state court administrator pointed fingers at each other. The administrator has since been fired. In light of the crisis, the state senate voted to assume immediate legislative oversight of the judicial branch’s budget.

Shortly before these events transpired, Loughry also undertook a massive administrative reorganization of the West Virginia court system, consolidating 27 court divisions into only six. Several court administrators lost senior positions, and at least two supreme court justices strongly opposed the move. Justice Robin Davis told a reporter:

“I voted against the Court’s most recent Administrative Office reorganization for two critical and distinct reasons…. First, there is an appalling lack of clarity in the newly structured Court Services Division because there is no longer a distinct chain of command for each of the different types of courts comprising the judiciary.

“Collapsing magistrate courts, drug courts, family courts, and circuit courts under the same umbrella of supervision will severely hamper and drastically delay response time in answering critical questions and responding to the needs of these courts.

The “purported efficiency” of streamlining the division will in fact, actually restrict citizens’ access to justice and judicial resources, she stated.

As this crisis unfolds, legislators are separately debating whether to add an intermediate court of appeals to the state judiciary. West Virginia is one of only nine states without an intermediate appellate court, meaning that all appeals must be heard by the state supreme court, or not at all. Republicans in the legislature are pushing the change, with support from the U.S. Chamber of Commerce.

There are many advantages to adding an intermediate appellate court. For one, it would streamline the supreme court’s workload. It also carries the potential to lower the stakes of electing supreme court justices: if the supreme court were not the only appellate body in West Virginia, major donors would have less incentive to finance supreme court candidates. (And the historical corruption on the West Virginia Supreme Court as a direct result of election financing is well documented.) Of course, the same problem might just be manifested in the intermediate appellate court as well, but there is at least a chance for reform. Against these advantages is the cost: the tag for a new appellate court would be many millions of dollars.

It will be fascinating to see how these developments play out.  Can/will structural reform to the West Virginia courts bring an air of ethical reform as well?


Counting on the Low-Information Voter

The LSE Blog features some interesting new research by University of Texas Professor Brent Boyea on the intersection of partisan elections, campaign contributions, and professionalized courts. Looking at 12 years’ worth of data from state high court elections, Boyea found that campaign contributors are nearly twice as generous, on average, in states with partisan judicial elections than they are in states with nonpartisan judicial elections. He also found that “contributors support candidates more actively in states with professionalized courts where judges have higher salaries, advanced resources, and courts have freedom to decide their agenda.” And contributors are most generous when elections are partisan and courts are professionalized. This suggests, to me at least, that campaign contributors expect to get the most “bang for the buck” in states where a candidate’s election is all but assured on partisan grounds, and the elected judge will later have some freedom to act in a manner consistent with the contributor’s own agenda.

Somewhat related is this story out of Illinois, discussing how attorney Phillip Spiwack legally changed his name to Shannon O’Malley in advance of his campaign for a Cook County judgeship. Spiwack/O’Malley appears to be conceding to a stubborn reality of Chicago judicial elections: having an Irish woman’s name is an extraordinarily valuable commodity at the polls—more valuable, it seems, than professional experience, skill, or judicial temperament.

These items add to a growing body of evidence that in judicial election states, citizens are virtually expected to come to the polls armed with no more information than a candidate’s party affiliation or surname. How this advances the integrity, efficiency, or legitimacy of the judicial system is beyond me.

(Cross-posted at Prawfsblawg.)

Georgia judge faces contested election after prominent local attorney promises “blood sport”

Georgia Superior Court Judge Ralph Van Pelt, Jr., a twenty-year veteran of the bench, will be opposed for reelection for the first time after a local attorney threatened “blood sport” against him.

In late 2016, prominent local attorney Bobby Lee Cook wrote to Judge Van Pelt: “I want you to finish your two years remaining on your term and to qualify for re-election — if you have the stamina and resolve! There is nothing so interesting as a Northwest Georgia election where politics for generations has been a ‘blood sport.'” Cook was apparently infuriated by Judge Van Pelt’s position that Cook’s daughter–herself a local judge–was not qualified to serve as the circuit’s chief judge.

Cook, a lawyer since 1949, considers himself to be a local power broker.  He has represented many prominent Georgia families and was portrayed in the film “Midnight in the Garden of Good and Evil.” Cook credits himself with placing Van Pelt on the bench in 1996.

Last week, attorney Melissa Hise announced that she would challenge Judge Van Pelt in May’s election. Cook says he supports Hise’s candidacy but has nothing to do with it.

Van Pelt is more suspicious.  “As a general rule,” he said, “I don’t believe in coincidences.”


Ninth Circuit upholds Montana’s nonpartisan judicial election scheme

In another example of judges ruling on the status of other judges, a panel of the Ninth Circuit Court of Appeals has upheld the propriety of Montana’s nonpartisan judicial elections. The nonpartisan scheme was challenged by a judicial candidate who argued that his inability to seek, accept, or use political endorsements in his campaign violated his First Amendment rights. Citing recent Supreme Court precedent, the panel upheld the state’s restrictions on political endorsements.

The full opinion is here.

North Carolina judges try to stay neutral on selection fight

I have tracked the ongoing legislative battle in North Carolina over the selection of state judges. The judges themselves are caught in the middle, unable to comment in any direct or meaningful way. This article nicely demonstrates how sitting judges in the state are navigating the treacherous political waters.

Note that judges can — and sometimes do — comment on legislative issues that affect them. But most of the time that commentary goes to judicial salaries and resources, or other relatively apolitical issues affecting the judiciary as a whole. This selection debate is a political morass, and the judges are wise to stay out if they can.

Florida judge faces removal for ethics violations

Palm Beach County judge Dana Santino, who last spring admitted to serious ethics violations during her election campaign last November, is now asking the Florida Supreme Court to reject a recommendation that she be removed from office.

Santino admitted making statements disparaging her opponent’s criminal defense work–statements which were found to impugn the integrity of her opponent and the entire legal profession. After an investigation, the state Judicial Qualifications Commissions recommended that Santino lose her judicial position.

The state supreme court has yet to make a decision, and could still schedule oral arguments on the Commission’s recommendation. Judge Santino remains on the county civil court bench pending resolution of the matter.

North Carolina judicial selection update

It has been a while since I wrote about the political wrangling between North Carolina Governor Roy Cooper and the state legislature over the selection of state judges. But a lot has been going on.

Some background: North Carolina primarily elects its judges, with the governor filling vacancies on an interim basis as they occur. But there seems to be a general consensus that the current process is not functioning well. Contested (now partisan) elections, political gamesmanship with respect to filling judicial vacancies, and outworn judicial districts all have contributed to the malaise. The issue has become a flashpoint in recent months, in part because of a widely publicized tug-of-war between the state’s courts and its Republican legislature. The court system has struck down many significant pieces of legislation in recent months, leading to loud complaints from legislators.

In the last several weeks, under the guise of judicial reform, the state legislature has passed two bills that would radically remake the state’s judicial selection process–and with it, the state’s judiciary.

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