Amicus Curiae Brief — Republican Party of Minn. v. White

12

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(4) FILED

No. 01-521 JAN 17 20

In The —

Supreme Court of the United States

*

REPUBLICAN PARTY OF MINNESOTA, et al,,

Petitioners,

KELLY, et al.,

Respondents.

0

On Writ Of Certiorari To The

United States Court Of Appeals

For The Eighth Circuit

¢

BRIEF AMICUS CURIAE OF THE IDAHO

CONSERVATION LEAGUE AND THE LOUISIANA

ENVIRONMENTAL ACTION NETWORK IN

SUPPORT OF NEITHER SIDE

*

J ore D. EcHEVERRIA

Counsel of Record

GEORGETOWN ENVIRONMENTAL LA

AND Pouicy INstITUTE

Georgetown University

Law Center

600 New Jersey Avenue, N.W.

Washington, D.C. 20001

(202) 662-9850

January 17, 2002

Supreme Court, US.

-_

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTERESTS OF AMICI CURIAE

INTRODUCTION AND SUMMARY OF

Special Interests Engage in Extensive Political

Activity in State Judicial Elections In Order to

Influence the Outcome of State Court Cases and

to Change the Content of the Law

A. The Politicization of the State Judicial Elec-

toral Process

. Business Community Efforts To Influence

Judicial Elections

C. Select Battlefield States

. The Highly Politicized Nature of State Judicial

Elections Undermines the Possible Effectiveness

of Rules Limiting Speech and Other Political

Activity of Judicial Candidates

State Judicial Election Procedures Violate Liti-

gants’ Rights Under the Due Process Clause to

Have Their Cases Heard by Fair and Impartial

ii

TABLE OF AUTHORITIES

Page

Cases .

Aetna Life Insurance Co. v. LaVoie, 475 U.S. 813

. . ..oder 25, 29

Buckley v. Valeo, 424 U.S. 1 (1976)))) 22, 23

Burson v. Freeman, 504 U.S. 191 (1992)............... 20

Concrete Pipe & Products v. Construction Laborers

Pension Trust, 508 U.S. 602 (1993)ÿh)ÿ)̊ÿͤ·/)ꝛ 25

Eu v. San Francisco County Democratic Cent. Comm.,

. e.. 20

In re SRBA, 1999 WL 778325 (Id. 1999).............. 12

Joint Anti-Fascist Committee v. McGrath, 341 U.S.

L 25

Marshall v. Jericho, 446 U.S. 238 (1980 25

Meredith v. Ieyoub, 700 So.2d 478 (La. 1997)....... 16, 17

Potlatch Corp. v. United States, 12 P.3d 1260 (Id.

„ een ee 14

Public Citizen, Inc. v. Bomer, 115 E. Supp. 2d 743

. ede 24

Republican Party of Minnesota v. Kelly, 247 F.3d 854

L 22

Roe v. Mobile County Appointment Board, 676 So. 2d

an.. . ae ee beeen 28

Shepherdson v. Nigro, 5 F.Supp.2d 305 (E. D. Penn. ,

. . . oed ee eS 27, 28, 29

Ward v. Village of Monroeville, 409 U.S. 57

. . .net 25, 29

iii

TABLE OF AUTHORITIES - Continued

ARTICLES

Anthony Champagne, “Interest Groups and Judi-

cial Elections,” 34 Loy.L.A.L.Rev. 1391 (2001)...

Christine Durham, “The Judicial Branch in State

Government: Parables of Law, Politics, and

Power,” 76 N.Y.U.L.Rev. 1601 (2001)............

John D. Echeverria, “Changing the Rules by

Changing the Players: The Environmental Issue

in State Judicial Elections,” 9 N. V. U. Envri L.

Page

Rev. 217 (20017). 4, 8, 10, 11, 15, 18

Deborah Goldberg & Mark Kozlowski, “Constitu-

tional Issues in Disclosure of Interest Group

Activities,” paper prepared for Symposium on

Judicial Campaign Conduct and the First

Amendment (Chicago, November 9-10, 2001)...

Kyle Johnson, “Raising Money: Judges on the

Campaign Trail,” CTs ScrENcE MonrTOoR

(August 13, 1998)))ʒ .. „

Roy A. Schotland, Financing judicial Elections,“

in FINANCING THE 2000 Execrions (Magleby, ed.,

Brookings, forthcomingng )))

National Center for State Courts, How the Public

Views the State Courts (May 14, 1999 /ũ ⁰ o

Boos

Philip L. DuBois, From BAT To BRN, JUDICIAL

ELECTIONS AND THE QuEST FOR ACCOUNTABILITY

(19BO) .. n q . *

„ „ „

iv

TABLE OF AUTHORITIES - Continued

UNCERTAIN Justice: Pourncs AND America’s Courts;

THE Reports or CrrizeNs FOR INDEPENDENT COURTS

. conecveeesssubanceasinbens

MISCELLANEOUS

2 ABA Task Force on Lawyers’ Political Contribu-

tions to Judges and Judicial Candidates (1998)

American Judicature Society, Judicial Selection, at

http: //www.ajs.org/select.html .................

Frontline: Justice for Sale (PBS television broad-

II Gs ME odbc ncckdddcddeckcécacc

INTERESTS OF AMICI CURIAE

Amici curiae are environmental organizations which

participate in litigation in the state courts. Amici have an

interest in this case because the judicial election systems

in some states threaten to undermine their rights and the

rights of their members under the Due Process Clause to

fair and impartial justice. (Amici and their interests in

state judicial elections are set forth in greater detail in the

appendix).?

¢

- INTRODUCTION AND SUMMARY OF ARGUMENT

“Independence means you decide according to

the law and the facts. Law and facts do not

include deciding according to campaign contri-

butions. And if that’s what people think, that

threatens the institution of the judiciary. To

threaten the institution is to threaten fair admin-

istration of justice and protection of liberty.”

Justice Stephen Breyer?

The First Amendment issues in this case, though

unquestionably important, illuminate only a narrow

aspect of a larger problem: the extreme politicization of

1 Counsel for the parties have consented to the filing of this

brief, as indicated in a letter lodged with the Court. No counsel

for a party in this case authored this brief in whole or in part,

and no person or entity, other than the amici and their counsel,

made a monetary contribution to the brief’s preparation or

submission. See Rule 37.

2 Frontline: Justice for Sale (PBS television broadcast,

November 23, 1999).

2

the elected state judicial systems and the fundamental

due process issue that this relatively new political phe-

nomenon creates. Amici submit this brief in an effort to

assist the Court in evaluating the larger historical, politi-

cal, and legal contexts from which this case arises.

Over the last several decades, and especially in the

last few years, judicial elections in a number of states

have become indistinguishable from the rest of the Amer-

ican political process, complete with large campaign con-

tributions, “independent expenditures” by special-

interest groups, raucous personal and partisan attacks on

candidates, and massive television and print advertising.

The high cost of judicial campaigns has created the wide-

spread public belief that “justice is for sale,” undermining

both the state courts as institutions and the impartial

administration of justice. A recent development of partic-

ular concern to amici is the nationwide campaign by

certain elements of the business community to alter the

composition of the state courts with the express goal of

altering the law on, among other subjects, the environ-

ment. In several recent high-profile environmental cases,

the evidence strongly supports the inference that the

outcomes were determined by aggressive electoral politi-

cal activity, rather than by the law or the facts in the

particular cases.

The amici take no position on the First Amendment

issues in this case. Nonetheless, the evidence presented in

this brief relating to the politicization of the state court

systems may be relevant to the resolution of these issues.

Restrictions on speech and political activity must serve a

“compelling” purpose and must be “narrowly tailored”

to achieve the stated purpose. Protecting judicial inde-

pendence and impartiality is unquestionably a compel-

ling purpose. But there appears to be a substantial

questic: in many states, including Minnesota, whether

regulating speech and other political activities of judicial

candidates can actually achieve this purpose. Given that

judicial independence and impartiality already are

severely compromised by other types of political activity,

it is debatable whether these important judicial attributes

can be preserved by restrictions which focus narrowly on

candidates’ speech and political activities. In addition, it

is also debatable whether restrictions on speech and

political activity by judicial candidates can meet the

requirement that restrictions on First Amendment free-

doms be narrowly tailored. Like some other states and

the federal government, Minnesota could adopt the

appointive, “merit selection” approach, which would pro-

tect the independence and impartiality of the courts,

without the need to restrict First Amendment freedoms.

Finally, the more fundamental constitutional issue

raised by this case is whether the selection of judges at

the ballot box, especially in light of the relatively recent,

extreme politicization of judicial election contests, com-

ports with the requirements of due process under the

Fourteenth Amendment. The Court has repeatedly and

jealously guarded the rights of litigants to impartial

courts under the Due Process Clause. Before a citizen can

be deprived of a protected interest, he or she is entitled to

a judge who is not in a situation which will offer a

“possible temptation” which would lead the judge “not to

hold the balance nice, clear, and true.” In enforcing this

guarantee, the Court has emphasized that the appearance

of impartial justice is just as important as the reality.

Increasingly, the elected courts in many states do not

meet this constitutional standard. The Court should take

this opportunity to sound the alarm about the increas-

ingly fragile justice system in many state courts.

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ARGUMENT

I. Special Interests Engage in Extensive Political Activ-

ity in State Judicial Elections In Order to Influence

the Outcome of State Court Cases and to Change the

Content of the Law.

A. The Politicization of the State Judicial Electoral

Process.

Judges stand for election of some type in thirty-nine

states.“ Partisan elections are conducted in sixteen states;

nonpartisan elections are held in seventeen states; and

twenty states hold “retention” elections in which sitting

judges are on the ballot seeking “yes” votes for another

term but there is no direct opponent. In other states, the

governor appoints judges; and in yet others the governor

appoints judges with the concurrence of the legislative

branch, as in the federal system.

3 See 2 ABA Task Force on Lawyers’ Political Contributions,

Report and Recommendations Regarding Contributions to

Judges and Judicial Candidates 7 (1998); see also John D.

Echeverria, “Changing the Rules By Changing the Players: The

Environmental Issue in State Judicial Elections,” 9 N.Y.U. ENV.

L. Rev. 217, 302-03 Appendix (2001) (updating ABA data for

Arkansas and Idaho).

Elected state judiciaries are generally viewed as a

product of nineteenth century Americans’ enthusiasm for

direct democracy. “The concept of an elected judiciary

emerged during the Jacksonian era as part of a larger

movement aimed at democratizing the political process in

America. It was spearheaded by reformers who con-

tended that the concept of an elitist judiciary . . . did not

square with the ideology of government under popular

control.“! As a result, a number of states converted to an

electoral process, and between 1846 and 1912 every new

state that joined the union established an elected judici-

ary.

In the past, by tradition if not by law, state judicial

elections were relatively low key.5 Campaigns were inex-

pensive, candidates did not solicit campaign contribu-

tions from those who might appear before the courts, and

candidates avoided discussions of how they might rule

on particular legal issues. Independent groups, with the

exception of the state bar associations, did not participate

in any meaningful fashion. For better or for worse, judi-

cial elections were largely devoid of substantive content.

Elections, when they were contested at all, were generally

determined by the candidates’ public reputations, the

public’s familiarity with the candidates, or even the

attractiveness of a candidate’s name.

4 Philip L. DuBois, From BA r To BH,, JUDICIAL ELECTIONS

AND THE Quest ron ACCOUNTABILITY 3 (1980).

5 See generally UNceRtTAIN Justice: PouiTics AND AMERICA’S

Courts; THE Reports or Crmzens ron INDEPENDENT Courts 87-88

(1999).

Today, unfortunately, state judicial elections are

essentially indistinguishable from the rest of the Ameri-

can political process, complete with large campaign con-

tributions, “independent expenditures,” raucous personal

and partisan attacks on candidates, and massive televi-

sion and print advertising. Special interest participants in

the process include law firms, associations of trial law-

yers, labor unions, state chambers of commerce, and

many others. For some groups, participation in the judi-

cial electoral process is simply an extension of traditional

political activity focusing on the legislative and executive

branches.

The state judiciary represents the last, disappearing

frontier in terms of big-money influence in American poli-

tics. The cost of judicial campaigns has increased at a gallop;

according to a 1998 report, judicial campaign costs for the

Wisconsin Supreme Court increased by 800% since 1979, and

judicial election costs increased by the same factor in Ala-

bama since 1986.6 In November 2000, during the last major

round of state elections, expenditures reached a new all time

high, especially by “independent” special interests. Accord-

ing to one estimate, entities other than candidates (including

political parties) spent over $16,000,000 in the five states with

the most expensive elections: Alabama, Illinois, Michigan,

Mississippi, and Ohio.”

6 See Kyle Johnson, “Raising Money: Judges on the

2 Trail,” Cristian Scrence Monrror, at Al (August 13,

7 See Roy A. Schotland, “Financing Judicial Elections,” in

FINANCING THE 2000 ETC ions (Magleby, ed., Brookings,

forthcoming).

7

The high cost and contentiousness of many judicial

elections has fostered the widespread belief that “justice

is for sale” in many states. A recent national public opin-

ion survey found that eighty-one percent of respondents

believed that “[j]udges decisions are influenced by politi-

cal considerations,” and that seventy-eight percent

believe “[eJlected judges are influenced by having to raise

campaign funds.“s These national survey results are con-

firmed by supportive data from numerous state-level sur-

veys.?

Even before the recent, extreme politicization of the

judicial electoral process, professional and academic

opinion had turned against the concept of an elected

judiciary. The American Bar Association has long favored

moving towards merit appointment systems and other-

wise limiting special-interest influence over judicial selec-

tion. 10 The American Judicature Society was originally

established principally to pursue merit appointment. l

This platform is based on the viewpoint that an electoral

process is inherently political and that elections therefore

necessarily undermine the independence and impartiality

8 See National Center for State Courts, How the Public

Views the State Courts 41-42 (May 14, 1999).

9 See Anthony Champagne, “Interest Groups and Judicial

Elections,” 34 Loy.L.A.L.Rev. 1391, 1408 (2001) (collecting state

polling data).

10 See generally 2 ABA Task Force on Lawyers’ Political

Contributions, Report and Recommendations Regarding

Contributions to Judges and Judicial Candidates (1998).

11 See American Judicature Society, Judicial Selection, at

http:/ /www.ajs.org/select.html.

of the courts. Notwithstanding, this thinking, the judicial

electoral process remains a robust institution in most

states. Many reformers, discouraged at the prospect of

eliminating state judicial elections through the political

process, have turned to various “second best” solutions,

such as increasing the transparency of election financing,

promoting public funding of judicial elections, or (as

illustrated by this case) controlling direct political advo-

cacy by candidates for judicial office.

B. Business Community Efforts To Influence Judi-

cial Elections.

In the last several years, elements of the business

community have mounted a concerted campaign to influ-

ence the outcomes of state judicial races in order to

change the content of state law on issues of importance to

business. Environmental law has been at the forefront of

this new effort.

The Oklahoma Group. 12 A group of Oklahoma-based

lobbyists, lawyers and business people, many with close

connections to Koch Industries, a large privately-held

company with major interests in petrochemicals, was the

initial leader of the effort. Probably not coincidentally,

Koch Industries has been the target of numerous federal

and state environmental enforcement actions, and

recently paid the largest civil fine ever imposed for viola-

tions of U.S. environmental laws. Operating initially

under the name “Citizens for Judicial Review“ and

22 Unless otherwise noted, this material is drawn from John

D. Echeverria, supra note 3, at 225-234.

subsequently as the “Economic Judicial Report” — the

Oklahoma group created a nationwide franchising opera-

tion for pro-business advocacy in state judicial elections.

A 1996 fund-raising letter to various business leaders

described the group’s original plan. CJR proposed pre-

paring state-by-state evaluations of the voting records of

state judges and distributing the results to “pro-business

opinion leaders.” This project was needed, CJR con-

tended, because “the judiciary has a dramatic and often-

overlooked effect on investment and employment deci-

sions made by businesses.” The initiative would, among

other things, address the problem that some businessmen

“are unaware of the negative economic effects which can

result from judges who maintain unsound economic ide-

alogies [sic].” The proposal described a budget for the

eight-state effort of $1 million, and indicated that “[a]ny

additional dollars” above and beyond the $1 million

would “go toward funding a $3.5 million national pro-

gram.” The letter predicted that the effort “will have a

very significant impact on judicial behavior and create

positive cost results in our state, region, and nation.” The

goal, in short, was to raise money to support political

activity in order to change the content of the law and

thereby improve conditions for business.

Since its formation, the Oklahoma group has been

solely or partly responsible for producing judicial perfor-

mance reports in at least eight states, including Alabama,

Florida, Louisiana, Michigan, Mississippi, Oklahoma,

Pennsylvania, and Texas. The reports evaluate judges’

“pro-business” performance based on an analysis of how

judges have decided a small sampling of cases in differ-

ent subject areas, including environmental regulation,

10

employment, insurance, products liability, and so on. The

rulings in each category are tabulated to produce an

overall pro-business favorability rating, ranging from

100% pro-business to 0%. The evaluations treat judicial

rulings as being indistinguishable from legislative votes,

ignoring the fact that judges who conscientiously perform

their duties may often arrive at results which they do not

prefer as a matter of policy. The media in different states

has given extensive coverage to these reports, and they

have provided the basis for various organizations’ deci-

sions about which candidates to endorse.

U.S. Chamber of Commerce. is Apparently building

upon the work initiated by the Oklahoma group, in 1998

the U.S. Chamber of Commerce formed the Institute for

Legal Reform, one of the stated objectives of which is

“rating and endorsing highly qualified candidates for

judicial elections in certain key states.”

An article published in summer 1999 provides a sum-

mary of the goals and objectives of the Institute. Accord-

ing to its president, the Institute was created because

“[t]he Chamber realized that the business community

was concerned” about what he called the “growing threat

of abusive, frivolous and excessive litigation.” The project

had a steering committee made up of corporate leaders,

with funding coming from “businesses around the coun-

try.” The Institute conducts “media campaigns which

include press releases, op-ed pieces, letters to the editor,

13 Unless otherwise noted, this material is drawn from John

D. Echeverria, supra note 3, at 235-37.

— —

11

publishes pamphlets, holds conferences and even, on

occasion, purchases ad time or space.”

In June 2000, in its most ambitious effort yet, the

Institute announced a campaign to support the election of

“pro-business” judges to the state supreme courts in Ala-

bama, Illinois, Michigan, Mississippi, and Ohio, and indi-

cated that it expected to raise at least $10 million to

support the effort. The executive director of the Institute

reportedly stated that the Institute intended to use these

funds to make direct campaign contributions as well as

pay for issue advertising. The Chamber played a major

role in the 2000 state judicial races, particularly in Ohio

and Mississippi, and has claimed that 12 of its 15

endorsed candidates nationwide were elected.’

C. Select Battlefield States.

Three examples of how interest groups have worked

to influence the state courts and their decision-making

are collected below. Amici believe this information is rep-

resentative of the situation which exists in other states.

Idaho.15 For many years, judicial selection in Idaho

was largely divorced from politics. By custom, the gover-

nor appointed many justices after incumbents stepped

down. Prior to the 2000 race, no incumbent had been

14 See Deborah Goldberg & Mark Kozlowski, “Constitu-

tional Issues in Disclosure of Interest Group Activities,” at 3 n. 7,

paper prepared for Symposium on Judicial Campaign Conduct

and the First Amendment (Chicago, November 9-10, 2001).

15 Unless otherwise noted, this material is drawn from John

D. Echeverria, supra note 3, at 238-54.

12

voted out of office for over fifty years and, therefore,

justices faced little real prospect of retribution at the polls

for unpopular decisions.

All of that changed, however, with the 2000 race. The

primary (but not the only) issue in the campaign was a

controversial court ruling, decided by a three to two vote,

upholding a claim by the United States to federal

“reserved” waters rights in several protected areas on

federal public lands in the state. See In re SRBA, 1999 WL

778375 (Id. 1999). Justice Cathy Silak, who was up for

reelection the following year, was the author of the major-

ity opinion.

An October 14, 1999, editorial in The Idaho Statesman

set the tone for the election. “Through the hand-wringing

over Idaho’s water rights,” the editorial began, “there is

one quick-fix solution available to voters: elect a new

Supreme Court Justice.” The editorial pointed out that

Justice Silak’s pending reelection “leaves an opening for

anybody who thinks she was in error.” “Silak should be

aware,” the editorial concluded, “that there isn’t a single

Idaho politician in the last 30-plus years - Democrat or

Republican — who would dare to run on the platform to

allow the federal government to control every drop of

water in designated areas of the state.”

A steady torrent of criticism subsequently rained

down on Justice Silak. A board member of an irrigation

district in southern Idaho said, “this is setting a prec.

dent that is untenable. We can’t live with it. No citizen in

the Snake River Plain can live with this decision.” A

representative of the Farm Bureau Federation said the

organization was “astounded with this ruling.”

13

Judge Dan Eismann launched his campaign to unseat

Justice Silak by appearing and speaking at a party fund-

raising banquet. Newspaper accounts of the event indi-

cate that Eismann did not explicitly discuss the water

rights case, but it was an implicit focus of the event. At a

meeting prior to the banquet, a party official called for

Silak’s removal, stating: “We anticipate having an oppo-

nent for her so you will have a choice . . . In this instance

you better get out there and vote or you'll be pretty dry.”

In the last few weeks before the election, a South

Carolina-based group financed an illegal “push poll”

designed to sway voters against Justice Silak based on

her opinion in the Snake River case. A push poll, con-

ducted under the guise of “polling” voters, is actually

designed to “push” them in favor of a particular candi-

date. The script of the push poll was as follows:

“Hello, Mr. XX? This is XXX calling. I’m con-

ducting a brief survey. Can I ask you one ques-

tion? Do you support the move by the courts to

transfer control over Idaho water rights to the

federal government?

Residents who answered ‘no’ were told: “Your

opposition to the federal power grab of Idaho

water is important. You see, at the May 23 elec-

tion, Idaho voters will be deciding who will

serve on the state supreme court. The current

judge, Cathy Silak, is the person most responsi-

ble for handing over Idaho water to the federal

agents. Her opponent is Dan Eismann. Judge

Eismann opposes this giveaway. He is a solid

defender of individual freedom and has a record

of being fair and honest.’

14

The caller was then asked: ‘Can we count on

you to go to the polls on Tuesday May 23rd and

vote for Dan Eismann for state Supreme

Court?“

Who or what was behind this push poll is a mystery.

The poll was nominally sponsored by an organization

called Citizens for Term Limits Idaho Campaign. The

actual telephoning was conducted by a Pennsylvania-

based telemarketing firm. According to a press statement

by the leader of the Idaho group, the poll was funded by

a $50,000 check from Lyle Coggan of the Democracy Fund

in South Carolina. Further details on the nature of the

fund or the identity of Mr. Coggan, or the basis for their

interest in the Idaho race, have never been publicly dis-

closed.

On May 23, 2000, Justice Eismann won the Supreme

Court sec by defeating Justice Silak in the two-person

primary by a margin of 60 to 40.

On October 27, 2000, following Silak’s defeat at the

polls (but before her term expired), the Court, in response

to an application for rehearing of its ruling in the Snake

River case, reversed itself. See Potlatch Corp. v. United

States, 12 P.3d 1260 (Idaho 2000). This time, again by a

three to two vote, the Supreme Court concluded that the

United States had not established a reserved water right.

Chief Justice Trout, who was scheduled to face the voters

two years later, in November 2002, switched her vote.

15

In a recent address, is Justice Christine Durham of the

Utah Supreme Court stated that she would be “extremely

loath” to conclude that either the public criticisms of

Justice Silak or the outcome of the election accounted for

the change in the law. But, she said: “The point . . is this:

significant publicity and special interest involvement cre-

ated an inference that the court’s work (and its vote on

rehearing) was influenced by a judicial election campaign

in which the outcome of this case was a major factor.”

Louisiana.’” In Louisiana, the business community has

waged an aggressive and quite successful campaign to

produce a more “business friendly” state supreme court.

Given the importance of petrochemical and related manu-

facturing in Louisiana, it is hardly surprising that this

campaign was driven in significant part by the business

community’s objections to environmental regulation.

The leader of the campaign is the Louisiana Alliance

of Business and Industry (“LABI”). LABI reportedly has

played a role in recruiting candidates for the Court and

contributed heavily to its favored candidates. During the

1998 race, Chief Justice Calogero charged that his chal-

lenger, Judge Cusimano, was “a handpicked candidate of

the Louisiana Association of Business and Industry, try-

ing to change the complexion of the Supreme Court.”

Cusimano received $26,000 from LABBl- affiliated PAC’s,

close to the maximum allowed, and Cusimano described

16 Christine Durham, “The Judicial Branch in State

Government: Parables of Law, Politics, and Power,” 76

N.Y.U.L.Rev. 1601 (2001).

17 Unless otherwise noted, this material is drawn from John

D. Echeverria, supra note 3, at 254-69.

16

himself as a candidate who would bring “a philosophy

that understands business” to the Court. LABI prepared

at least one judicial evaluation report, in 1998, after the

Oklahoma group prepared the initial evaluation report

for Louisiana in the 1996 election cycle.

LABI has expressed a clear preference for a merit

selection process for state judges but also has been frank

about its unwillingness to forego efforts to influence the

outcome of the current election process. In the early

1980s, LABI supported legislation to establish a judicial

appointment process. Following the failure of the reform

legislation, LABI joined the judicial electoral fray. In 1994,

the LABI president acknowledged that it was seeking to

use its financial power and political clout to influence the

Court, stating, “We don’t choose to make our judicial

system in this state above influence.” LABI has con-

tended, “If the Legislature continues to resist some form

of merit selection for judges, which is the obvious reform

that is needed to insulate judges from the unavoidable

influence of special interests, the business community

must remain actively involved in the judicial election

process.”

LABI believes that its activities have “improved” the

Supreme Court from a business standpoint. For example,

LABI’s political director told a reporter that certain recent

Supreme Court pro-business rulings wouldn't have hap-

pened as they did” in the absence of LABI’s efforts on

behalf of certain judicial candidates. At least one cele-

brated case, the Louisiana Supreme Court's 1997 decision

in Meredith v. Ieyoub, 700 So.2d 478 (La. 1997), appears to

confirm the accuracy of this boast.

17

The case arose from the decision by the Attorney

General to enter into contingent-fee contracts with pri-

vate firms to assist the State in prosecuting environmen-

tal damage claims against polluters. The Attorney

General's apparent motivation in entering into these con-

tracts was to enlist the resources and expertise of private

law firms in helping the State to enforce the environmen-

tal laws. The state association of oil and gas producers

and some of its members, who were among the potential

targets of litigation under this arrangement, brought suit

claiming that the Attorney General lacked the legal

authority to enter into this type of contract.

There is strong evidence that the plaintiffs’ ultimate

success in this litigation is attributable to the business

community’s successful efforts to elect more “pro-busi-

ness” justices to the Supreme Court. While the case was

pending in the lower courts, LABI and other business

groups succeeded in electing two “business friendly” jus-

tices to the Court. In its decision handed down in Sep-

tember 1997, the Court ruled, by a 4 to 3 vote, that the

contracts were illegal. Justice Victory, who was elected in

1994, with business backing, wrote the majority opinion,

which was joined by three other justices, including the

two other business friendly justices elected in 1996. The

Chief Justice and two other relatively long-time members

of the Court dissented. While it is impossible to know

how the case would have turned out otherwise, it is

reasonable to infer that the outcome in Meredith v. Ieyoub

was determined by effective political advocacy.

In recent years, Louisiana judicial elections have

reached extraordinary heights of partisan viciousness.

The 1998 campaign was described in the press as “nasty,

8

18

expensive” and “without respite” and full of “biting tele-

vision ads and a sea of glossy campaign posters.” Inde-

pendent candidate Bill Quigley suggested that his

opponents’ resources would be better spent in buying

television time for a public discussion of the issues rather

than in purchasing ads which “demean” the office and

make the campaign “like the Jerry Springer show.” Not

surprisingly, a 1998 survey conducted by the University

of New Orleans found that 80 percent of state residents

surveyed thought the Louisiana Supreme Court was too

influenced by politics.

Ohio. is The unsuccessful effort to unseat Justice Alice

Resnick from the Ohio Supreme Court in November 2000

illustrates the extraordinary size of third-party invest-

ments in efforts to influence state judicial elections.

For nearly a decade, the Ohio Chamber of Commerce

and other groups have waged a concerted campaign to

alter the ideological balance on the sharply divided Ohio

Supreme Court. The Ohio Chamber of Commerce actually

published the first judicial evaluation report, in the

mid-1990’s, apparently providing the model for the Okla-

homa group’s subsequent nationwide organizing effort

discussed above.

In the November 2000 race, the campaign focused on

an effort to oust long-term incumbent Justice Resnick.

The Chamber’s judicial evaluation report assigned

Resnick the lowest “pro-business” score of any justice on

10 Unless otherwise noted, this material is drawn from John

D. Echeverria, supra note 3, at 287-300.

19

the court, and also assigned her the lowest pro-business

voting record in environmental cases specifically.

The Chamber rhetoric leading up to the campaign

suggests the importance of the effort to unseat Resnick to

business interests. The Chamber’s 2000 judicial evalua-

tion report stated that “[b]usiness leaders need to realize

that as Ohio enters the 21st century, the anti-business tilt

of the Ohio Supreme Court presents one of the biggest

challenges to the state’s business climate. . . The state’s

legal climate has become a negative factor for businesses

considering new or expanded operations in Ohio.”

Citizens for a Strong Ohio, an arm of the Ohio Cham-

ber of Commerce, and the U.S. Chamber of Commerce’s

Institute for Legal Reform, spent a reported $5 million in

advertising attacking Justice Resnick, but refused to dis-

close the identity of their contributors. The harshest anti-

Resnick ad featured a statute of lady justice peeking

under her blindfold at bundles of money, with an

announcer intoning that Justice Resnick had received

$750,000 in campaign contributions from the trial lawyers

since 1994 - and voted in their favor 70% of the time. The

ad concluded by asking: “Is justice for sale in Ohio?” The

backers of this expensive advertising campaign evidently

thought the answer to their question was clearly “yes.”

20

Il. The Highly Politicized Nature of State Judicial

Elections Undermines the Possible Effectiveness of

Rules Limiting Speech and Other Political Activity

of Judicial Candidates.

While amici take no position on the First Amendment

issues in this case, the evidence discussed above concern-

ing politicization of the state courts may nonetheless be

relevant to the Court's resolution of these issues. Restric-

tions on speech and other political activity are permiss-

ible only if they serve a “compelling” government

purpose. Eu v. San Francisco County Democratic Cent.

Comm., 489 U.S. 214, 228-29 (1989). Furthermore, the

restrictions must be “narrowly tailored” to use the “least

restrictive means” to achieve the stated goal. Burson v.

Freeman, 504 U.S. 191, 198 (1992). While protecting the

independence and impartiality of the judiciary is unques-

tionably a compelling purpose, it is questionable whether

Canon 5 can meet the stringent standards of the First

Amendment.

First, starting at the most basic level, the restrictions

arguably cannot serve to protect judicial independence

and impartiality because they cannot alter the basic

nature of the electoral process itself. The very purpose of

popular elections is to ensure that elected officials will be

responsive to the citizenry. Political responsiveness is the

antithesis of independence. In other words, in a funda-

mental sense, an independent and impartial elected court

is an oxymoron, and efforts to limit the speech and other

political activity of judicial candidates cannot alter that

conclusion.

21

To be sure, no judge, regardless of the method of his

or her selection, is completely free of any chimera of

political or ideological taint. A litigant can often evaluate

from a judge’s past professional activities, volunteer

work, legal writings, and so on whether a judge is likely

to be sympathetic to a particular legal position. Even

under a merit-appointment system, it would be naive to

suppose that elected officials who select and review nom-

inees are not influenced by a candidate’s judicial philoso-

phy and their general sense of how a candidate will

approach certain legal issues. The judicial branch cannot

be divorced from the political process.

But, within this basic constraint, it makes all the

difference in the world whether a judge must periodically

run for election - and, perhaps most importantly, run for

reelection - in order to serve. Every judicial election

places at risk for a judge both the prestige and salary

associated with judicial office. As a matter of common

sense, judicial rulings likely to offend a significant por-

tion of the electorate, or some well-heeled special inter-

est, will place a judge’s job at greater risk. Judicial

opinions which are popular and inoffensive to powerful

special interests will help enhance job security. It would

contradict everything we know and expect of the elec-

toral process to think that elected judges could entirely

ignore such considerations.

Second, Canon 5 and similar restrictions are likely

ineffective because, even if the political aspects of state

judicial elections might be controllable in theory, the real-

ity is that judicial elections are intensely political contests

in all if not most states which hold such elections. Special

22

interests now make large contributions to judicial cam-

paigns and help finance “independent expenditure”

activity. The involvement of independent groups in the

electoral process is particularly significant because, under

governing constitutional standards, mandatory limits

cannot be imposed on spending by such groups, see Buck-

ley v. Valeo, 424 U.S. 1, 35-39 (1976) (per curiam), and,

depending upon the nature of the groups’ advocacy, it

may be impossible even to require public disclosure of

their financial contributors. See id. at 79-80. As discussed

in section I, prominent players in judicial electoral poli-

tics have publicly announced that the purpose of their

political advocacy is to change the law. There also is

evidence that in some cases special interests have suc-

ceeded in these efforts, either by directly changing the

ideological complexion of a court’s membership or by

implicitly threatening sitting judges with retribution at

the polls if they rule the “wrong” way. The results of

public surveys indicate that the public understands what

common sense suggests: the goal of independent and

impartial courts has already been severely compromised

in some states.

The record in this case appears to indicate that in

Minnesota in particular, as in other states, special interest

involvement in judicial elections already has seriously

eroded the independence and impartiality of the courts.

A variety of “quasi-political organizations” are involved

in Minnesota judicial politics, including state and local

bar associations, the League of Women Voters, “People

for Responsible Government,” Minnesota Women Law-

yers, Lavender Magazine, and Minnesota Family Council.

See Republican Party of Minnesota v. Kelly, 247 F.3d 854, 901

23

(8th Cir. 2001) (Beam, J., dissenting). As stated by Judge

Beam, “such groups can easily bring pressure to bear in

judicial elections.” Ibid.

Finally, even it could be concluded that Canon 5 and

similar restrictions help serve to protect judicial indepen-

dence and impartiality, in Minnesota and/or in other

states, it is also debatable whether such restrictions repre-

sent the “least restrictive means” for achieving the state’s

objective, as required by the First Amendment. The State

of Minnesota could eliminate judicial elections and select

judges through a “merit appointment” process instead. A

number of states have adopted this approach, and it has

proven to be a stable and workable method for judicial

selection. The federal government has, of course, avoided

the need for considering similar restrictions of judges’

speech, because Article III judges are appointed by the

President subject to the concurrence of the U.S. Senate.“

Merit appointment, by removing the judiciary from

politics to the maximum extent possible, would protect

the independence and impartiality of the Minnesota

courts far more effectively and comprehensively than

19 While the strict “compelling government purpose” and

“least restrictive means” tests apply to direct restrictions on

speech, the same tests do not necessarily apply to all types of

legal controls on the state judicial electoral process. Cf. Buckley

v. Valeo, 424 U.S. 1, 21-22 (1976) (discussing the relatively more

deferential standard applied to limits on campaign

. contributions, as compared to campaign expenditures). In

amici do not believe that the availability of the merit-

selection option necessarily bars limits on contributions to

judicial candidates or third-party entities, or precludes strict

public reporting of contributions and expenditures.

-

24

Canon 5. At the same time, removing the judicial selec-

tion process from the electoral process would eliminate

the need to seek to restrict First Amendment freedoms. In

general, Minnesota and other states have broad latitude

in designing their own forms of government. However, at

least for the purpose of evaluating this First Amendment

claim, it is certainly relevant that there is a widely

accepted and well-tested alternative method of judicial

selection which promotes judicial independence and

impartiality without the need to restrict speech under the

First Amendment.

III. State Judicial Election Procedures Violate Liti-

gants’ Rights Under the Due Process Clause to

Have Their Cases Heard by Fair and Impartial

Courts.

Amici submit that the fundamental issue raised by

the politicization of the state court systems is whether

litigants are being denied their rights to fair and impartial

courts under the Due Process Clause of the Fourteenth

Amendment. If so, then the entire system of judicial

administration in some states may be subject to constitu-

tional challenge under the Due Process Clause. But cf.

Public Citizen, Inc. v. Bomer, 115 F.Supp.2d 743 (W. D. Tex.

2000), aff'd on other grounds in an unreported decision,

F.3d __ (5th Cir. 2001) (dismissing on jurisdictional

grounds broad constitutional challenge to Texas system

for electing state judges). At a minimum, the current

situation creates the prospect of legal challenges to speci-

fic court decisions on the grounds that the state courts

have not supplied the reality, or at least the appearance,

of impartial justice. :

25

“The Due Process Clause entitles a person an impar-

tial and disinterested tribunal in both civil and criminal

cases.” Marshall v. Jericho, 446 U.S. 238, 242 (1980). This

“jealously guarded” protection is designed both to avoid

“unjustified or mistaken deprivations,” id., as well as to

“preserve the appearance and the reality of fairness, ‘gen-

erating the feeling, so important to a popular govern-

ment, that justice has been done.’ Id., quoting Joint Anti-

Fascist Committee v. McGrath, 341 U.S. 123 (1951) (Frank-

furter, J.). The Court, in a recent articulation of the appli-

cable test, stated that, Iblefore one may be deprived of a

protected interest . . . one is entitled as a matter of due

process of law to an adjudicator who is not in a situation

which would offer a possible temptation to the average

man as a judge . . . which might lead him to not to hold

the balance nice, clear, and true.” Concrete Pipe & Products

v. Construction Laborers Pension Trust, 508 U.S. 602, 617

(1993) (internal citations omitted). The Court has repeat-

edly applied this rule to bar the participation of judges in

cases in which the court’s impartiality could reasonably

be questioned. See, e.g., Aetna Life Insurance Co. v. LaVoie,

475 U.S. 813 (1986); Ward v. Village of Monroeville, 409 U.S.

57 (1972).

The Court has frequently emphasized that the Due

Process Clause is offended, not only by the reality but

also by the appearance of impartiality. “Indeed, justice

must satisfy the appearance of justice, and this stringent

rule may sometimes bar trial by judges who have no

actual bias and who would do their very best to weigh

the scales of justice equally between contending parties.”

Marshall, 446 U.S. at 242. See also Aetna, 475 U.S. at 825

(“mak[ing] clear that we are not required to decide

26

whether in fact [the judge] was influenced, but only

whether sitting on the case . . . would offer a possible

temptation to the average . . judge to. . . lead him to not

to hold the balance nice, clear, and true”).

The current, increasingly politicized system of judi-

cial selection raises a host of due process concerns. Large

campaign contributions by lawyers and private firms and

individuals, as well as “independent” expenditures

designed to support a particular candidate, raise obvious

and serious questions about whether a judge will feel

beholden to supporters whose interests may be affected

by a pending case. In addition, a judge presiding over a

case involving past campaign contributors might feel

pressure to rule in a fashion that maximizes the chances

of receiving contributions for the next election cycle. On

the other hand, as the example of the Idaho Supreme

Court arguably illustrates, a judge might be influenced by

a desire to avoid being targeted by a specific constituency

which might object to some ruling. As discussed, the

constitutional test turns not only on the reality of

improper influence but on the “appearance” of impropri-

ety. As stated by Justice Kennedy, the increasing “scram-

ble” to finance state judicial elections raises the concern

“that there will be either the perception, or the reality,

that judicial independence is undermined.“ 20

Amici recognize that removing restrictions on judicial

candidates’ speech and political activities could make

existing, already serious due process problems even more

20 Frontline, Justice for Sale (PBS television broadcast,

November 23, 1999).

27

serious. Once an elected judge or candidate has commit-

ted to a particular public position on a legal issue, he or

she may feel an obligation to stick to that position, under-

mining a litigant’s right to an impartial hearing. On the

other hand, if a judge departed from a previously stated

position, he or she might be called to account by the

voters. Just as the electorate has punished elected officials

who failed to fulfill pledges of “no new taxes,” the electo-

rate might toss from office judges perceived as having

broken pledges to “punish criminals,” or “protect human

life,” and so on. 1 The dilemma of attempting to navigate

between First Amendment concerns and due process

problems can be resolved most directly through adoption

of merit selection procedures.

The Court has not specifically addressed the point at

which campaign contributions and other political activ-

ities in state judicial elections so undermine the fair

administration of justice that they rise to the level of a

due process violation. To date, lower federal and state

courts have been reluctant to entertain such challenges.

See, e. g., Shepherdson v. Nigro, 5 F.Supp.2d 305 (E. D. Penn.,

1988) (rejecting due process challenge to state court dis-

missal of plaintiff’s claim when court received over

$20,000 in campaign contributions from the defendant's

21 On the other hand, it could be contended that

eliminating Canon 5 and similar restrictions might help protect

the independence, if not necessarily the impartiality, of the

courts and thereby kelp serve due process values. If judges and

judicial candidates could speak more freely, they could at least

speak out to counter misleading or unfair criticisms of their

views.

28

law firm). The reasons offered for not entertaining such

claims are not convincing.

First, it has been suggested that because “it is the

public which supports, or tolerates the election of state

judges .. . , [i]t is unrealistic and unfair to require that

judges run for election and then deride them for accept-

ing the money that is necessary to sustain a campaign

from a principal source.” Id. at 310. State judges cannot,

of course, be faulted for operating within the constraints

. imposed by a state’s judicial selection process. In the

context of a due process case, however, the issue is

whether the litigant has been deprived of his or her

constitutional right to an impartial tribunal. That state

judges deserve no individual blame for the constitutional

infirmities of the state court systems is not a valid reason

for ignoring such infirmities.

Second, it has been suggested that requiring judges

to routinely recuse themselves in cases involving lawyers

or litigants who contributed to their campaigns would

require judges to recuse themselves in many if not most

of their cases. See, e. g., Roe v. Mobile County Appointment

Board, 676 So.2d 1206, 1233 (Ala. 1995). It is debatable

whether a modest campaign contribution, in the absence

of any other consideration, should be sufficient to sup-

port a finding of a due process violation. On the other

hand, it is certainly true that judicial recognition that

campaign contributions implicate due process concerns

may cast a constitutional shadow upon many state court

vystems. The magnitude of the due process problems

created by state judicial elections is hardly a legitimate

argument for sweeping the due process concerns under

the rug.

29

Finally, it has been suggested that “constitutionaliz-

ing” state judicial selection procedures would require

federal courts “to engage in the type of policy making

more appropriately undertaken by pertinent state author-

ities,” and, therefore, the federal courts should defer to

“the state authorities responsible for adopting and inter-

preting codes of judicial conduct or the highest courts in

the states.” Shepherdson, 5 F.Supp.2d at 10-11. The short

answer to this argument is that the state courts are not

exempt from the requirements of the Fourteenth Amend-

ment. In the past, the Court has not hesitated to declare

that specific state court decisions, see, e. g., Aetna Life

Insurance Co. v. Lavoie, supra, or even that widespread

judicial institutional arrangements, see, e. g., Ward v. Vil-

lage of Monroeville, 409 U.S. 57; id. at 62 (Rehnquist, J.,

dissenting), violate the Due Process Clause.

In the absence of appropriate supervision by this

Court of state judicial elections under the Due Process

Clause, the dismal future of the state courts is easy to

foretell. The major interest groups already invested in

these electoral contests will be joined by numerous other

groups. Judges seeking reelection will be routinely rated

by abortion rights and anti-abortion groups, consumer

advocates, environmentalists, libertarians, and so on. Just

as no self-respecting lobby organization can afford not to

be represented at the state legislature, no significant

interest group will be able or willing to sit out state

judicial elections.

Over time, the nature of many state judiciaries will

be utterly transformed. Rather than being essentially

judicial bodies, the state courts will take on the charac-

teristics of a legislative forum. The composition of the

30

elected state courts, as well as their decisions, will reflect

the same balance of competing political forces reflected in

the voters’ choice for governor and state legislature.

When litigants lose important, controversial cases, they

will properly surmise it was because their side of the

argument lost at the ballot box, not because an impartial

evaluation of the facts or the law dictated any particular

outcome. The ideal of the courts as protectors of the

unpopular and the powerless within our society will be

lost, and the fair administration of justice and the protec-

tion of liberty will be destroyed.

+

CONCLUSION

For the foregoing reasons, amici respectfully urge the

Court to decide this case in light of the broader problem

of the politicization of the state court systems, including

the serious questions about whether litigants are being

denied their due process rights to fair and impartial

courts.

Respectfully submitted,

Joun D. EcHeverria

GEORGETOWN ENVIRONMENTAL Law

AND Pouicy INnstrTuTE

Georgetown University

Law Center

600 New Jersey Avenue, N.W.

Washington, D.C. 20001

(202) 662-9850

Counsel for Amici Curiae

January 17, 2002

App. 1

APPENDIX

Idaho Conservation League (“ICL”) is an Idaho non-

profit membership conservation organization. ICL and its

approximately 2,800 members are dedicated to protecting

and conserving Idaho’s natural resources, including its

wildlife resources. ICL’s mission is to “protect and restore

the clean water, wildlands, and wildlife of Idaho.” ICL

has worked to protect water resources in Idaho, including

by attempting to intervene in the Snake River Basin Adju-

dication proceeding over federal reserved water rights in

wilderness areas which was the focus of the electoral

contest leading to the defeat of Justice Silak. ICL also has

participated as an intervenor in other aspects of the

Snake River Basin Adjudication proceeding.

The Louisiana Environmental Action Network

(LEAN) is a statewide coalition of grassroots and commu-

nity organizations dedicated to making Louisiana’s com-

munities safer, healthier places to live. Major LEAN

projects focus on controlling water pollution, reducing

toxic air emissions, and improving the safety of

pesticides. LEAN has closely monitored political efforts

to influence the Louisiana Supreme Court on environ-

mental and other issues.