DBTC Law Firm

It is an election year once again!

While the presidential race is now dominating the media outlets, if you watched any television in the last few months you undoubtedly know that two hotly contested races for positions on the Arkansas Supreme Court and Court of Appeals just concluded in this state’s March primary. The vast amounts of money which were spent by and on behalf of this year’s judicial candidates – and the often undisclosed source of those funds – have raised new questions about whether it is best to elect or to appoint our appellate court judges.

Arkansas is one of 22 states which elects its appellate judges. The Arkansas Supreme Court is comprised of a Chief Justice and six associate justices, all of whom are elected from the state at large to serve eight year terms. Twelve judges make up the Arkansas Court of Appeals, which typically hears cases in panels of three. Each of those judges is elected by constituents in the judicial district in which he or she resides and is also elected to serve an eight year term. These two appellate courts decide all of the appeals from the decisions of our 121 state circuit court judges. The only objective requirement for Supreme Court and Court of Appeals candidates to be elected is that they be licensed attorneys of this state for at least eight years immediately preceding the date of assuming office. No requirement otherwise exists by which to judge the intellect, experience, legal expertise, abilities, character or standing in the legal community for these candidates.

Voters often know the men and women running to serve as circuit judges in our state trial courts, who must live in the circuit they serve. However, those same voters usually know very little about the candidates for positions on our appellate courts. This is in large part a consequence of the Arkansas Code of Judicial Conduct, which is intended to ensure an independent, fair and impartial judiciary. Unlike political office-seekers, judicial candidates are prohibited by the Code of Judicial Conduct from speaking about their positions on specific issues, as such statements might be expected to affect the outcome of a matter pending or soon to be pending in court. That Code also prohibits judicial candidates from soliciting or accepting campaign contributions other than through a campaign committee. These “safeguards” to large degree backfire in practical effect.

Candidates for judgeships are not supposed to know who donates to their campaigns, so as not to be influenced by those donors in their judicial decisions. This mandate creates real problems in both the judicial races and subsequent service as judges. That a judge remain ignorant of election support, when a prominent lawyer or citizen hosted a large fund-raiser for the judge’s campaign, is not a realistic expectation. However, pretending to remain ignorant of that unavoidably obvious fact when such lawyer or citizen is then in that judge’s court precludes the judge from admitting any bias and allows him or her to adjudicate “fairly” those who clearly facilitated election to the judge’s current office and job.

These rules have also led to the infusion of so-called “dark money” – money spent by non-profit organizations which are not required to identify their donors. The result has been that millions of dollars are spent on judicial elections – much of it by out-of-state special interest groups – and that money typically takes the form of negative, attack-style advertising. It has been reported that more than $1.3 million was spent in TV ads in the two Arkansas high court elections which just concluded, which is more than double the amount of money previously spent on any Arkansas judicial election.

In short, judicial elections have become politicized, high-stakes contests, just like races for state governmental offices. Should Arkansas move to a new system of selecting its appellate judges? About half of the states employ a merit-selection system under which judges sitting on their highest courts are either appointed by the state’s governor or a panel of legislators or are nominated by non-partisan panels. In some states those judges then face periodic retention elections.

There is now a move afoot among Arkansas lawyers and in the Arkansas legislature to consider whether reforms should be made in our state. The Senate Judiciary Committee is studying whether there is support for putting on the November ballot a Constitutional amendment which would have justices appointed rather than popularly elected. Other legislators are working to propose legislation which would increase transparency by requiring disclosure from groups spending money on ads in judicial races. Yet, many lawmakers, as well as members of the Arkansas Supreme Court itself – including both of the candidates in the race for Chief Justice of the Supreme Court – have said that they favor retaining the present system of having the voters elect judges. Proponents of elected judges believe that competitive elections are the most democratic way to make judges accountable to the public they serve. Adherents of the appointment/retention system contend that this system greatly reduces the influence of special interest money and leads to the selection of better-qualified candidates.

There is also political pressure mounting that judges be specifically aware of who contributes to their campaigns, including all of the dark money, and combining that requirement with a mandate that such judge recuse and disqualify from those cases where any person or corporation involved has contributed more than a modest sum. Time will tell whether our current system will remain in place or whether Arkansas will decide to utilize some form of merit selection for our courts of last resort and make judicial election contributions more transparent and judicial disqualification more specific. What are your views?

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