Two high-profile cases have brought renewed attention to the question of whether Arkansas' system of electing state Supreme Court justices and Court of Appeals judges needs fixing.
But even a popular new governor's interest in changing the process doesn't settle the fundamental conundrum: Is minimizing the influence of money and politics worth disenfranchising voters from their state justice system?
"There is no perfect method of selection," said Chris Bonneau, associate professor of political science at the University of Pittsburgh, where his studies emphasize judicial politics and public law.
Reformers in Arkansas point to two recent issues that have underscored the imperfections of electing judges, albeit for entirely different reasons:
• The bribery scandal involving former Faulkner County Circuit Judge Michael Maggio, who was running for a seat on the Court of Appeals, which highlights the way a wealthy donor can manipulate judicial decisions; and
• The recusal in April of state Supreme Court Chief Justice Jim Hannah and Associate Justice Paul Danielson from a case involving same-sex marriage, consideration of which was interrupted presumably so that newly elected justices could gain a retroactive vote in a case that had already been argued.
But even before these specific cases, there were legislators and attorneys who were concerned about the growing influence of money, especially from shadowy groups outside the state, in appellate court elections and the dearth of information on which voters can base their decision at the polls.
In the regular legislative session earlier this year, state Rep. Matthew Shepherd, R-El Dorado, tried and failed — for a second time — to get traction for a constitutional amendment that would create a hybrid system of gubernatorial appointment and voter approval. But in the weeks since the session ended, Shepherd said, he's starting to feel support building.
Under his plan, a 15-member nominating committee would submit three names to the governor, who would then make the appointment. The justices would face, however, a retention election if they wanted to run for another term.
Taking a fresh look at the process has its supporters.
"I think the system of electing state court appellate judges is broken," said Little Rock attorney Philip Anderson, a founding partner of Williams & Anderson and now senior counsel there. "I think that it is no longer working and that an alternate system should be adopted."
After a speech to the Pulaski County Bar Association in April, Gov. Asa Hutchinson told reporters he was "committed to developing a different system of selection of our appellate judges and working with the Legislature as to the best way to address that challenge," according to an article in the Arkansas Democrat-Gazette.
And he's still interested. Last week Hutchinson, a lawyer, issued the following statement to Arkansas Business:
"If a consensus on this issue is reached, action should be taken in the form of a constitutional amendment to allow the people of Arkansas to decide."
If the governor is looking for universal agreement, he won't find it.
Bob Edwards, president of the Arkansas Trial Lawyers Association, said it is big money and a "lack of transparency," not the elections, that are the problem. (For more from Edwards, see this week's Executive Q&A.)
John DiPippa, a dean emeritus at the William H. Bowen School of Law at the University of Arkansas at Little Rock, agreed.
Judicial elections give the public a sense of participation and investment in the justice system, DiPippa said. But with the money pouring into state-level supreme court races across the country — and increasingly in Arkansas — those benefits are "being outweighed by the danger that essentially moneyed interests are buying the judiciary."
"And even if that's not true," he said, "the perception is dangerous, if people believe that's really what the justice system is about."
There are drawbacks to appointing judges as well, said Bonneau, at the University of Pittsburgh.
"When you move to a commissioned-based, a so-called merit-based system, what you end up having is — instead of having the people directly involved in the selection of judges — you have a bunch of unaccountable elites responsible."
Problems With Elections
Currently, 38 states have some form of elections for their highest courts, according to Justice at Stake, a nonpartisan organization in Washington that touts its goal of keeping American courts fair and impartial. Judicial election systems include both partisan and nonpartisan contested elections — Arkansas' are nonpartisan — and, in some states, the kind of retention elections that Shepherd's proposed amendment contemplated for Arkansas.
The remaining states have a variety of methods for selecting judges, and in some cases appointed supreme court justices are never subject to a vote.
"Judges should be chosen based on their qualifications, not based on their partisan politics or their ability to fundraise," Liz Seaton, the deputy executive director of Justice at Stake, told Arkansas Business last week.
The total estimated spending on judicial races in the 2011-12 cycle was $56.4 million, which was slightly less than the total spending in the 2007-08 presidential election cycle, according to a Justice at Stake report. No more recent total was available.
"What we're seeing is this higher and higher spending," Seaton said. "And when campaign cash flows into courtrooms, that just doesn't bode well for impartial justice in this country."
Maggio, in a notorious example, reduced a jury's $5.2 million judgment against a nursing home to $1 million after the nursing home owner, Michael Morton, donated $24,000 to political action committees supporting Maggio's 2013 campaign for a seat on the Arkansas Court of Appeals. Morton has denied doing anything wrong and has not been charged, but Maggio waived indictment and pleaded guilty in January to a federal charge of accepting a bribe in exchange for reducing a verdict. Maggio hasn't been sentenced.
"It's the kind of example that makes the case for some kind of change," Seaton said.
Seaton said spending on judicial races has been climbing for years. "As things became more partisan and divisive in this county, the courts became one of the political battlegrounds," she said.
Seaton said she has seen more spending on judicial elections by independent groups after the U.S. Supreme Court ruled in the Citizens United case in 2010 that the government couldn't limit independent political spending by nonprofits.
Little Rock attorney Tim Cullen said he's seen firsthand how the judicial races are "easy prey for outside moneyed interests that can come in with relatively little money and win a judicial race. And the rules are such that it can be done anonymously."
During the 2014 Arkansas Supreme Court race, Cullen ran against state Court of Appeals Judge Robin Wynne.
The Law Enforcement Alliance of America of Washington, "an outside group with reported ties to the NRA, outspent both candidates with $317,280 on ads attacking Tim Cullen," a March 2014 news release from Justice at Stake said. Cullen lost the election, 52-48 percent.
Cullen said that he still doesn't know why the Law Enforcement Alliance was interested in the race or who is behind the organization.
In a news release, LEAA claimed to be the nation's largest coalition of law enforcement professionals, crime victims and concerned citizens dedicated to making America safer. No spokesman for the organization could be reached for comment.
Such special-interest money "creates the prospect that our judges have been elected by special interests, and we don't even know what those interests are, and that creates all kinds of problems for whether they are fair or perceived to be fair," Cullen said.
Cullen said he "hates" the idea of taking away the vote from the voters, but he said he is "reluctantly" in favor of going to a system in which the justices are appointed.
Several states have opted for a merit-selection system under which supreme court justices are appointed from a pool of qualified finalists who are selected by a nominating commission. In most cases, the justices then have to face an up-or-down retention vote.
State Rep. Shepherd, who is an attorney, told Arkansas Business last week that he submitted the proposals because he was concerned about the "growing expenses of judicial races" and the influence of outside money.
He agreed that there was no perfect system to select justices. But he said that ethical restrictions preventing Supreme Court candidates from discussing actual legal issues mean that voters don't have much information with which to make an informed decision.
He said he understands the concerns about taking the vote away from residents.
"It's something that I wouldn't take lightly, but on the other hand, we look to the federal system, and our own United States Constitution provides the nomination and confirmation of federal judges."
DiPippa, with the UALR Law School, said a merit system for selecting justices doesn't eliminate the influence of money or politics on the judiciary. "In some ways it's even more perverse," he said.
Justices might not want to make an unpopular ruling because they might be voted down at the retention election, he said. "So it really doesn't eliminate politics," DiPippa said.
But judicial appointments might eliminate the kind of behind-the-scenes wrangling that led two Supreme Court justices to recuse themselves from hearing the case involving the challenge to the Arkansas' ban on same-sex marriages.
"I am bound by the Code of Judicial Conduct, and Canon 1 demands that a judge shall uphold and promote the independence, integrity, and impartiality of the judiciary," Danielson wrote in his recusal letter. "I cannot be complicit in machinations which have the effect of depriving justice to any party before this court. … I believe the current actions of the court impinge on the oath I took and my duties under the Code."
Jack Wagoner III of Little Rock, who is representing a number of same-sex couples in lawsuits, told Arkansas Business that some people thought the delay with the state Supreme Court case involving the same-sex marriage issue had to do with politics.
Wagoner declined to comment on the delay and said, "I'm not saying that anybody's been influenced politically."
But he said people "wouldn't be making those kinds of allegations if it were not purely an elected office."
He said the appointment of federal judges, who are appointed for life, takes "all political influence out of the picture."
Shepherd said he didn't know if he would make another stab at reforming the system in the next session. "It's something that I'll continue to look at," he said. And, he said, he's received support for reforms in the weeks since the legislative session ended.
"I think more people are starting to take a more serious look at whether it might be time to change the system," Shepherd said.