Fair Courts Litigation Task Force

For more than a decade, nearly every effort to protect courts from the influence of money and partisan politics has faced a vigorous litigation assault. Opponents of court reform have targeted ethical rules aimed at promoting the integrity and independence of the judiciary; public financing for judicial elections; and the use of nonpartisan merit commissions to screen judicial nominees.

The Fair Courts Litigation Task Force comprises a number of groups working to ensure a fair and impartial judiciary. This site tracks current litigation impacting fair courts, and collects resources regarding previous litigation relevant to fair courts.

Current and Recent Cases of Interest

Williams v. Pennsylvania

On June 9, 2016, the U.S. Supreme Court decided Williams v. Pennsylvania, an appeal from the Supreme Court of Pennsylvania concerning judicial bias in a death penalty case. The Court ruled, in a 5-3 opinion written by Justice Kennedy, that due process was violated when Chief Justice Castille of the Pennsylvania Supreme Court refused to recuse himself from Terrence Williams' post-conviction appeal of a death sentence that Castill had approved as district attorney before he became a judge. The Court found a "serious risk of actual bias" when a judge had prior personal significant involvement in a case as a prosecutor. Oral argument was heard on February 29. This is the first major case involving judicial recusal to reach the Supreme Court since Caperton v. Massey in 2009.

Faires v. State Board of Elections (15-CVS-15903)

On November 30, 2015, a would-be candidate for the North Carolina Supreme Court and several North Carolina voters filed a lawsuit challenging North Carolina Session law 2015-66, which changed the mechanism for reselection of justices on the state supreme court. The law allowed sitting justices to run in an uncontested retention election rather than a contested election. On March 4, a North Carolina state trial court invalidated the law as violating the state constitution. On April 13, 2016, the North Carolina Supreme Court heard the state's appeal of the lower court decision.

Hughes v. Johnson (2:2015cv07165)

On December 30, 2015, Jefferson D. Hughes III, an associate justice of the Louisiana Supreme Court, filed suit in federal court against four fellow justices, alleging that their decision to remove him from considering a pending case violated his constitutional rights. Hughes claims that by removing him from an environmental remediation case involving contributors to his campaign, his fellow justices violated his First and Fourteenth Amendment rights. Hughes claims that the campaign support was made through independent expenditures that were not coordinated with his campaign, and that his involuntary recusal chills his speech as a judicial candidate.

Wolfson v. Concannon 

Latest Developments:

On 1/27/2016, a unanimous en banc Ninth Circuit upheld all of the canons at issue. Relying on the Supreme Court’s decision in Williams-Yulee, the court found that the limitations on personal solicitation and partisan activities passed constitutional muster. Applying strict scrutiny, the court explained that the challenged provisions of the Arizona Code of Judicial Conduct “further[] a compelling interest and [are] narrowly tailored to achieve that interest.” In concurrence, Judge Berzon emphasized that in addition to the compelling interest in preventing biased decisionmaking, the canons were narrowly tailored to serve an additional compelling interest, “maintaining an independent judiciary.”

Background:

In Arizona, counties with fewer than 250,000 people elect their judges. Both judge and non-judge candidates must comply with the ethical standards set forward by the Arizona Code of Judicial Conduct. In Wolfson v. Concannon, an unsuccessful candidate for judicial office in Arizona has challenged provisions of the Code, alleging they restrict his speech, violating his First Amendment rights. The judicial canons in question include those that prohibit judicial candidates from: (1) making speeches on behalf of political organizations or candidates for public office; (2) publicly endorsing or opposing political candidates publically; (3) soliciting funds on behalf of, or contributing funds to any candidate or political organization in excess of the amounts permitted by law, or making total contributions in excess of fifty percent of the cumulative total permitted by law; (4) actively taking part in any political campaign other than his or her own campaign for election, reelection, or retention in office; and (5) personally soliciting campaign contributions other than through a campaign committee.

A district court ruling upheld the canons, granting summary judgment in favor of the Arizona state officials. However, in a split decision, a three judge panel of the Ninth Circuit of the U.S. Court of Appeals reversed the district court’s decision. The Ninth Circuit panel’s ruling emphasized that it based its analysis on the distinction between judge and non-judge candidates, finding the canons unconstitutional only as applied to the latter group. Where the district court had rejected the notion that judicial candidates ought to enjoy greater freedom to engage in partisan politics than sitting judges, the Ninth Circuit panel found the restrictions on non-judge free speech to be insufficiently narrowly tailored to hold up under strict scrutiny.

The Brennan Center, along with the Arizona Judges’ Association, American Judicature Society, Justice at Stake, and The Campaign Legal Center filed an amicus brief in support of the state’s petition for the case to be reheard en banc.  On September 26, 2014, the Ninth Circuit announced that it will rehear the case en banc. Oral argument took place September 9, 2015.

Three Unnamed Petitioners v. Peterson and O'Keefe v. Chisolm (2013AP2504 - 2508-W)

The Wisconsin Supreme Court is hearing a constitutional challenge to an investigation that involves possible illegal campaign coordination between Wisconsin Governor Scott Walker’s 2011/2012 recall election campaign and special interest groups. Although the details of the investigation are sealed, reports indicate identify the special interest groups being investigated by the probe as the same groups who reportedly spent millions in support of the election campaigns of four of the state’s Supreme Court justices.

In February, the prosecutor leading the probe filed a motion asking at least one Wisconsin Supreme Court justice, and possibly more, to recuse themselves from hearing a challenge to the investigation. The Brennan Center filed a brief on behalf of legal ethicists arguing that the Wisconsin Supreme Court must consider the recusal motion in a manner consistent with the U.S. Supreme Court’s decision in Caperton v. Massey, which established that due process may require recusal when a litigant provides significant campaign support to a judge. On July 16, 2015, the Wisconsin Supreme Court ordered the investigation shut down. None of the justices recused themselves from the case based on campaign support from the targets of the investigation.

Hale v. State Farm Mutual Automobile Insurance Company (3:2012cv00660)

This racketeering case concerns allegations that judicial campaign donations led the Illinois Supreme Court to overturn improperly a $1.05 billion judgment in a 2005 consumer class action suit, Avery v. State Farm.  Plaintiffs allege that State Farm Mutual Automobile Insurance Company conspired with Illinois Supreme Court Justice Lloyd Karmeier’s campaign to elect Karmeier to the Supreme Court, with State Farm providing campaign funding in exchange for Karmeier’s vote to overturn the judgment against them. Plaintiffs seek to depose Karmeier and, representing a class identical to the one in Avery, seek treble damages awarded with 14 years of interest.  Karmeir was reelected in an uncontested retention election in November 2014.

U.S. District Judge David Herndon is hearing the case in the Southern District of Illinois. The Seventh Circuit Court of Appeals denied State Farm’s request to grant mandamus relief and halt the case in January 2014.

 

Recent Cases

Solomon v. Kansas (2015-cv-156) and Fairchild v. Kansas

On February 18, Larry T. Solomon, the Chief Judge for the Thirtieth Judicial District in Kansas, filed suit against the state of Kansas, arguing that a recent law (HB 2338) which strips the Kansas Supreme Court of administrative authority over district courts is unconstitutional and violates the separation of powers doctrine. Voters passed an amendment to Kansas's constitution in 1972 that explicitly gave the Kansas Supreme Court “general administrative authority over all courts in the state,” including district courts. Judge Solomon argues that Kansas’s law violates the constitution by removing the authority to select chief judges from the Kansas Supreme Court and giving it to district courts.

Judge Solomon filed a declaratory judgment action asking the Shawnee County District Court to strike down the law. Judge Solomon is represented by the Brennan Center for Justice, Kaye Scholer LLP, and Irigonegaray & Associates.

While Judge Solomon's challenge was pending, Kansas passed a judicial budget bill (HB 2005) conditioning all judicial funding on the continued viability of HB 2338, the law stripping the Kansas Supreme Court's administrative authority. On September 2, 2015, a judge struck down HB 2338 as a violation of separation of powers in Solomon v. Kansas. The parties jointly requested a stay pending appeal, which was granted by the judge. On September 4, four Kansas district court judges brought suit against the state, challenging the provision in HB 2005 that would completely defund the state judiciary based on the ruling striking down the administrative authority law.

On December 23, the Kansas Supreme Court issued an opinion finding that HB 2338, which removed Kansas Supreme Court of administrative authority over district courts, is unconstitutional.

"[T]he means of assigning positions responsible to the Supreme Court and charged with effectuating Supreme Court policy must be in the hands of the Supreme Court, not the legislature. By enacting sec. 11 of H.B. 2338, the legislature asserted significant control over a constitutionally established essential power of the Supreme Court," wrote Justice Rosen for the majority. 
 
The majority also noted that "our holding appears to have practical adverse consequences to the judiciary budget, which the legislature may wish to address, even though those concerns played no part in our analysis."
 
Justice Stegall wrote a concurring opinion, in which he stated, "While I concur in the result of today's decision...I write separately because, unfortunately, the decision of the majority does little to restore the proper sequestering of the three great governmental powers within their respective departments."
 
Fairchild v. Kansas was resolved in January 2016 when Kansas lawmakers passed a bill that reversed the 2015 law that threatened to defund the Kansas judiciary.

Williams-Yulee v. Florida Bar.  On April 29th, the Supreme Court issued a decision in Williams-Yulee v. Florida Bar, upholding the constitutionality of Florida’s canon of judicial conduct prohibiting judicial candidates from personally soliciting campaign contributions. This case was a major victory for the fair courts movement, as Chief Justice Roberts joined with the court’s progressive wing for only the second time, recognizing that states’ compelling interest in judicial integrity allows judicial elections to be regulated differently than other elections. This case represents a notable departure from the Court’s recent campaign finance jurisprudence, and opens an important window for efforts to protect judicial integrity in the 39 states that elect judges. This is the first U.S. Supreme Court case involving judicial campaign conduct since 2002's Republican Party of Minnesota v. White.

McCutcheon v. F.E.C. - This is the latest in a line of cases in which the Roberts Court struck down a campaign finance law regulating how much big money can flow into political races.  In the decision, the Court struck down the federal aggregate contribution limits which restricted an individual to contributing $48,600 to all candidates and $74,600 to all parties and PACs per election cycle.  While this case does not directly involve judicial elections, the case could threaten the ability of states to limit the corrosive influence of large campaign contributions in judicial elections.  Oral arguments were heard October 8, 2013.

Zachary Mulholland v. Marion County Election Board

In an order issued November 17, 2014, a U.S. District Court judge approved an agreed judgment between both sides in Mulholland v. Marion County Election Board and declared that the slating statute in Indiana cannot be legally enforced. The statute in question prohibits a candidate in a primary election from publishing campaign materials using the names of other candidates without their written consent and notice to the Election Board. Critics of the slating law worry that it allows the heads of local political parties to censor campaign fliers and other materials printed by unendorsed candidates.

The lawsuit was filed in 2012 by Zachary Mulholland, a former Democratic candidate for an Indianapolis state legislative office. Mulholland, represented by the ACLU of Indiana, alleged that the Election Board unfairly enforced the statute by taking away his campaign materials at polling sites on the day of the primary and demanding he appear for a hearing, in spite of having previously conceded in a 2003 federal lawsuit that the same slating statute violated the First Amendment. The flier in question said “Vote Democrat” above the names and pictures of President Barack Obama; then-U.S. Senate candidate Joe Donnelly; U.S. Rep. Andre Carson, D-Indianapolis; and gubernatorial candidate John Gregg.

Dobson v. Arizona - Article VI of the Arizona Constitution created the Commission on Appellate Court Appointments and requires the Commission to nominate “not less than three” candidates to the governor in order to fill judicial vacancies. In 2012, the legislature placed a referendum measure on the ballot to amend this article with Proposition 115, which would have increased the minimum number of candidates the Commission was required to nominate. Over 70 percent of Arizona voters rejected this measure.

In its recently completed session, the legislature passed House Bill 2600, “requiring the Commission to submit at least five candidates to the Governor, but provides that on a two-thirds vote, the Commission may reject a candidate and ‘submit fewer than five names.’”  This measure was signed into law by Governor Brewer, and the members of the Commission are challenging the statute in this action, arguing that the law is an end run around the requirement that voters approve constitutional changes, and that the law alters the separation of powers in granting the governor more power of selecting judges.  The Brennan Center for Justice and Justice at Stake submitted an amicus curiae brief in this action.

On September 13, 2013, the Arizona Supreme Court agreed with petitioners' claims and struck down the law in its entirety.  In doing so, the court adopted in its entirety an argument the Fair Courts Litigation Task Force made in our brief.  In particular, the court agreed with our position that the legislative changes (in the court’s words) worked “a fundamental change in the constitutionally prescribed balance of power between the Commission and the governor.”  They also adopted our argument that the statute unconstitutionally infringed on the Supreme Court’s authority to adopt the rules of procedure for the commission.

Sanders County Republican Central Committee v. Bullock - This case involves a challenge to a Montana statute prohibiting political parties from endorsing, contributing to, and spending money in support of candidates in the state's nonpartisan judicial elections.  The case was heard by a Ninth Circuit panel, which struck down the endorsement and expenditure bans.  On July 5, 2013, Montana petitioned the Ninth Circuit to re-hear arguments en banc.  On August 16, 2013, the Ninth Circuit declined to hear the case en banc, allowing the panel’s decision to stand.  On January 13, 2014, Montana petitioned the U.S. Supreme Court for certiorari, seeking to have the Ninth Circuit's opinion reversed and remanded.  On February 24, 2014, the Supreme Court denied Montana's petition.  In Montana, political parties will now be permitted to endorse candidates and make expenditures in the state’s nonpartisan judicial elections.  

Strine v. Delaware Coalition for Open Government (13-869)

In 2009, Delaware passed a law allowing businesses with at least $1 million in dispute to use state chancery judges and courtrooms for arbitrations concluding in enforceable legal judgments.  For litigants who would pay the $12,000 in filing fees and $6,000 per day after that, their filings would not be docketed, their courtrooms would be closed to the public, and their judgments would be confidential.  Closed hearings and sealed proceedings are not unusual in private arbitrations, but it is highly unusual for a binding arbitration to take place in a government courtroom on government time before a sitting judge acting on behalf of the state (rather than acting solely on the basis of a private contract), with arbitration fees paid directly to the court.

The advocacy group Coalition for Open Government challenged the legislation as an unconstitutional violation of the public’s First Amendment right of access to civil proceedings. In 2012, a federal district court agreed, as did a divided appellate court. On January 21, 2014, the Delaware Chancery Court filed a petition for a writ of certiorari to the Supreme Court seeking reinstatement of the arbitration program. On March 21, 2014, the Supreme Court denied the petition, leaving intact the Third Circuit's decision striking down Delaware's program.

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