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

Common Cause Indiana v. Indiana Secretary of State - Indiana law provides that the Democratic and Republican parties each nominate exactly half the number of Superior Court judges placed on the general election ballot.  This challenge by Common Cause Indiana charges that this election scheme unconstitutionally deprives general election voters of their First Amendment right to cast a meaningful vote.  In September 2013, the U.S. District Court for the Southern District of Indiana denied defendants' motion to dismiss the lawsuit.

McCutcheon v. F.E.C. - The Supreme Court will hear this case challenging the federal aggregation contribution limit - the total any one donor can contribute to all candidates, party committees, and PACs.  While this case does not directly involve judicial elections, if the Supreme Court strikes down aggregate contribution limits as unconstitutional infringements of First Amendment rights, 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.

Ryan v. Hurles

In 1992, an Arizona jury convicted Richard Hurles of killing librarian Kay Blanton. Hurles was subsequently sentenced to death by Judge Ruth Hilliard, an Arizona state court judge. Hurles appealed the case, arguing Judge Hilliard was biased against him, a claim that stemmed from Judge Hilliard’s refusal to grant Hurles a second court-appointed lawyer for his capital trial. The death sentence was upheld by Arizona state courts and a federal trial court, but when the case reached the U.S. Appellate Court for the Ninth Circuit, the judges sided with Hurles 2 to 1, remanding the case to a lower court to review Judge Hilliard’s actions and determine if she presided over the case fairly.  The Ninth Circuit directed the lower court to consider whether the case was tainted by judicial bias, or whether the defendant received a fair trial in a fair tribunal.  The Ninth Circuit majority was particularly concerned with the trial judge's resolution, without an evidentiary hearing, of a motion seeking her recusal.  The dissent warned that the majority's conclusion "is likely to work mischief by casting doubt on whether state and federal judges can ever appropriately make recusal decisions without first holding evidentiary hearings."

The state of Arizona appealed the order to the U.S. Supreme Court in June 2013. As of March 28, 2014, the Court has considered this case in 17 separate conferences and has yet to grant or deny certiorari. Reasons for the delay are unknown. It is possible that the case will be scheduled for additional conferences before a decision can be made. 

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 is reportedly mulling a reelection bid this year.

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.

Inquiry Concerning a Judge, No. 13-25 Vs.  Re: Andrew J. Decker, III (SC14-383)

Florida Judge Andrew Decker III faces allegations that he violated several canons of judicial conduct by lying during his campaign and by claiming that his religious and political opinions guide his judicial decisions.  In a campaign debate prior to his November 2012 election, Decker stated that he had never faced conflict of interest accusations.  In fact, a land trust that Decker represented as a private attorney in a foreclosure case accused him of both misconduct and conflict of interest earlier that year.  While campaigning, Decker also made statements that he would act as a Christian judge, was pro-life, and identified with the Tea Party.  These statements allegedly violate several judicial canons that govern appropriate conduct by judges and judicial candidates, including one stating that a judge “shall not allow family, social, political or other relationships to influence the judge's judicial conduct or judgment.”

On February 25, 2014, the Florida Judicial Qualifications Committee filed charges against Decker.  Decker has twenty days to file a written answer to the charges, after which a six-member panel will hear arguments from both sides.

Recent Cases

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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