Louisville Magazine

MAR 2012

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CONTINUED FROM PAGE 64 Election foes also point to a 2004 race for the Illinois Supreme Court. Te Democratic incumbent and his Republican challenger spent nearly $10 million combined and attacked each other with specious TV ads. About that time, policyholders had won more than $1 billion against State Farm Insurance, and the case was pending at the Supreme Court. Republican Lloyd Karmeier won the race after receiving $350,000 from State Farm, and when the case reached the court, he refused to recuse himself and the court reversed the decision, with Karmeier in the majority. And they point to Caperton v. Massey Coal, which also dealt in part with a judge's refusal to recuse. After Massey had lost a $50 million judgment at trial, CEO Don Blankenship helped funnel more than $3 million into a West Virginia Supreme Court race, and his preferred candidate, Brent Benjamin, defeated incumbent Warren McGraw. Te West Virginia high court then overturned the judgment, with Benjamin concurring. In 2009, the U.S. Supreme Court sent the case back to the state Supreme Court and ruled that Benjamin's failure to recuse himself violated the plaintiff's right to due process. Te West Virginia court, with Benjamin sitting out, again "In Kentucky, the election process is poised to be polluted by special and monied interests." — Rep. Jim Wayne are," says Louisville attorney Tomas Clay, who also prefers some form of appointment by non-interested parties, followed by retention elections. "Tere may be five or six candidates in the primary, and there's no way a voter can make a decision on who's best qualified. Tere's no way on God's green earth that I know all the candidates, and I've been practicing for 38 years." Louisville attorney Ann Oldfather, who has long been involved in judicial reform efforts, agrees. Noting that attorneys tend to make nearly all of the contributions that judicial candidates raise, she worries how that looks to the public (even though she says she believes most judges are beyond reproach). She also finds it impossible for the public to know how to come down in judicial races. "Despite their best efforts, citizens can't have an informed opinion on what goes on in the courtroom," she says. "It would be the same thing in the operating room. It's not possible to know who has the best legal ability, the best temperament or who will apply the law. (Voters) overturned the decision. Good government types who favor judicial appointments cite Caperton v. Massey as Exhibit A of how special interest money can influence the judicial process. Ten there's Citizens United v. Federal Election Commission, the landmark case decided in early 2010 in which the U.S. Supreme Court ruled that the First Amendment prohibits government from limiting spending for political purposes by corporations and unions. So far, that case's impact has been observed primarily in the Republican presidential primary, as Mitt Romney and Newt Gingrich have received massive donations from so-called super-PACs. Joshua Douglas, an assistant professor at the University of Kentucky College of Law who studies election law, sees that moving into judicial elections. "I predict we will see an increase in money spent on judicial races by outside groups," he says. "Companies who are repeat players in litigation — insurance companies, for example — will care a lot about who's on the various courts." Douglas and his UK colleague William Fortune helped write HB 230, which Rep. Jim Wayne, D-Louisville, has introduced during the current legislative session. Te bill would make provisions for public funding for Supreme Court candidates who eschew private fund- raising. Wayne introduced similar legislation about eight years ago. He thinks the timing is better now. "In Kentucky, the election process is poised to be polluted by special and monied interests," he says. "Te climate is right for this bill, and we have the blessing of the Speaker." But with the state's budget crisis and legislators in a pitched battle over redistricting, Douglas and others wonder if there's enough political will to pass the bill. J ohnstone recalls when a couple thousand dollars was more than sufficient to run a judicial campaign in Louisville. Races now typi- cally exceed six figures, and Judge Katie King spent more than $400,000 while winning a District Court seat in 2009. King barely met the eligibility qualifications to run for District Court — namely, that a candidate must have practiced law for at least two years — and she and her father, Metro Council President Jim King, were accused of buying the seat. One argument for appointment is that it's difficult for voters to evaluate judicial candidates. "We have 39 judges in Jefferson County, and the overwhelming majority of the electorate has no idea who they [80] LOUISVILLE MAGAZINE 3.12 don't have that data; only lawyers who appear in front of them have that data." Fleischaker says that may be true in larger metropolitan areas, but not necessarily out in the state, where citizens know their judges by name and reputation. He concedes that's not the case in Louisville, but believes elections provide a suitable means to get rid of any judge who performs poorly. Tat gets to the heart of a long-running problem in Louisville, something that's been whispered about for years. Call it the "name issue." Despite considerable local efforts to evaluate judges and make that information available to the public (thanks to the nonpartisan group Citizens for Better Judges and the Louisville Bar Association), there is ample evidence that the public simply doesn't know anything about the judiciary and doesn't care to. In the absence of information (or more accurately, with its antipathy toward actual research), the public seems inclined to vote for familiar surnames. Raise your hand if you've ever opted for a Delahanty, McDonald, Schroering or Fitzgerald. Lawyers won't typically offer on-the-record criticisms of judges in whose courts they regularly appear, but it is an open secret that at least a couple of Louisville courtrooms are, shall we say, challenged. Te Bar Association asks its membership to evaluate judges and publishes the results annually. According to the most recent poll, taken last year, only 28 percent of respondents were generally satisfied with senior District Court Judge Paula Fitzgerald. Te same percentage gave her good marks on legal ability, and only 38 percent endorsed her courtroom management. (Tough she has a familiar name, the judge isn't related to the other Fitzgeralds who have served on the bench.) Te results were nearly as dismal for District Court Judge Sandra McLaughlin, who pulled 41 percent on general satisfaction, 33 percent on legal ability and 57 percent on courtroom management. Te numbers for Annette Karem, another District Court judge with a familiar name, were 55, 55 and 62. While she ranks lower than most of her peers, King's marks rank her solidly ahead of those judges. Again, though, it's so much inside baseball. While informed people from both sides of the debate can cite research and anecdotes that support their stance, the issue of elected vs. appointed judges is, Fleischaker notes, a "hot issue with a few people" but not high on the public's list — as evidenced by even lower voter turnout in judicial elections. Barring the sorts of judicial races that have played out in other states, that seems likely to remain the case. In the meantime, many in the courthouse believe that judicial independence and the quality of justice dispensed from the bench may be in serious jeopardy. Q

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