CENTER FOR JUSTICE AT NYU SCHOOL OF LAW

Transcription

1 Idaho Judicial Elections Updated 12/12/02 1. Article reports that Idaho voters may be on the verge of ousting an incumbent Supreme Court justice for the first time in 68 years. Justice Cathy Silak, the first woman appointed to an appellate court in Idaho, is facing a primary challenge from District Judge Daniel Eismann. Eismann s campaign has focused on a 3-2 majority opinion written by Silak, which upheld federal water rights in Idaho wilderness areas. According to observers, the lack of other compelling contests coupled with the role of water rights in Idaho politics could cost Silak her seat on the state high court. Staff, Justice Faces Unusual Election Challenge, Spokesman-Rev. (Spokane, Wash.), April 24, Article reports that two candidates for the Idaho Supreme Court traded accusations saying each has brushed too close to the line of partisanship in a race that has become increasingly political two weeks before the election. Judicial candidate Cathy Silak criticized rival Daniel Eismann for ing Republican Party activists in an effort to recruit campaign workers. Eismann criticized Silak for accepting a contribution from Idaho s U.S. Senators, both Democrats, as well as for purchasing lists of names and telephone numbers from the Democratic Party in Idaho s Code of Judicial Conduct stipulates that judicial candidates must campaign in a non-partisan manner. According to the article, however, many observers feel that the non-partisan requirement is unrealistic. As a professor at Boise State University stated, People at all levels are more closely scrutinizing judges to get a sense of their stands on specific issues. They have become litmus tests. Bill Roberts, Partisanship Raised in High Court Race, Idaho Statesman, May 9, Idaho Judge Daniel Eismann, who is running for the state Supreme Court, denies any involvement in an apparently illegal push poll against his opponent, Justice Cathy Silak. In a push poll, pollsters call voters to convey negative information about a candidate, generally without disclosing who is behind the poll. The Ohio Legislature passed a law this year that bans push polling, if the name of the poll s sponsor is not given. Silak stated, It s basically lies about me and my court. Certainly in a judicial election, you would expect the candidates to be very restrained in their campaign techniques. She added, I have never seen a tactic like that used in any judicial election that I ve ever heard of. Betsy Z. Russell, Eismann Denies Role in Anti-Silak Push Poll, The Spokesman Review (Spokane, Wash.), May 13, Article reports that a Idaho district judge has issued a restraining order barring a telemarketing firm from push polling voters about Idaho Supreme Court Justice Idaho 1

2 Cathy Silak, who is running for re-election. The order came in response to a complaint by Silak s campaign alleging that the push poll was phrased in a way that accused Silak of turning over Idaho s water rights to the federal government. Silak contended that the poll violated an Idaho statute that requires pollsters to identify the person or group paying for the poll. Tim Jackson, Judge Bars Poll About Supreme Court Race, Idaho Statesman, May 17, Article reports that Daniel Eismann, who ran on a conservative platform attacking abortion and questioning evolution, defeated Cathy Silak in the Idaho Supreme Court race. Silak is the first incumbent to lose an Idaho Supreme Court race in 56 years. According to political analysts, Eismann s open courting of voting blocks opposed to abortion and evolution could become the way to the bench in upcoming Supreme Court elections. But some feel that Eismann s tactics put him in a major bind... and [he] should... disqualify himself from any rulings where he has expressed an opinion. Bill Roberts, Eismann Ousts Silak, The Idaho Statesman, May 24, Editorial rails against the movement to eliminate judicial elections in Idaho following the controversial defeat of Justice Cathy Silak by Judge Daniel Eismann in a politically-charged election. The editorial states, Supporters of Justice Cathy Silak who were seeking a beauty contest to keep her on the Idaho Supreme Court are angry that an election broke out. Now, they want to change Idaho s Constitution to ensure it doesn t happen again. According to the editorial, Eismann won because he decided to tell Idahoans about himself rather than grin and hide behind judicial restraint as Supreme Court candidates usually do. By revealing that he is a conservative Republican -- even though Idaho runs non-partisan elections for judges -- voters knew his election would tilt the fivemember court from somewhat activist to conservative, and thus made an informed decision regarding his candidacy. System Worked for Judge Eismann, The Spokesman Review (Spokane, Wash.), May 31, Article discusses the increasingly contentious and costly election battles for the state courts. The article reports, Millions of dollars in campaign contributions are flowing into races for top state judgeships this year, while candidates are testing the limits of ethics rules that forbid them to signal how they might vote on cases. The article discusses campaigns in Ohio, Idaho, Illinois, Michigan and Florida, among other states. According to the article, the divisiveness of judicial elections across the country is causing the courts image of impartiality to suffer, as judges [find] themselves full participants in the same kind of ideological warfare that has affected other branches of government. William Glaberson, Fierce Campaigns Signal a New Era for State Courts, N.Y. Times, June 5, Idaho 2

3 8. Article reports that this spring s race between Justice Cathy Silak and Daniel Eismann was the most expensive judicial campaign in Idaho history. Silak spent $149,000 in her unsuccessful bid to remain on the court. Eismann spend $140,000, not counting tens of thousands of dollars spent by an independent campaign to oust Silak. According to the article, the most expensive judicial campaign in Idaho before this spring was in 1998, when three candidates spent approximately $190,000 combined. Judicial Race Most Costly Ever, The Spokesman Review (Spokane, WA), June 23, A new study finds that elections to choose state judges represent a major new battlefront in the political warfare over U. S. environmental policy. The report by the Environmental Policy Project of the Georgetown University Law Center finds that, in Idaho, Louisiana, Ohio, and Michigan, business groups in several states are preparing simplistic and misleading evaluations of how judges vote in environmental and other cases and using the results as the basis for supporting judges for re-election or targeting them for defeat. According to the report, the election of conservative judges to the Louisiana Supreme Court probably changed the outcome of at least one major environmental case and helped explain the court s 1998 order restricting the activities of legal clinics at the state s law schools, which have helped obtain environmental protections for low-income communities. Susan Finch, Court Races Linked to Ecological Battles, New Orleans Times-Picayune, October 31, Column argues that a case soon to be heard by the Idaho Supreme Court will challenge the court s reputation for impartiality. Last week, the court agreed to review its holding in a controversial insurance claims case. The author of the original opinion, Justice Cathy Silak, lost her seat in last year s election to Justice Dan Eismann, who received large contributions from business groups opposing Silak s decision. The columnist finds that Justice Eismann is in a no-win spot: His campaign was so reliant on business support that his decision will always be suspect in the eyes of some. Moreover, the court s decision to rehear the case has been questioned because Justice Eismann participated in the vote on the rehearing even though, according to court rules, only those who participated in the original hearing can decide to grant a rehearing. Chief Justice Linda Copple Trout acknowledges the error but contends that Justice Eismann s vote was inconsequential because the decision to grant a rehearing was unanimous. Former Chief Justice Robert Bakes, a supporter of Justice Silak who has, however, strongly criticized her insurance opinion, defends the court: This isn t just a case of... the business community buying a more compliant justice. The court may have realized that they put out a piece of work that was substandard. At the same time, Chief Justice Bakes recognizes that while the perception... that [judicial candidates] are compromised is not the reality,... perception is everything -- you can t have the public thinking justice is being bought and sold. Dan Popkey, Idaho 3

4 Contributors Could Benefit from Eismann s Role, Idaho Statesman, March 8, Editorial finds that a recent argument before the Idaho Supreme Court highlights the need for public financing of judicial elections. Last week, the Court heard a challenge to the state s term limits law. Noting that state Supreme Court Chief Justice Daniel Eismann s 2000 campaign received $52,000 from supporters of term limits, the editorial asserts that the Chief Justice unintentionally makes an argument for public financing of Idaho judicial races. His dilemma, in the editorial s view, is if he upholds the law, cynics will say the term-limits folks bought influence on the court. If he goes against the term-limits law, cynics will say he only went out of his way to make a point. It concludes that the High Court ought to study the ABA s recent report endorsing of public financing (See Court Pester, July 24) and create a commission to investigate the matter further. Contributions Undermine an Unbiased Judiciary, Idaho Statesman, November 2, Column mourns the death of Idaho Supreme Court Justice Stephen Bistline: Bistline s passing reminds me that we used to elect judges for independence, integrity, and intellect, not whether they could raise money, had the right partisan pedigree and were willing to push judicial ethics to the edge in order to win. The columnist finds that Justice Bistline s last campaign in 1990 was a benchmark for how things have changed in a decade. Despite his liberal record and his appointment by Democratic Gov. Cecil Andrus, Bistline had backing from across the political spectrum.... The result was a campaign that scared off any opposition. Dan Popkey, Justice Bistline s Independence Will Be Missed, Idaho Statesman, November 27, Editorial touts public financing as a cure for voter apathy in Idaho s judicial elections. The state legislature is convening a task force to examine the problem of low voter turnout. According to the editorial, one reason is that [w]hen special-interest groups donate to a judge s campaign, it gives the perception of justice tainted. For example, the editorial anticipates that supporters of term limits will donate large sums of money to candidates who they think will vote to repeal the Supreme Court s ban on term limits. The editorial concludes that the task force would do well to engage in a lively discussion about values. What s worth more? The freedom of expression that comes with campaign donations? Or the independence of the judiciary? Funding for Judicial Races Deserves a Closer Look, Idaho Statesman, April 12, Article reports that three former Idaho Supreme Court justices and four state legislators filed a formal complaint against Coeur d Alene attorney Starr Kelso, charging that he violated state campaign finance laws. Kelso, a candidate for the Idaho 4

5 state Supreme Court, is the beneficiary of a $75,000 last-minute television ad campaign touting his candidacy and attacking the incumbent. Although Kelso maintains that the group that paid for the ads, Idahoan for Tax Reform, is separate, the complaint says the ads are clearly Kelso campaign ads. The group has refused to say who provided money for the ads. The ads show pictures of Kelso and his family, though Kelso says he did not provide family photographs, was never contacted about the ad, and saw it for the first time on television. Kelso said, Any complaints [incumbent Chief Justice Linda Copple Trout] has about the ads, she should take up with the First Amendment rights of Idaho citizens. Betsy Z. Russell and Angie Gaddy, Campaign Ad Prompts Complaint, Spokesman-Review (Spokane), May 25, After a contentious race, incumbent Idaho Supreme Court Chief Justice Linda Copple Trout handily beat her challenger, Coeur d Alene attorney Starr Kelso. She had won 62 percent of the vote with 599 of 923 precincts reporting. Although the race was nonpartisan, it picked up a very political feel when last-minute ads placed by Idahoans for Tax Reform called Trout very liberal and Kelso conservative. (See Court Pester, May 28.) Three former Idaho Supreme Court justices and four state legislators filed a campaign disclosure complaint over the television ads; Kelso has said he had nothing to do with them. Angie Gaddy, Incumbent Justice Defeats Starr Kelso, Spokesman-Review (Spokane), May 29, Article reports that the Idaho Legislature has created a task force to examine campaign financing for judicial elections. The issue received renewed attention in Idaho during the recent primary, when Idahoans for Tax Reform dumped an estimated $75,000 into ads against Supreme Court Chief Justice Linda Copple Trout and for challenger Starr Kelso. (See Court Pester, May 30.) Although lawmakers rejected a broad review of campaign finance laws, they unanimously voted to conduct a review focused on money and its influence on elections to the bench. Wayne Hoffman, Task Force to Look at Role of Money in Judicial Campaigns, Idaho Statesman, June 8, Article reports that, after suffering a last-minute negative ad attack from an anonymously financed group in her reelection bid this May, Idaho Supreme Court Chief Justice Linda Copple Trout wants to take the politics out of judicial races. At a public forum with Phyllis Kennedy of the Alabama Civil Justice Reform Coalition, Trout advocated a merit selection system with retention elections, similar to how magistrates are currently selected in Idaho. Contested elections give voters a sense that elected judges are supposed to represent them, Trout believes. People lose sight of the fact that the third branch is supposed to be different: fair and neutral, she said. Kennedy asserted that partisan elections have changed the balance of the Alabama court because pro-business judges are Idaho 5

6 getting elected instead of only liberal trial lawyers. Judicial Races Should Be Rid of Politics, Idaho Statesman, June 26, Calling the whole system of electing judges a mess, editorial discusses the U.S. Supreme Court s recent decision striking down a Minnesota canon restricting the speech of judicial candidates. Is it OK to give special-interest has-beens an open shot at a judicial candidate who has to watch what he or she says? However, the ruling leaves a tall order : treating judicial candidates fairly while protecting the sanctity of the jobs they re running for. Who Gets Freer Speech: Candidates or Activists?, Idaho Statesman, June 29, Article discusses a crisis of credibility gripping many of the thirty-nine states that elect appellate judges as judges contend with a flood of money driven by a fierce battle over judicial philosophy that has pitted trial lawyers, consumer advocates and unions against corporations, their attorneys and their trade associations. In recent years, the single greatest wild card in judicial races has been the influx of anonymous spending beyond the direct control of candidates, usually in the form of issue advertising which insulates donors from disclosure, allowing for nastier, more underhanded tactics. One major player, the U.S. Chamber of Commerce, plans to spend as much as $25 million in undisclosed contributions in The result of such spending is likely to be costly and bitter elections in states like Texas, Ohio, Michigan, Florida, Louisiana, Illinois, Mississippi, Alabama and Idaho, where the voters decisions could alter the courts ideological makeup. Georgetown University law professor Roy Schotland said that contribution limits and independent expenditure disclosure requirements, if narrowly tailored for judicial elections, could pass constitutional muster. Michael Scherer, State Judges for Sale, The Nation, September 2, Editorial argues that the trend toward more expensive judicial elections in Idaho erodes, grain by grain, at the shoreline of judicial independence. The spending in this spring s Supreme Court race between Chief Justice Linda Copple Trout and challenger Starr Kelso approached $260,000, or $1.63 per vote cast, according to Idahoans for Fair Elections. The editorial assesses various options and finds them all lacking. Abolishing elections would require an amendment to the Idaho Constitution and would likely be unpopular. Public financing would require a funding source, such as a surcharge on civil penalties, and it might not necessarily affect the content of advertising. A no-holds-barred judicial campaign could lead to wild pledges on anything from gun control to abortion which might box in a winning candidate and force a good judge to issue a bad ruling just to make good on an election promise. The editorial concludes that maybe, just maybe, free speech an! d full disclosure is as good a starting point as Idaho 6

7 any. Justice Should Be Blind: Must It Be Silent As Well?, Idaho Statesman, September 19, Article reports that a task force formed to study campaign finance laws in judicial elections in Idaho has concluded that it had too little time and too little freedom to explore the issue and has recommended the formation of another committee. The issue has gotten hotter in the past couple of years, and this spring, unknown donors trying to oust [Idaho Supreme Court] Chief Justice Linda Copple Trout spent more than $170,000 through the Ada County Property Owners Association and Idahoans for Tax Reform. However, the one solution the [task force] couldn t officially talk about was the one many think would work eliminating the head-to-head elections and allowing voters to decide whether or not to retain appellate and district judges. The task force did endorse a bill which would require third-party groups to file with the state within 48 hours of making an independent expenditure of more than $1,000 in the weeks before the election. Gregory Hahn, Judicial Elections May Get More Study, Idaho Statesman, November 27, Idaho 7