State bar: Select, not elect, court

The Arkansas Bar Association on Friday endorsed choosing state Supreme Court justices, elected to their jobs since the 1800s, through appointment.

The state's largest organization of lawyers also backed passage of new laws requiring judicial "dark money" donor groups to identify their contributors.

The bar association also proposed changes to the state's judicial ethics code that include barring most gifts to judges, except from relatives. The changes would require judges to learn about their campaign contributions and would create a system for removing a judge from a case if a party in it has made sizable campaign donations.

"Americans believe overwhelmingly that campaign contributions affect judges' decisions on the bench," said Jon Comstock, chairman of the bar association task force that wrote the report debated Friday.

"Our discussion in Arkansas is the perception and the confidence the public has for its judiciary," he said.

Several speakers worried about asking Arkansans to give up voting on Supreme Court justices. The state constitution calls for electing all judges, so any change would require a statewide vote.

"This is a really difficult issue," said George Wise Jr. He cited two principal ways the public plays a hands-on role in the court system: "We let them serve on juries, and we let them vote for judges."

"I hate to see one of the ways we let ordinary folks participate be taken away," he said.

Bar association secretary Tom Curry said persuading voters to approve merit selection of Supreme Court justices "will be a hard, uphill struggle. But I'm also confident if we don't ask, there will never be a vote. I think we need to ask."

Dark-money spending from certain nonprofits, which aren't required to disclose their contributors, has turned up in the past three Arkansas Supreme Court elections. All three candidates targeted by those attack ads lost their races: Tim Cullen in 2014 and Clark Mason and Justice Courtney Goodson in 2016.

Dark-money advertising is "a threat to the judiciary and the public's confidence in its ability to be fair and impartial," according to the bar association task force's report.

An Arkansas Democrat-Gazette series in January reported that six firms of lawyers who work together on class-action cases were among the biggest campaign donors since 2009 to current Supreme Court justices. The lawyers had won eight cases before the Supreme Court in that time. Court records didn't show any losses.

Justices denied any conflict of interest in their rulings and cited state judicial ethics rules that now instruct them to remain ignorant of their campaign contributions.

While the bar association's governing group, the House of Delegates, voted in favor of appointing Supreme Court justices, they plan to draft specific legislation later.

The bar's task force report suggested a nominating commission, which would hold interviews of candidates that would be open to the public. The commission would recommend three choices to the governor, who would pick one. Strict timelines would govern the process.

The final proposal would go to legislators, who would decide whether to refer it to a popular vote.

Among other bar association proposals:

• Allow judges and judicial candidates to have knowledge of their contributors. Then campaign contributions would be one factor in a judge's decision of whether to remove himself from a case.

• Require judges who recuse to disclose the reasons on the record "if a request is made by a party."

• Mitigate the impact of dark money in judicial elections. "What can be done, should be done," the bar's task force wrote in its report.

The report also cited a U.S. Supreme Court decision, Williams-Yulee v. Florida Bar last year, which said "judges are not politicians, even when they come to the bench by way of the ballot."

"States may regulate judicial elections differently than they regulate political elections because the role of judges differs from the role of politicians," the Supreme Court ruling said.

• Continue nonpartisan elections for Arkansas Court of Appeals, circuit court and district court judges.

• Prohibit judges from receiving reimbursements and fee waivers from political organizations.

• Prohibit judges or judicial candidates from soliciting contributions or other help from organizations that spend money to influence elections.

• Create rules requiring attorneys, law firm members, and clients to disclose any campaign contributions they have made to the judge in any case.

• Recommend that the Arkansas Supreme Court, General Assembly and governor's office "take all lawful action necessary" to obtain and disclose to Arkansas voters the identities of campaign contributors.

• Require dark-money nonprofits to file campaign-finance reports naming their contributors and amounts.

• Require online filing of campaign-finance reports into computer databases to give the public easier access to the information.

Metro on 06/18/2016

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