Task force urges end to elections of Arkansas Supreme Court justices

It advises ending justices’ election

In the aftermath of state Supreme Court races rife with negative advertising funded by out-of-state groups, a special legal task force is recommending that Arkansas end elections for its top court.

On Thursday, the Arkansas Bar Association released the recommendations of its Task Force on Maintaining a Fair and Impartial Judiciary. The task force, a group of lawyers and judges, recommended abandoning elections as the method of choosing the seven Supreme Court justices and replacing it with an appointment system of the "merit selection" type. The change would involve a constitutional amendment.

The task force also had other recommendations intended to protect and promote the integrity of the judiciary.

"A system within which appellate judges of last resort are elected is at odds with the principles that originally informed the creation of the judicial branch, which saw the courts as a forum that was 'above' the political fray," the task force wrote. "The last three Supreme Court election campaigns in Arkansas demonstrate how local campaigns can be overwhelmed by the dark money effort. ... There is every reason to believe that 'dark money' will continue its aggressive presence in Arkansas -- and will continue to unduly influence Supreme Court election outcomes."

The head of the Bar Association, Fort Smith lawyer Eddie Walker, said the recommendations will go to the group's house of delegates for consideration June 17 at the association's annual meeting in Hot Springs.

If the recommendations are adopted, the association would begin advocating for them, which also included more restrictions on the type of money that can be donated to judicial campaigns, greater efforts at disclosure and, when necessary, recusal of judges.

As president, Walker said, he couldn't comment on the task force's recommendations, but he suggested that at the heart of the debate is a dearth of information on the judiciary for average voters.

"I would not suggest there is an ignorance ... but it's difficult to understand what it is you're supposed to be assessing [as a voter] if you don't know generally what the function of that person is or generally what kind of characteristics are important," Walker said. "We believe the public is best served if they can make an informed decision. If you have people voting on only name recognition or advertising, then you're obviously not in a position to make an informed decision."

The task force, formed in March after the judicial general election, had the responsibility of researching and debating the best ways to safeguard the integrity of the state's third branch of government, one that has had nonpartisan elections since 2000.

In this year's two contested races for Supreme Court seats, the losing candidates were targeted by out-of-state groups that poured hundreds of thousands of dollars into negative TV advertising.

The Judicial Crisis Network, a Washington, D.C.-based group that typically supports more conservative judges, spent at least $622,435 on negative ads against Justice Courtney Goodson, who was seeking the position of chief justice. Goodson lost to Dan Kemp, a circuit judge. By comparison, Kemp's campaign raised $384,734 from donors.

The Judicial Crisis Network does not have to report the source of its contributions and is what many call a "dark money" group.

Another Washington, D.C.-based group, the Republican State Leadership Committee, spent about $400,000 in ads meant to discredit Supreme Court candidate Clark Mason. Mason raised $107,811 from donors and spent $154,586 in his loss to Circuit Judge Shawn Womack, a former Republican lawmaker. Womack reported spending $148,177 in the race.

"Most contributors in the political arena insist ... [contributions are about] 'access and input' ... not an illegal quid pro quo," the task force wrote. "The majority of [the task force] believes that continuing the current spending spree at the Supreme Court level will raise in the minds of the public, whether or not that same rule of access and input [applies] to the judiciary."

A majority of the task force recommended the formation of a nominating commission that would include legal professionals to winnow applicants for the bench to a list of three applicants. The governor would then pick the next justice from those three.

That process, oftentimes referred to as "merit selection," is law in 22 states. Arkansas is one of 14 states that has nonpartisan elections.

To undo the state's process of electing its Supreme Court justices, which is set by Amendment 80 of the state constitution, voters would have to approve a constitutional amendment.

Rep. Matt Shepherd, R-El Dorado -- a member of the task force and champion for merit selection -- said that although no state has chosen merit selection through constitutional amendment since 1994 (Rhode Island), he would once again try to persuade the Legislature to put the question on the ballot for voters.

"It's a big undertaking; I understand it's a significant change," Shepherd said. "There will be people who prefer to leave things as they are. ... I don't think it's surprising in light of the fact that you're talking about a significant issue ... but in my view, it's a change that needs to be looked at and considered."

Of the 17 members of the task force, 11 supported such a change.

Those in the minority felt that policy aimed at shutting out dark money and requiring greater disclosure and recusal from candidates and judges would achieve the desired goals without cutting voters out of the process, the task force report said.

During a legislative committee meeting in the run-up to a recent special session, both lawmakers and lawyers expressed skepticism about taking away voters' rights to be included in the selection of the Supreme Court.

The Arkansas Trial Lawyers Association, whose members have been active in campaign contributions for appellate court races, were among the most vocally opposed to ending such elections. The head of the group, Bob Edwards, did not return a call Thursday.

Scott Strauss, the head of the Arkansas Association of Defense Counsel, said his organization had "diverse" opinions on the matter, but suggested that by ending the current method of fighting over who will be a justice, the next fight would focus on those doing the nominating, who might then be the target of outside money.

He also pointed out that the irony of the task force recommending that voters be asked to vote in order not to be able to vote.

"The discussions I hear are about the appointment process, and everybody assumes away the first step. Everyone sort of rips right past that," Strauss said. "Can you imagine the kind of election rhetoric that would accompany [such a proposal]? .... 'These people want to take away my right to vote because they think I'm not smart enough.' That would be one side."

The task force, by great majority, supported policy that would require out-of-state groups spending money on ads in the state to register and report the source of their funds.

Such law was proposed by Rep. Clarke Tucker, D-Little Rock, in 2015, but it failed to get through committee. Tucker had proposed that the measure be included on the call for a recent special session, but it was not.

Opponents of such a measure argue that it could violate individuals' rights to associate, their right to speech through spending, as well as their rights to privacy.

There was no opposition in the task force to changes to state law and ethics standards that would require judges to know the identity of those contributing to their campaigns. Currently, judges are not supposed to know who donated to their campaigns, a gap that critics claim could lead to cases where a judge should have recused but did not.

Changes to state judicial canon also would prohibit judicial candidates from seeking or accepting endorsements from political organizations, the types of which, by the task force's recommendation, would be expanded to include a "wide range of organizations which may contribute to candidates or that expends money to influence the outcome of an election, or engages in lobbying."

Some members of the Arkansas Supreme Court formed a parallel committee to examine the same issues. A call to that group's head, Justice Karen Baker, was not returned Thursday.

A Section on 06/03/2016