FAIR COURTS = JUSTICE

THE JUDICIAL BRANCH “The founders realized that there has to be some place where being right is more important than being popular or powerful, and where fairness trumps strength. And in our country that place is supposed to be the courtroom.” Justice Sandra Day O’Connor

Topics 1.Characteristics of a fair and impartial judiciary 2.Differences between state and federal courts 3.Elements of judicial decision-making 4.State and federal judicial selection and retention processes 5.Current issues impacting fair and impartial courts

Warm Up Exercise These factors should NOT impact the judge’s decision in your case  Public opinion about the issue you oppose  Your political party affiliation  The position of special interest groups on the issue  Media reports  Personal perspectives or affiliations of the judge  Money or contribu tions When you walk into the courtroom and face the judge

How are judges different from other elected officials? Legislators make decisions based on the needs/desires of their constituents or voters, their own beliefs, or their political party’s agenda. Judges must follow the law and should not be influenced by politics, special interest groups, money, public opinion or their own personal beliefs. They should be fair and impartial.

At the start... Colonial Era Judges selected by the King. Colonists outlined complaints in the Declaration of Independence citing how the King abused power and controlled the judiciary. “He (King George III) has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.”

What would happen? If a judge ruled against what the King wanted, then they would lose their jobs. The King would just select new judges that would rule the way he wanted Judges would no longer base decisions on the rule of law but rather on what the King desired! If judges ruled based only on the desires of the King (or the Legislature or the President or the Governor) then how would our government be different?

United States Constitution It limits the powers of government It provides the structure/functions of government Separation of powers Checks and balances It establishes the rule of law It protects the rights of the people Anything else? Who does the Constitution protect you from? Developed by The Florida Law Related Education Association, Inc.,

What if one entity was able to… … enforce the law …and interpret the law …make the law

The Role of the Courts

What does the judicial branch do? The role of the judicial branch is to resolve disputes through a legal process, interpret the law and determine if a law is unconstitutional. To challenge the constitutionality of a law, someone must bring a case to the courts. Unlike in many countries where laws are reviewed by the courts BEFORE they become law, in the United States, laws are passed by Congress and state legislatures without judicial review. Judicial review only if someone challenges the law in court.

Two Parallel Court Systems Federal and state courts

Federal and State Court Systems State Supreme Court Appellate Courts Circuit Courts County Courts U.S. Supreme Court U.S. Courts of Appeal U.S. District Courts appeal

Different Kinds of Courts Fair and Impartial Application of the Law Trial CourtAppellate Court* Judges sit individually Juries are present in certain cases Prosecution or Plaintiff v. Defendant Attorneys call witnesses and present exhibits as evidence First opportunity for a case to be heard and establishes facts Panel of judges No juries Petitioner or Appellant v. Respondent or Appellee Attorneys submit briefs and present oral arguments on legal issues Determines if the law was applied correctly and if the trial was fair *Appellate courts do not rehear the case over again. Appellate courts focus on questions of law, NOT on questions of facts like the trial courts. The appellate judges want to know whether the law was applied correctly.

Current Issues Impacting State Courts What issues impact fair and impartial state courts?

STATE OF THE JUDICIARY “I am anxious about the state of the judiciary in America. What worries me is the manner in which politically motivated interest groups are attempting to interfere with justice.” - Sandra Day O’Connor

What issues impact fair and impartial courts? Infusion of politics and special interest money into judicial elections. Political attempts to pack the court with like-minded individuals Attempts to remove state court judges because of a decision on a controversial issue Reduction of state court funding by the legislative or executive branches Negative campaign ads Politicization of selection and retention processes

Who selects judges?

Federal Judges (US Constitution) Appointed for lifetime terms, assuming “good behavior” Appointed by President and confirmed by Senate (Completes comprehensive questionnaire; referred to the Senate Judiciary Committee where confirmation hearings are conducted; American Bar Association Standing Committee on the Federal Judiciary provides an evaluation of the professional qualifications of the nominee’s integrity, professional competence and judicial temperament.)

States utilize one of three models Elections –Either Partisan or Nonpartisan Appointments –Different models in different states State constitutions or statutes set methods for seating state judges Hybrid models – Merit Selection and Retention Using Nominating Commissions to review candidates, followed by appointment and retention elections

What model does your state use? What model does your state use to appoint appellate judges?

Choosing and Retaining Judges in Alaska Merit Selection and Retention

Based on a review of what worked best in other states to achieve a fair, independent, impartial, and accountable judiciary, Alaska’s constitutional framers established: a merit selection system for choosing judges; and a retention election system for retaining them. A matter of merit

What is Merit Selection? The Alaska Judicial Council, a citizen’s commission, screens applicants for judgeships and nominates the two or more most qualified applicants to the governor The governor must appoint a judge from among the Council’s nominees

Who is on the Alaska Judicial Council? Appointments to the Judicial Council The governor appoints the public members, and the legislature confirms them. The lawyer members are appointed by the Board of Governors of the Alaska Bar Association. Each member serves a six-year term. Terms are staggered so that one member is appointed every year. Members come from different areas of the state. The Alaska Judicial Council has three public (non-lawyer) members and three lawyer members. The chief justice of the Alaska Supreme Court is the chair of the Council, but only votes when necessary.

How Does the Judicial Council Gather Information About Judicial Applicants? Reviews the applicant’s legal and life experience, education, and community service Surveys Alaskan lawyers about the qualifications of each applicant. Contacts an applicant’s present and past employers and the applicant’s references Sends questionnaires to judges and lawyers involved in cases handled by the applicant Investigates disciplinary matters, credit history, criminal records, and lawsuits Assesses an applicant’s writing sample Investigates potential conflicts of interest and any other issues Holds a public hearing, and encourages the public to comment about applicants Interviews each applicant

How do Judicial Council Members Decide Who is “Most Qualified”? Professional Competence – Intellect, diligence, legal knowledge, organizational and administrative skills, ability to work and communicate well with various people Integrity – Consistent history of honesty and high moral character Fairness – Ability to be impartial to all, and commitment to equal justice under the law Temperament – Compassion, humility, and a history of courtesy and civility Judgment and Common Sense - Balance between knowledge and practical reality Legal Experience – Amount and breadth of an applicant’s legal experience, and the suitability of that experience for the position sought Life Experience – Diversity of experience, exposure to persons of different ethnic and cultural backgrounds, and demonstrated interests in areas outside the legal field Public Service – Commitment to the community generally, and to improving access to the justice system in particular

Merit Selection and Retention The merit selection and retention process was designed to reduce outside influences on the judiciary Political pressures Personal opinions Popular opinions Corruption Other influences

Alaska’s judicial selection system focuses on merit-based, apolitical evaluation of the applicant’s professional qualifications. Merit selection ensures that every judge is well-qualified. Applicants need not make promises to, or raise money from, individuals or special interests to obtain a judgeship. Alaska does not experience the problems that occur when elected judges make promises to, and raise money from people and attorneys who appear before them. Merit selection increases the likelihood of fair, honest, independent, and impartial courts. Benefits of Merit Selection

How Can Someone Learn More About Merit Selection in Alaska? Alaska’s merit selection process is among the most transparent in the nation The Alaska Judicial Council makes applicants’ names and most of their written applications available to the public Alaska is only one of two merit selection states where the nominating commission’s votes are open to the public The Council’s detailed selection procedures are available on its website at

How long is a judge’s term in office? The judges serve initial terms of 2 or 3 years, depending on the level of court. Thereafter, Alaskans vote on whether a judge should serve another term. Judges’ new terms of office are: District Court – 4 years Superior Court – 6 years Court of Appeals – 8 years Supreme Court – 10 years

Voters decide Once appointed, how do judges remain in office? At the end of each new term of office, voters decide whether a judge should serve another term. Elections in which voters decide whether a judge should serve another term are called “retention elections.”

How do retention elections work? Performance Evaluations To help voters make informed decisions on whether judges should be retained, Alaska law requires the Alaska Judicial Council to evaluate the performance of judges and to publicize its evaluations and recommendations. A retention election is different that a typical election in that judges do not run against opponents. Alaskan voters simply are asked to vote “yes” or “no” on whether a judge should serve another term in office. Retention elections allow the public to hold judges accountable.

How Does the Council Evaluate Judges? Surveys thousands of Alaskans including police, probation officers, court employees, attorneys, jurors, social workers, and child advocates Solicits specific feedback from attorneys who appeared before the judge in recent cases Considers ratings and observations of independent, community-based volunteers who attend courtroom proceedings and rate a judge’s performance Reviews how often a judge was disqualified from presiding over a case, how often a trial judge was affirmed or reversed on appeal, whether a judge has been involved in disciplinary proceedings, and whether a judge’s pay was withheld for a late decision Performs detailed follow-up investigations of any potential problem areas, and may conduct personal interviews with presiding judges, attorneys, court staff, and others about the judge’s performance Solicits public feedback on its website and holds a statewide public hearing to obtain comments about judges

What Is Important To the Judicial Council When It Evaluates Judges? Important The Council considers whether a judge has been: Fair Hard-working Knowledgeable about the law Respectful Not Important The Council does not consider: Whether a judge’s decision was popular How a judge ruled, or is likely to rule, in a particular case

Most people, or their family members or friends will appear before a judge at some point Judges preserve the rights of citizens, decide child custody and other important family matters, resolve business disputes both large and small, send people to jail, and make other decisions that affect people’s lives in fundamental ways Voters serve themselves and their fellow citizens by voting to retain judges who perform well and voting not to retain a judge who does not meet expectations Why should voters care about retention elections?

Where can I learn more about the judges on the ballot? The Alaska Judicial Council publishes its evaluations on its website at The Alaska Judicial Council publishes summaries of its evaluations in an official election pamphlet distributed to every Alaskan household The Council publishes as much or more information about the performance of judges than is available anywhere in the world

THE MERIT SELECTION SYSTEM FOR CHOOSING JUDGES AND RETENTION ELECTIONS HAVE RESULTED IN AN ALASKAN JUDICIARY THAT IS: Knowledgeable Fair Honest Diligent Respectful Impartial Independent Accountable

Judging Judges

THE DANGER OF LABELS “Judicial Activism” “Legislating from the bench” “Judge-made law” “Conservative” vs. “Liberal” Judges

Consult multiple sources Review biographies of judges on court or bar association websites Read materials published by nonpartisan groups like the League of Women Voters Review published polls of attorneys and others highlighting approval ratings of judges or justices Watch online or gavel-to-gavel coverage to observe courtroom demeanor of judges or justices. You can also read decisions in the cases Check for public reprimands or other disciplinary actions Check to see if the judge has any history of discipline as a lawyer How to evaluate judges

How can you make informed decisions to ensure fair and impartial courts? Think critically about the role of judges in our constitutional system Examine the judge’s legal and judicial experience as well as his or her educational background Seek information on the judge’s temperament and judicial demeanor on the bench Determine if the judge has disciplinary record as a lawyer or judge Read decisions/opinions in cases to examine judicial reasoning rather than listening only to sound bites and negative ads What else would you add?

Benchmarks, a special public education program of The Florida Bar Justice Barbara Pariente, Florida Supreme Court The Florida Law Related Education Association, Inc. Hall+Media Strategies, Inc. Special thanks to: