1. FAIR COURTS = JUSTICE

2. 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

3. 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

4. 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

6. 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.

8. 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.”

9. 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?

10. 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., www.flrea.org

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

13. The Role of the Courts

14. 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.

17. Two Parallel Court Systems Federal and state courts

18. 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

19. 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.

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

21. 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

22. 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

23. Who selects judges?

24. 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.)

25. 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

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

27. Judicial Selection in Kansas

28. A matter of merit What Is Merit Selection? A process for selecting judges based on their qualifications or merit. Judicial Nominating Commission investigates backgrounds of candidates and interviews them at public meeting, then votes which three candidates will be considered by Governor. Governor has 60 days to appoint one of the three. If Governor fails to make appointment in 60 days, Chief Justice appoints judge from list of three.

29. A matter of merit What Is Merit Retention? Election in which voters decide whether a merit-selected judge should remain in office First retention election held after judge’s first full year in office If judge remains in office after first retention election, then additional retention elections take place every six years for Supreme Court Justices and every four years for Court of Appeals, District, District Magistrate Judges

30. Voters decide Appellate court judges in Kansas go on the ballot for their first retention vote within two years after their appointment Once appointed, how do judges remain in office?

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

32. Selection of Supreme Court Justices Voters established merit selection for the Kansas Supreme Court in the state’s Constitution The members of the Supreme Court Nominating Commission are: Four laypersons selected by the Governor, one from each of the four Congressional Districts Four lawyers, one from each of the four Congressional districts, elected by the lawyers in their districts One chairperson, a lawyer elected by lawyers statewide The Kansas Bar Association has NO role in the selection of lawyer members or the chair of the Supreme Court Nominating Commission

33. Selection of Judges for Kansas Court of Appeals Only one appointment made to date under the new system eliminating screening and nomination of candidates Governor now appoints without input, subject to confirmation by the Senate Names of applicants for the new 14 th seat created on the Court of Appeals were not revealed Names of lawyers interviewed by the Governor for the position were not revealed The Senate, while in special session for a few days in September, affirmed appointment of the Governor’s Chief of Staff – who will take the bench in January Until 2013, selection method for appellate court judges was identical to the merit system used for appointments to the Supreme Court Process established by statute, not the constitution New process passed by the legislature and signed by the Governor eliminated merit screening by a nominating commission

34. District options for selection of trial court judges in Kansas Partisan Election Half of the 31 judicial districts in Kansas have partisan elections for the trial bench Merit Selection and Retention Half rely on district nominating commissions to select candidates to send to the Governor for choice of appointment Commissions made up of equal number of laypersons and lawyers Laypersons selected by county commissioners of the district A Kansas Supreme Court Justice assigned as Departmental Justice for the district serves as the non- voting chair of the commission

35. District Magistrate Judges Selected according to same local option used for district judges In merit-selection districts, the district nominating commission selects the magistrate rather than forwarding candidates to the Governor for his or her selection

36. Once selected, how are judges held accountable? Oath of Office – sworn to support, protect and defend the US Constitution and Kansas Constitution The Appellate Process – judicial decisions can be appealed to a higher court for review Judges must follow the Constitution (US and State), statutes/sentencing guidelines, case law (precedent), rules (court and procedural) Retention or Partisan Elections by Kansas voters

37. How are judges held accountable? Code of Judicial Conduct – standards of ethical conduct for judges. Reports of misconduct directed to JQC (Judicial Qualifications Commission) for investigation. Judges can be disciplined (from reprimands to removal from bench) for violations of Code of Conduct. Impeachment

38. Selection of Judges for Kansas Court of Appeals Until 2013, selection method for appellate court judges was identical to the merit system used for appointments to the Supreme Court Process established by statute, not the constitution New process passed by the legislature and signed by the Governor eliminated merit screening by a nominating commission

39. Judging Judges

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

42. 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

43. 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?

44. 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: