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November 28, 2014

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Judge who? The debate over appointment versus election

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Elizabeth Halverson

The argument for reforming how Nevadans choose judges begins with Elizabeth Halverson. Elected District Court judge in 2006, she was removed from office in 2008 amid accusations she had fallen asleep on the bench, had improper contact with jurors and ordered staff to rub her feet.

Yet as unsettling as the Halverson episode was, longtime attorneys say a deeper look at the system that landed her on the bench yields an even more disturbing portrait: Voters choosing judges in a near informational vacuum; attorneys writing checks to the campaigns of the judges who rule on their cases; and the specter that these donations influence judicial decisions.

“If you wanted to design a system that would tempt everyone to be corrupt, you would design the system we have right now,” said Al Marquis, a Las Vegas real estate and commercial lawyer for 35 years. When asked if he thought the outcomes of cases have been influenced by campaign donations to judges, he said, “I have no doubt about that.”

Marquis’ frank talk comes as a bipartisan group of politicians, attorneys and former judges is seeking to change the system. Nevadans for Qualified Judges is headed by state Sen. Bill Raggio, R-Reno; former Nevada Supreme Court Justice Bill Maupin; and developer Irwin Molasky. It’s supported by Democrats such as Assembly Speaker Barbara Buckley, who is head of the Legal Aid Center of Southern Nevada.

The vehicle for their proposed changes is Question 1 on November’s ballot, which would amend the constitution to change how Nevada selects judges.

An appointed board would review applications from judicial candidates and select three finalists. The governor would then appoint a judge from the list. Twelve to 25 months after being appointed, the judge would stand for a “retention election” — an up-or-down vote on whether he or she should remain on the bench. Candidates for retention would be evaluated by a Judicial Performance Commission. Its findings would be made public.

Failure to get 55 percent of the pro-retention vote would result in the judge being removed.

Proponents of the ballot measure say Halverson had no business becoming a judge in the first place. She won election because voters didn’t know who she was or what her qualifications were, they argue.

Research by David Damore, a UNLV professor of political science, shows at least some voters are in the dark on judicial candidates. He found that 16 percent of votes in Nevada Supreme Court races went to “none of these candidates” compared with less than 10 percent in other statewide races. Additionally, a higher than average number of voters skipped voting on Supreme Court races altogether.

Damore thinks it is an indication that people don’t know who is running for the state’s highest court.

So when voters in Clark County are faced with choosing candidates for more than 30 District and Family Court judges (there are 72 statewide), as well as justices of the peace and municipal judges, things can get really fuzzy.

Raggio, a partner at the law firm Jones Vargas, said people will ask him who he likes in judicial races. But even someone as enmeshed as he is in the legal and political community is in the dark about those seeking judgeships.

“I rarely know these judges,” Raggio said. He also said many judges run unopposed.

Yet even if the public doesn’t know judicial candidates, they still want a voice in electing them.

A poll last month by the Las Vegas Review-Journal found voters opposed Question 1 by 54 percent to 27 percent, with 19 percent undecided.

So why does the public want to cling onto this right to elect judges?

“My hunch is people just don’t trust government,” Damore said. “They’re not necessarily making informed choices. But the idea of somehow losing that option, they don’t like.”

And the argument against the measure is just that. Critics say that a committee selection process would lead to cronyism and only candidates with political juice being appointed to the bench.

The ballot measure would create a Judicial Selection Commission. Supreme Court nominees would be chosen by the chief justice; four attorneys appointed by the State Bar’s Board of Governors; and four nonattorneys appointed by the governor.

District Court judges would be appointed by the same panel, plus two attorneys who are residents of the judicial district appointed by the State Bar and two lay residents of the district appointed by the governor.

This unquestionably concentrates a lot of the power in the hands of the governor and the State Bar.

But critics of the current process say it’s a better alternative to what is a broken system.

“We have a good ol’ boys network now. We have cronyism now,” Marquis said. “People giving the most money are buying the most influence.”

Privately, lawyers and legal observers have acknowledged that campaign contributions have influenced some cases. But they have avoided saying more than that there is a “perception” problem for fear of angering judges.

As Raggio, who has fought for changes to the judicial system for decades, said: “The perception is, ‘Hey, if you want to get a little leg up the tree so your views are considered more favorably, you give a campaign contribution.’ ”

Thirty-five Nevada Supreme Court candidates raised more than $9.8 million for high court races from 2000 to 2009. Nevada placed eighth out of 26 states analyzed in a study of states’ high court races released last week. And those are just the Supreme Court races.

Lawyers and companies that appear in court are pressured by judges to donate to campaigns, Marquis said. A donation to the judge is “almost required,” he said. “What are you going to do, tell them no and jeopardize a future client’s case?”

He declined to provide specific examples of cases influenced by campaign donations, acknowledging, “you can never know for sure.”

Marquis added that many Nevada judges have integrity and try to separate contributions from decisions. “But human nature is human nature,” he said.

Some political observers have privately noted that when the Nevada Supreme Court ruled in 2008 that casinos don’t have to pay sales tax on meals that are comped, the court reversed decades of casinos paying the taxes. It also happened to benefit some of the state’s most powerful interests and largest campaign contributors in judicial races.

Former U.S. Supreme Court Justice Sandra Day O’Connor has been speaking nationally about judicial reform and the corrupting influence of money on the courts. She has agreed to be an honorary chairwoman of Nevadans for Qualified Judges.

“When you enter one of these courtrooms, the last thing you want to worry about is whether the judge is more accountable to a campaign contributor or an ideological group than to the law,” she said in a statement.

Buckley said, “There’s a perception that you get the best results if you’ve given the most money.”

This initiative won’t totally take money out of judicial races. Candidates could still campaign to ask voters to retain them. But Buckley said, “What we’ve certainly seen in other states is a reduction in the amount of money in the system. And it becomes more about quality decision-making than running political campaigns.”

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