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April 24, 2014

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Who’s qualified to vote for judges?

J. Patrick Coolican

J. Patrick Coolican

The election of judges is an utter farce.

Perhaps my favorite piece of data in support of this assertion is that in the 2010 election, 466,000 voters in Clark County cast their vote for a candidate in the U.S. Senate race, while about 360,000 voters made a choice in the countywide judicial races. So, 100,000 people took a pass in the judicial races.

I was one of those people. In my defense, I had been living elsewhere until a week before the election, but still, I realize it’s shameful. After all, judges make decisions that have huge ramifications for the lives of victims and the accused in criminal and civil cases.

Yes, it’s ridiculous that I’ve at times joined tens of thousands of other Nevadans and skipped a judicial race or two. I work at a newspaper for Pete’s sake. I've exhaustively covered elections, though never the judicial races. Still, one would think I would have the resources and the time to choose intelligent, well prepared and evenhanded judges.

The problem, however, is that it’s never been clear to me how to make a good decision. In political races, the political party stands as a shorthand, albeit an imperfect one, for the person’s beliefs. Then, you try to get a decent sense of the candidates from TV debates and interviews, newspaper profiles and their websites. No such luck with the judges, who are nonpartisan and receive scant media coverage, other than editorial page endorsements and brief write-ups in voter guides.

Plus, elected officials are enacting policies that you favor or oppose. Judges, on the other hand, are making rulings based on arcane points of law about which non-lawyers like myself know next to nothing. It’s like electing a water engineer. Where to even begin?

This week I set out to put myself in the shoes of the average voter and try to determine how to pick a judge.

I called some attorneys. None would go on the record to tell me the best candidates and most wouldn’t go on the record to talk at all.

This is certainly understandable, but it points to an obvious flaw in the election of judges — courtroom lawyers are the people in the best position to offer expertise but are afraid to speak publicly, lest they hurt their client’s chances. They said they spend a lot of time during election season answering queries from non-lawyer friends and family about whom to vote for — more evidence that most of us are totally in the dark.

Don Campbell, a former federal prosecutor and one of the best lawyers in town, did give me a useful piece of advice: Go with judges who have some experience as litigators, meaning they’ve tried cases in front of judges and juries. Otherwise, there’s a good chance they’ll have no clue what they’re doing. This is actually pretty rare, a tiny minority of attorneys.

Campbell said there are some excellent district court judges, but then added: “It’s frustrating to appear before a district court judge who has no conception of the rules of evidence, or the rules of civil or criminal procedure. It’s appalling. The client says, ‘How did we ever wind up with this judge?’ I say, ‘Well, they’re elected.’ ”

Of course, there’s an alternative, and you can witness it right down the street at the federal courthouse, where the judges are appointed by the president and confirmed by the Senate.

“I think everyone would universally agree they are smarter, better prepared and make better rulings,” an attorney said of federal judges.

I could write an entire column about how unseemly it is for judges to be calling lawyers who appear before them and asking for campaign money, but let’s leave that aside and return to our decision-making.

The best piece of advice I received was from an attorney who told me the only way to really make a decision about an incumbent judge is to sit in his or her courtroom for a day or two and witness their preparation, intelligence and temperament.

A more thorough vetting would entail reviewing trial transcripts, the attorney told me — mostly kidding, I think. I’m sure the voters will get on that pronto.

Let me close by returning to the 2010 election. The voters were faced with Question 1, which would have moved Nevada to an appointment-election hybrid system. The measure lost handily.

Hilariously, 432,000 voted on the question, which was about 70,000 more votes than in the typical judicial race. So people were very interested in their right to vote on judges, but not particularly interested in actually voting in the judicial races. And, I have no doubt that many people voted for their right to elect judges — dammit! — but then didn’t vote in any of the judicial races.

So, who should you vote for?

Here’s a first for this column: I’ll admit I remain confounded and have no opinion.

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  1. "The election of judges is an utter farce. . . . .Judges . . . on the other hand, are making rulings based on arcane points of law about which non-lawyers like myself know next to nothing. . . . .The best piece of advice I received was from an attorney who told me the only way to really make a decision about an incumbent judge is to sit in his or her courtroom for a day or two and witness their preparation, intelligence and temperament."

    Coolican -- you're brave to take this on, and so glad you did. Your first sentence hit this nail on the head.

    I wish the second quote was right. My conclusion, after two decades of observing, being a vocal critic and occasional unfortunate consumer of what they do, is the opposite of yours. Judges can literally sign anything for any reason without consequences. There is no truly effective machinery in place to deal with a corrupt judge who destroys the laws with his signature. If the average citizen had a clue how low the quality actually is of the average sitting judge, how their loyalties are first to bench and bar instead of their oaths and the rule of law, and how utterly useless government is when it comes to holding them accountable, there might be that revolution Jefferson hinted at.

    Don't believe me? Do what you suggested -- "sit in his or her courtroom for a day or two and witness their preparation, intelligence and temperament." I would add first read http://www.leg.state.nv.us/Const/NVConst...

    Then keep it and the Fourth Amendment in mind as you endure what it takes just to get into the Justice Center. I think you'd agree it ain't "Justice" so much as it is "Just Us."

    "If you get a corrupt judge you destroy the laws ..." -- the actually Honorable Ruben P. Boise, attorney, judge and politician in the Oregon Territory, 1857

  2. You know, I NEVER agree with any of your columns, but this one is right on. This is such an important decision to local people, probably more so that any presidential vote, yet a very small minority of people have any idea who these judges are or what they do, unless they've gotten massive media coverage for one of their cases. Having lived back east most of my life in states that appoint judges, not elect them, I can't believe the huge disparity in judicial quality in this state. And the obvious conflicts of interest asking lawyers who are likely to appear before them for campaign contributions is stunning. I know the state voted to change this rule in the past and declined to do so, but the problem will only get worse. Something needs to be done about these judges that get re-elected over and over again just because they have enough money to put the giant signs in their districts. I know that appointing judges has it's own set of problems, but If we can't trust a governor to appoint judges that actually are qualified, he or she probably should not be governor.

  3. "Here's a link to a defunct old blog..."

    The_Next_ -- link please

  4. I agree that most people do not pay attention to the QUALIFICATIONS that would-be Judges say they have. I also agree with SgtRock that we have a DUTY as citizens to find out WHO we are voting for, and to actually, VOTE.

    And since "what you see - or don't see - is what you get" - you may not like it if you wind up before a Judge who cannot - or will not - enforce and abide by the Law.

    Since visiting LV for many years, and living here for the past 20 years, I have been constantly amazed THAT YOU DO NOT HAVE TO BE A LAWYER to get elected as a Judge in Nevada. You don't even need to have a rudimentary knowledge of Law or legal procedure. You just need connections to "power brokers," or the ability to convince uninformed people to VOTE FOR YOU.

    How can a Judge be fair, and execute the Rule of Law, if he/she DOES NOT HAVE LEGAL EXPERIENCE or QUALIFICATIONS to understand what a Lawyer should know?

    My own studies of Law consists of 1 year of Contract Law (in College), and for the last 20 years - seminars, lectures, CLE classes, and any opportunity to hear, discuss, and better understand matters of Law - including Constitutional Law.

    HOWEVER, THAT background doesn't qualify ME to be a Judge.

    Yet over the years, I have seen people with a lessor background than mine, run - and get elected - as Judges. Some of them were woefully inadequate in their knowledge and practice of the Law - and most did not have ANY LEGAL CREDENTIALS that would support being a Judge.

    SO Coolican is RIGHT; "The election of judges [in Nevada] is an utter farce."

    I would agree that we should not allow "JUST ANYONE" to put their name on the ballot, and run for "Judge." They should have a LEGAL BACKGROUND - (such as, a Lawyer) - because of severe impact a Judge can have on the lives of people, and the direction of the State of Nevada.

    Many people do NOT vote for Judges, and some others just "check a box" (vote) on IMPLUSE - without any knowledge as to the person's legal backgound or qualifications, which SHOULD BE prequisites for being a Judge.

    The solution is, as noted herein, to somehow get the general public to do a little RESEARCH (reading) on the candidate - who is, in reality, seeking "EMPLOYMENT" (by the people). Such qualilfications should be no less than what is required from a person submitting their RESUME for a JOB. After all, the taxpayers are paying a Judge's salary - and have a "need to know."

    The hazard to the very people who do vote, or fail to vote, for Judges - is that they may come before "THAT" Judge some day, and WISH the Judge had some better understanding of the Law, the INTENT of a Law, and how to deal with it.

    Thus, the election of an "UNQUALIFIED" Judge, may result in n incorrect judgements - all because "the people" voted for a POLITICIAN, when they really needed an experienced "Champion of the Law."

  5. A great, timely piece, Mr. Coolican...

    It would be just as fair & reliable a system to throw all the names in a hat and appoint judges based on the 'luck of the draw'.

    All we need to know about how this system works is one name;

    Former judge Elizabeth Halverson.

  6. There are a few things I do to help me come to some decisions, although they may not be enough.

    First, as I read news articles about legal cases in the courts, I pay attention to the evidence written about as well as the judges actions after the jury has rendered a guilty judgment.

    This came about after reading an atrociously unjust decision by Judge John Hardcastle as it related to the fraud and robbery on a man with Alzheimer's disease. I was outraged and decided I would keep a record of such unjust decisions. I use it my record.

    Next, I try to find ratings of judges by lawyers. An example is this article that appeared in the RJ.

    http://www.lvrj.com/news/judging-the-jud...

    I check the Clark Co. Bar Assocation, and do a search.

    https://www.clarkcountybar.org/

    I also check the websites of each candidate for a position on the bench. You can learn things from their sites as to their education, trial experience and positions on how they will carry out their decisions.

    There are ways to learn about the judge candidates if voters want to take the time.

    Personally, I consider it part of my citizenship responsibility, so it doesn't bother me to devote time to learning about candidates for any office they are seeking.

  7. Voters don't seem to comprehend that judicial elections produce inferior judges. It is important for the public to understand that we aren't truly "selecting" judges when we elect them. If judges were appointed, the vast majority of those we have elected in Las Vegas would not be on the bench. Candidates must be willing to hustle votes and raise money for their campaign. To do both, they must depend heavily upon lawyers who appear before them, which can create impropriety and appearances of impropriety. Candidates feel pressure to conform to popular opinion or to favor the interests of those who contribute to their judicial campaigns. Plaintiffs' lawyers are disproportionately high financial contributors to election campaigns obviously to curry favor with the judges to whom the contributions are made.

    As long as a person meets the minimum requirements to be a judge (attorney in good standing with state bar) they can enter a judicial race. The candidates will never face the screening systems and merit commissions that appointing authorities use to select the most qualified judges. The election process provides absolutely no means of screening potential candidates. Not surprisingly, we have many low ability judicial candidates who ultimately are elected as judges.

    Many defend judicial elections because they appear to make judges accountable to the people. This accountability is at the expense of judicial independence. An elected judiciary isn't free to make the tough choices, some of which may be unpopular. Judges should not be accountable to the people but to the Constitution and the rule of law.

  8. The election of judges was developed for the wild west politics, when whiskey was used to help the voter decide the merits of the candidates and many judges left office on a stretcher. It is an archaic and fossilized ritual of Democracy from times when laws were manufactured out of blue sky and judges were elected to uphold them...but evolution does take a long time to occur.

  9. I agree with former U.S. Supreme Court Justice Sandra Day O'Connor who believes that a better system is one that strikes a balance between lifetime appointment and partisan election by providing for the open, public nomination and appointment of judges, followed in due course by a standardized judicial performance evaluation and, finally, a yes/no vote in which citizens either approve the judge or vote him out.

    You can read more about her position here: (http://www.nytimes.com/2010/05/23/opinio...)

  10. Anyone who has the endorsement of law enforcement is automatically suspect in my view of being biased. Former prosecutors are particularly subject to this view.