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Does Higher Judicial
Salaries Attract Better Candidates?
The Courts: States Rein In Truth-Bending by
Candidates for Judgeships
By William Glaberson
the first time in its history, Alabama's judicial discipline panel has
filed charges against an incumbent justice of the State Supreme Court.
The panel charges that he falsely said in television advertisements
during the campaign for a primary in June that his opponent "let convicted drug
dealers off" at least 40 times.
In Pensacola, Fla., a trial judge
is facing the possibility of removal on charges that among other
things, she misrepresented an election opponent when she called him
"Judge Let 'em Go Green."
When a candidate for a seat on
the Georgia Supreme Court ran an
advertisement that said the
incumbent "has called the electric chair silly," disciplinary officials
responded by calling the accusation "intentionally deceptive." The
incumbent was actually a death penalty supporter who had said the
electric chair was silly solely because she thought it an outmoded and inhumane
method of execution.
Across the country, judges are being fined,
censured and even
threatened with removal for practicing that venerable
political art: exaggerating or outright lying during a campaign.
Although many applaud the development as a needed antidote
dishonesty, it is not without its opponents, who say it places
disturbing limitations on the First Amendment's free-speech protection.
Judicial conduct codes in many states have long required
candidates for the bench to avoid making false or misleading
statements. But those codes were only sporadically applied in the days
when judicial campaigns consisted mostly of polite promises of
Justice Leah J. Sears of the Georgia Supreme Court, who
re-election despite what a disciplinary panel found to be an unethical
accusation by a challenger.
Now judicial campaigns in quite
a few of the 40 states that elect judges have recently become
mudslinging matches, complete with attack advertising. As a result,
judicial disciplinary panels are regularly trying to do something unique in
American politics: forcing candidates to stop calling each other
lazy, corrupt or soft on crime, unless they can prove it.
judicial conduct commissions in every state are more vigilant
things than they have been in the past, if for no other reason than that
these horror stories about judicial elections are hitting the newspapers,"
said James J. Alfini, an expert on judicial discipline at Northern
Illinois University School of Law.
Supporters of the truthfulness
campaigns say that the very nature of the courts means that they must be
more trustworthy than the other branches of government, and
that judicial candidates must therefore be more principled than
candidates for other elected office.
But critics of
the integrity drive say it not only limits candidates' First
Amendment right to political expression but also, in placing boundaries on
the character of campaign give-and-take, threatens to curtail
the information that voters need to make informed choices.
critics are particularly alarmed because concerns about judicial campaign
abuses have inspired at least six states since 1996 -- Alabama, Georgia,
Michigan, Nevada, Ohio and South Dakota -- to create organizations to
monitor judicial elections.
Some of these new bodies are authorized to
issue statements during campaigns informing voters when judicial candidates
make false or misleading claims.
In Alabama, an older panel, the
Judicial Inquiry Commission, which more typically concerns itself
with matters like corruption on the bench, said last month that before the
primary for chief justice in June, an incumbent on the State Supreme
Court, Harold F. See Jr., falsely accused his opponent, Judge Roy S. Moore,
of leniency toward drug dealers.
Justice See, the commission said,
ran the advertisement that carried that accusation "knowing it would
be deceiving or misleading."
Justice See, who lost the
primary and now faces the possibility of disqualification from office
before the end of his term as an
associate justice, has said he did
nothing improper. He is challenging the constitutionality of Alabama's
disciplinary rules in federal court.
Courts in several other states are
also considering First Amendment challenges to the enforcement efforts,
and lawyers say that ultimately the United States Supreme Court will most
likely be asked to decide the extent to which states can regulate the
speech of judicial candidates.
One such free-speech case involves the
actions of Georgia's new
monitoring panel and the
A few days before a 1998 election,
the panel issued a statement
that said the accusation, in a
television advertisement for George M. Weaver, a challenger for a
seat on the State Supreme Court, was "unethical, unfair, false and intentionally
The election was won by the incumbent, Leah J. Sears,
Weaver filed suit against the monitoring body, maintaining that
its members had intentionally ruined his chances.
Justice Sears said in an interview that it was important that someone review the
claims of judicial candidates, because, she said, the target of false
accusations in a race for the bench cannot fully respond to them: in
addition to the rules forbidding candidates to mislead voters,
Georgia, like most states, has rules that bar judicial candidates
from discussing how they would vote on issues that might come before
"He could pretty much say anything," Justice Sears said of
Weaver, "and I could not answer. As a judge, I am stuck."
Mr. Weaver denied in an interview that he had been trying to
He said that his advertisement was true and that in
its referring to Justice Sears' calling the electric chair silly, its
intent had been to show that she was an activist willing to comment on
But the main purpose of his suit, he said, is
to establish that
aggressive advertising like his is as much fair game
politics as in campaigns for other offices.
can't expect that voters are so stupid," he said, "that they
the government's help to decide what is true or false political speech."
About a dozen recent cases around the country suggest that
many judicial races, few inhibitions remain.
judge is facing disciplinary proceedings for implying that his opponent was
fighting a charge of unwanted sexual contact with a court employee. A
disciplinary panel found that the opponent had never faced that charge.
A Nevada judge ran a television advertisement urging voters
"re-elect" him. But as a disciplinary panel noted, he had never held
a seat on the court for which he was campaigning.
involving judges often become pitched battles that
draw in much of the
local legal establishment.
In Bradenton, Fla., a trial judge,
Matthew E. McMillan, is in a fight against disciplinary officials that has
become a hometown spectacle.
In a campaign challenging an incumbent in
1998, Mr. McMillan
referred to his opponent, a 16-year veteran, as a
part-time judge in a full-time job, asserting that he had worked in court
only 12 hours a week and in one year had taken 86 days
off, excluding weekends and holidays.
Mr. McMillan won the
election but has been fighting many disciplinary charges ever since,
including a claim by the state's
Judicial Qualifications Commission
that he deliberately misrepresented the hours and days his opponent worked.
Judge McMillan said in an interview that his statements were true and
that his legal problems were punishment by the courthouse
establishment for his defeating an incumbent. Still, on the eve of a
disciplinary trial this winter, he signed an agreement with the
commission that would have entailed a six-month suspension from
In June, however, the Florida Supreme Court rejected the agreement,
sending the case back for a full trial, which could result in Judge
McMillan's outright removal.
Because the trial had initially
been scheduled for a time when his lawyer could not appear, Judge
McMillan said during a recent
interview that he had been forced
into conceding false claims in the settlement, which read in
part, "Judge McMillan acknowledged that he made inaccurate and
misleading statements during his judicial campaign, including specifically
statements regarding the work ethic and sentencing practices of the
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