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____________________________________________________Does Higher Judicial Salaries Attract Better Candidates?
The Courts: States Rein In Truth-Bending by Candidates for JudgeshipsNYTimes.com
August 23, 2000
By William Glaberson
For 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 to
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 integrity.
Justice Leah J. Sears of the Georgia Supreme Court, who won
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.
"The judicial conduct commissions in every state are more vigilant
about these 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.
The 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 electric-chair-is-silly accusation.
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 deceptive."
The election was won by the incumbent, Leah J. Sears, and Mr.
Weaver filed suit against the monitoring body, maintaining that its members had intentionally ruined his chances.
But 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 them.
"He could pretty much say anything," Justice Sears said of Mr.
Weaver, "and I could not answer. As a judge, I am stuck."
Mr. Weaver denied in an interview that he had been trying to trick voters.
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 legislative policy.
But the main purpose of his suit, he said, is to establish that
aggressive advertising like his is as much fair game in judicial
politics as in campaigns for other offices.
"We can't expect that voters are so stupid," he said, "that they
need the government's help to decide what is true or false political speech."
About a dozen recent cases around the country suggest that in
many judicial races, few inhibitions remain.
A Michigan 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 to
"re-elect" him. But as a disciplinary panel noted, he had never held a seat on the court for which he was campaigning.
Such cases 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 incumbent judge."
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