With the election a month away, the articles, panels and letters have started on Amendment A. While I don’t think the “activist judges” argument flies in South Dakota, there’s certainly arguments on both sides.
In the hopes of encouraging debate and discussion, I’m going to relate my views in two separate posts. A preface and disclaimer are in order, though. First, my conclusions were not reached lightly. I was on the Bar Commission when this idea was proposed two years ago and thought this would be a change for the worse. After studying and thinking about it, however, I came to the opposite conclusion. Second, the opinions expressed here are my own. I do not speak for or represent any other person or organization.
Currently, our circuit court (trial level) judges face a nonpolitical election every eight years. Amendment A would eliminate those elections. Instead, judges would be appointed by the governor from nominees selected by the Judicial Qualifications Commission. They would then be subject to a retention election on a nonpolitical ballot three years after appointment and every eight years thereafter by the voters in the circuit in which they sit. (Supreme Court justices are currently appointed and Amendment A would subject them to statewide retention elections every 8 years.) A retention election is simply a yes or no vote on whether a particular judge should keep his or her job. If he or she loses, the governor appoints a new judge.
Many are concerned that the public loses the right to vote or choose judges. While true on its face, reality may be somewhat different.
The public retains the right to vote, although it is in retention elections. If there are “activist” or “bad” judges, the public has the opportunity and power to “throw the rascal out.” (This is in addition to the process established by the state constitution to remove a judge.) Moreover, it is relatively rare anyone runs against an incumbent judge. In fact, a study published recently in the South Dakota Law Review shows that since 1982 there have been so few contested judicial elections that South Dakotans have actually voted for less than 20 percent of their circuit court judges. (It doesn’t appear the article is available on-line at this time other than through Lexis or Westlaw, which are subscription services.)
The drive for Amendment A came in large part from court decisions. For years, the Code of Judicial Conduct was used to maintain “decorum” in judicial elections by restricting what a sitting judge or candidate could say. In fact, one South Dakota attorney was suspended from the practice of law because of his actions during a 1992 circuit court campaign. The judicial code also prohibited judges from personally soliciting or accepting campaign contributions. Instead, any donations were solicited by and made to committees and the judicial candidate was not supposed to know who contributed.
In 2002, however, the US Supreme Court decided some of those restrictions violated the First Amendment. Other federal courts followed suit. Today, spending on judicial elections is at record levels. There is growing concern that judicial elections will stoop to the level of other political campaigns. (If you’d like to see a sampling, the Brennan Center for Justice has a collection of storyboards for this year’s judicial campaign ads.) This, combined with judges being able to directly solicit and accept campaign donations, has raised concern that corporations or other organizations with war chests will “buy” a judgeship.
Although I think these arguments have some validity, money and advertising weren’t deciding factors for me. It is always possible we may see nasty and expensive retention elections. What changed my mind was the conclusion that it is unlikely direct judicial elections produce the most qualified judges. That will be covered in Part II.