Judging the Judges:
Should We Elect or Appoint Nevada Judges?

Justice & Democracy Forum Series
UNLV Center for Democratic Culture
William S. Boyd School of Law
Tuesday, December 10, 2002*

Evaluating Judicial Talent:
Surveying, Ranking, and Promoting Judges

Session 1. 10:00 - 12:30 a.m.


Introduction

DMITRI SHALIN: Welcome to the Justice & Democracy Forum Series, the conference on "Judging the Judges: Should We Elect or Appoint Nevada Judges?" My name is Dmitri Shalin. I am director of the UNLV Center for Democratic Culture which is sponsoring this public forum, along with the William S. Boyd School of Law. Carol Harter, President of the University of Nevada Las Vegas could not join us today. She asked me to share with you this word of welcome:

I am pleased to welcome you to the University of Nevada, Las Vegas, and the William Boyd School of Law for the Judging Judges Conference. We are delighted to host the inaugural conference here. I applaud the efforts of the UNLV Center for Democratic Culture and the Conference specifically, to address the important nonpartisan issues of accountability, evaluation, and election of our judicial officials. UNLV and the Center for Democratic Culture are dedicated to promoting civic education and discussion through not only research and scholarly exchange, but through community based programs like this conference. On behalf of the entire UNLV community, we hope you enjoy the Judging the Judges Conference, and your time on our campus.

Now I would like to recognize James Frey, Dean of the College of Liberal Arts.

JAMES FREY: Thank you, Dmitri and welcome to all of you as participants in this inaugural event. You're actually also participating in one of the first events that's being sponsored by the newest one of the newest -- centers on campus, the Center for Democratic Culture. Approved by the regents here in August, and under the leadership of Dmitri, the center is off and running with this conference and has several coming programs planned. It's only fitting that the college of Liberal Arts and the Center for Democratic Culture would bring up issues of communication, intellectual discussions, and perhaps stir up some controversy. Certainly we're all interested in civic education and civic responsibility, the goals consistent with the agenda of the College of Liberal Arts, where the Center is housed, as well as the goals of the University. So let me welcome you again. I hope this is the first of many programs that you will be attending and participating in. I know you'll enjoy it. We have an outstanding group of participants and panelists, and it will be -- it will be a wonderful opportunity for an exchange and discussion. So once again, welcome to UNLV, to the Boyd School of Law, and to the Conference. Thank you.

DMITRI SHALIN: I am a ready to turn the floor over to Jeffrey Stempel, who moderates our first panel. But before I do so, let me briefly touch upon the idea behind the Justice & Democracy forum series and the mission of the Center for Democratic Culture. The forum and the center are inspired by the notion that the process of democracy is as important as its outcome. As James Madison and John Dewey pointed out, when the process is unseemly, it matters little who wins. The results are likely to be flawed, the scars will be slow to heal. When the process is fair, it does not matter much who loses, because the democratic process itself will have a heeling effect. The Justice & Democracy Forum is a modest attempt to aid this heeling process, to keep the dialogue going, to make sure we agree to disagree. The forum offers a nonpartisan setting for exchanging partisan views. It gives a fair hearing to all parties involved and expands the room for the honest difference of opinion. If you disagree with me, it does not mean that something is terribly wrong with you, and if I am not swayed by your argument, it is not necessarily because I am a moral midget or an intellectual nincompoop.

Our inaugural forum is dedicated to the controversy surrounding judicial elections and judicial evaluations. The first panel will focus in particular on the survey of Nevada judges, although some presentations also address the recent campaign for judicial offices. The second panel deals primarily with judicial elections. Please watch for our upcoming forums. The next one is on a contentious issue of tort reform, and it is set for April 25, 2003. You might want to mark your calendar. The one after that is on the "Demeanor of Democracy: Civility in Public Discourse."

With this, I turn the floor over to Professor Jeffrey Stempel, a distinguished member of the UNLV community, who will introduce an illustrious set of speakers at our first panel.

JEFFREY STEMPEL: Thanks, Dmitri. Let me briefly introduce our panelists before beginning with our first formal speaker. First, we have the Honorable Philip Pro, judge of the United States District Court for the District of Nevada. Judge Pro is a graduate of Golden Gate University Law School. He became a U.S. Magistrate Judge at a very young age and cut his teeth on one of the more complex cases of the modern era in Las Vegas, the MGM Fire case. His work there was so impressive that he came to the attention of the important decision makers that select federal judges and has now been a District Judge since 1987, more than 15 years. He's been a wonderful friend of the law school and the CDC. Judge Philip Pro is speaking on judicial accountability and independence from his perspective.

Judicial Accountability and Independence: A Federal Judge's Perspective
Philip S. Pro

PHILIP PRO: One of the advantages of going first is you don't have to respond to what everybody else has to say. One of the disadvantages is you don't have an opportunity to hear what others have to say and to provide any kind of commentary or questions. But I think given my role here today it's really appropriate, and of all the people involved in today's presentations, I'm probably the person least qualified to address many of the issues that are going to be considered by the panelists and you all today.

The subject of my presentation is Judicial Accountability and Independence: a Federal Judge's Perspective. And this topic affords me the opportunity as well as, to a degree, the responsibility, to provide a frame of reference or a backdrop, if you will, for the larger theme of today's forum. Now at the outset, I should confess that as I approach today's topic, I come from a perspective which is no doubt somewhat different from that of the other panelists you will be hearing today. I am certainly no expert on judicial elections or selection processes in the state court system in Nevada or anywhere else. I've served as a federal judge for over 22 years. Jeff mentioned my role as a magistrate judge from 1980 forward, and in 1987, I received an appointment from President Reagan and was confirmed by the Senate for a lifetime appointment on good behavior under Article III of the Constitution.

So unlike some of the today's panelists you'll hear from, I've never stood for popular election for a judicial office, and I don't have the personal insights that many of our panelists may have regarding the merits and the demerits of that particular process from a perspective of one who has been there. I've never had important responsibility for developing or conducting a fair or valid survey of judges. I've never carried the responsibility for fairly reporting on candidates for a judicial office, and I certainly have never attempted a scholarly analysis on the subject, although I did publish one article on judicial independence in February 1999 edition of the Nevada Lawyer. That's about as close as I've gotten to that particular scholarly approach.

However, like many of you, I have read surveys and reports that judicial elections in the 39 states that permit them are very costly and often acrimonious. I've read of the New York University's Brennan Center for Justice Study of the state Supreme Court elections which occurred in 2000 in 33 states which found that judicial candidates raised campaign contributions of 45.6 million dollars. I've read reports of the recent American Bar Association which indicate that the majority of Americans favor election of judges, but that 80 percent also favor public financing in judicial elections.

I've also read countless studies, including the October 2002 Harris Interactive Poll, reported in this month's Federal Lawyer Magazine, which indicates that the American public does not want it's judges to be too political, but at the same time wants their candidates for judicial office to announce their political views. And of course, like many of you, I've also read the Supreme Court's recent opinion in Republican Party of Minnesota v. White, which held that placing limits on the ability of judicial candidates to announce their views on disputed legal and political issues violates the First Amendment. Thus, although I've read a lot of material on the subject of judicial elections, and like every other citizen in this state have observed campaigns for judicial office, I no doubt have less firsthand experience than most of our other panelists here today to merit the expression of a view on the pluses or minuses, the benefits or disabilities of the various alternative methods of selecting or electing state judges.

I would therefore like to frame the discussion that will follow this morning with some thoughts relating to a subject I do have percipient firsthand knowledge of -- the independence and accountability of those who hold federal judicial offices. I will leave it to the panelists who follow, and, of course, to you to consider whether and how these concepts, as they apply within the federal judiciary, inform the broader theme of today's forum concerning the selection or election and evaluation of state judges in Nevada.

Now the concept of judicial or decisional, as I prefer to call it and many writers on the subject do, decisional independence is hardly new. One of the fundamental purposes of our Constitution was to circumscribe the scope of legislative and executive authority. But an independent judiciary was seen as one important vehicle to enforce those Constitutional limits.

Article III, Section One of the Constitution provides that "judges shall hold their office during good behavior." The entire point of the good behavior tenure was to eliminate removal from the bench on the basis of decisions which were objectionable to the political majority or to the legislative and executive branches. We have only to look at the Federalist Papers to see that lifetime tenure for federal judges was the subject of considerable focus during the ratification of the Constitution. The Federalist, Numbers 51 and 78, stress that permanent judicial tenure was essential to destroy all sense of dependence on the Legislative and Executive branches in making judicial decisions, and to ensure that federal judges would protect the Constitution against inappropriate political encroachments.

Judicial independence must, therefore, be viewed, not as an end in itself, but as a means to promote impartial decision making, and to preserve the Constitution against encroachments from the Executive and Legislative branches and from the popular political will of the majority at any given moment in time. Once judicial independence is understood as a means to these ends, it becomes apparent that independence also requires counter balance of accountability, otherwise an unaccountable judge would be free to disregard the goals that judicial independence is supposed to serve.

Recognizing that judicial independence and judicial accountability are complimentary concepts or allied concepts, the Constitution itself includes a number of provisions that make the judiciary accountable to the Legislative and Executive branches and hence to the electorate. Congress of course has the power, through the impeachment process, to remove judges it finds to have violated the good behavior standards articulated in Article Three. Ironically, and as I expect many of you in this room know, I came to the office I hold now in 1987 after my predecessor was impeached and removed by Congress from office. Yet we have, since the impeachment trial of Samuel Chase in 1805, known that impeachment for judicial decision would not be tolerated under our Constitutional scheme.

Working jointly, Congress and the Executive have the authority to regulate the size, the location and the jurisdiction of our federal courts. Congress and the Executive together wield the power of the purse and control the budgets available to the judiciary to perform their responsibilities. Finally, and notwithstanding recent events which cause some to question their political capacity to do so expeditiously, the President and the Senate work together to appoint and confirm federal judges under Article Three of the Constitution. Beyond this there are a myriad of rules relating to judicial ethical standards and misconduct which operate within the federal judiciary itself to address and sanction inappropriate extra judicial conduct of federal judges.

However, what the Legislative and Executive branches of Government and thus the political majority do not have the power to do within the federal judiciary, at least not directly, is to dictate or to influence the decisions by a judge by means of real or imagined threats of removal from office or some other adverse sanction such as diminution of compensation. Now I don't suggest for a moment that the judicial opinions, rulings of any judge or panel of judges in the federal system should be immune from criticism or debate by the public, the press, the Legislature, or members of the legal profession. Reasoned debate regarding the judicial decisions is often helpful and no doubt essential in a free society, and judges are not insulated or not so insulated as to be unaware of the widespread dissatisfaction with judicial decisions they might make. Indeed, in a great many cases, the decisions of a judge may lead to legislative actions which address or cure the effects of an unpopular decision of a court or group of courts.

Do judges make bad decisions? Of course we do. But not all the time. Hopefully those in this room would agree with that. At least not all of us all the time. Maybe some of us all the time. We are, as human beings, sometimes given to error in our judicial decisions, naturally, and hopefully these are errors which are correctable on appeal. And we as judges are also cognizant of public dissatisfaction with some rulings we make through either letters we receive or press accounts or word of mouth. We're not literally an ivory tower immune to what is said about things that we may issue in the form of opinions.

But imagine for a moment a situation in which a judge, a sitting judge, actually faces the risk of losing his or her judicial office because of an unpopular decision, even though in the view of that judge, the contentious view of that judge, that decision is mandated by the law and the facts of the particular case. Should the prospect that a judge in such a situation might compromise their judgment in order to remain in office, not cause all of us some concern. Would such a scenario not raise a legitimate concern about the ability of the judiciary operating under such conditions to fulfill the important and independent role originally intended under our Constitutional scheme of government?

I suggest that once judges have compromised their oath of office by refusing to enforce the law as they understand it to be in order to remain in office, both the judge and the public confidence in the courts have been irreparably diminished. In short, while criticism is not an encroachment on the independence of the federal judiciary, the threat of removal from office or some other sanction for an unpopular decision, clearly would be.

Now I must acknowledge that it's easier to focus on judicial independence and accountability issues as they relate to the federal judiciary than to address the same kinds of issues with regard to the far more complex and varied state systems throughout the country. I don't think you can simply lay the federal judicial system over each state as a template by which to evaluate the conditions of the judicial systems within each state for the very simple reason that the state systems are different. It remains for the citizens of each state to define what it is that they want from their courts and then to determine how best to achieve those goals.

In preparation for today's forum, I came across a recent collection of essays edited by Steven Burbank and Barry Freedman, entitled Judicial Independence at the Crossroads. This particular gathering of interdisciplinary studies on judicial independence notes the wealth of different approaches to judicial selection and retention employed in the various states and discourages the temptation to bless one as correct thereby condemning all others. The various authors note that within the American judicial system, a variety of factors affect decisional independence and judicial accountability. They note that, although the judicial selection of retention process employed in the various states is important, is an important part of the equation, we should take a broader look at what it is expected from our various state court systems and at what motivates and constrains the judges that serve.

In conclusion when we talk about judicial independence and judicial accountability of judges in Nevada, I suggest we must begin by asking ourselves precisely what it is that we want our judges to be independent of, and what we want them to be accountable for. Once we answer those questions and define our goals, we can best determine how to advance the goals through the methods of selection, appointment, election, or retention of those state judges. In that context we can more meaningfully assess whether judicial election reform is warranted. We can better assess whether a shift to public financing of judicial elections is desirable, whether judicial terms of office should be extended as in the case of some states to say 10 or 12 years, rather than 4 or 6 years. We can also address whether public judicial surveys offer the best method of informing the voting public of the qualifications of a particular candidate for judicial office, or whether we should shift away from contested elections to an alternate method of selection and retention of state judges.

These and other questions to be addressed by today's panelists are worthy of serious study because in the final analysis, our state courts, like every other part of our government, is really what we make of it.

AUDIENCE MEMBER: Judge, I realize that this is taking you off of the remarks that you just made but since later on in the day we're examining the difference between election and appointment as a process for selection of judges, could you go back to 1987 and relate your experience when you were nominated from that moment through the process, and can you offer anything from that experience that might be implementable into the state system?

JUDGE PRO: Well, certainly the appointment process that federal judges go through has evolved over the years, but it's always perhaps been fraught with a potentiality for some contention. It's a process in which when you are nominated by the President and awaiting the Senate confirmation process, you go through a series of background checks with the Federal Bureau of Investigation, Internal Revenue Service, in those days -- the American Bar -- well, still, the American Bar Association, and then you have your confirmation hearing before the Senate, where you are probed on matters in your background, which in the view of the Senate Judiciary Committee would test upon your demeanor, your balance, your decision making ability to a degree, and this would vary from time to time and environment to environment, I think different philosophies.

In the case of a sitting judge such as myself, I'd been a magistrate judge for six and a half years, so I had a track record, if you will, of decisions that I had authored that could be scrutinized pretty clearly, and people could get an idea as to whether I had two heads or one, and how I might perform as a U.S. District judge. So it certainly was a rigorous process, it was, following Judge Claiborne, as I did, that allowed for particular focus because of the circumstances of his departure from office. And it became the subject of discussion during my confirmation hearing, because it was the first time in 50 years somebody had kind of sat in that position.

But I also went through before the confirmation hearings on Robert Bork for the Supreme Court of the United States which, in the view of many, kind of altered the way those confirmation hearings were conducted as well. So I don't know that it really informs the situation as to election. It's quite a bit different than standing for election, there's no question about it, but those were my experiences.

AUDIENCE MEMBER: Judge Pro, I'm not sure how this will impact the discussion today, but it's certainly topical. You mentioned that the Congress's control of the purse strings has an impact on the impact of the judiciary.

JUDGE PRO: Yes, they have no budget right now. And I'm a new chief judge, and I got handed the gavel by Howard McKibbon last month, and he said, "Congratulations, we have no budget," so --

AUDIENCE MEMBER: But also, the topic of salaries that our federal judges are being paid now and how they have actually eroded over the years, what impact does that have, if any, on the independence of the judiciary?

JUDGE PRO: Well, I think -- I would hesitate to say that it has. I don't think I'd characterize what impact it has had on the independence, because it does not affect the decisional independence of the judiciary. What we've not received and what we sometimes don't receive or what they call COLA's or cost of living adjustments that many people get. There was an ethics reform act of 1989 that theoretically was going to build that into the law, but it requires an affirmative vote by Congress to waive a thing called Section 140, and Congress is kind of reluctant sometimes to do that. Though oddly enough, this year they gave themselves a COLA, and did not give it to senior level Executive branch employees or federal judges. I think that may be addressed early in the next Congress. I think what happens in terms of salaries -- nobody's going to cry for a federal judge that makes roughly what a Senator or Congressman makes, 150,000 a year, and is appointed for life.

At the same time many people who come to the federal bench take substantial cuts in pay to take that job. Others leave the bench because they have several children or grandchildren to put through college and cannot afford to stay, and [because they can] make far more in the private sector, and still others are dissuaded from considering or seeking federal judicial appointments because of the salary situation. At the end of the day that affects a certain segment.

In truth, I think most of us -- speaking for myself -- most of my career has been focused on public service. I do that because that's what I've wanted to do. I was never motivated to seek the most pay, if I was, I wouldn't be doing what I'm doing. And I think that that's true of, frankly, of a great many judges, not only federally but state judges. I don't know anybody in public service who opts for that. They make those choices. But it does have an adverse impact on attracting people, on retaining people, and it can be a little frustrating.

AUDIENCE MEMBER: Besides your salary, what other perks do you get like benefit package, health care, retirement? Is yours considered the same retirement as the people on Capitol Hill?

JUDGE PRO: No. We don't get perks in terms of special insurance. We pay for our health insurance, our life insurance, just like any other employee of the federal government does, but under Article Three, the lifetime appointment means that, in essence, you know, like the Pope, I sit in that chair until I die. I hold my job until I die. Now [if] I'm drooling and no longer able to perform, I literally step out of my court, I may not be a judge. I may take what's called senior status, reduce my caseload significantly. We have two senior judges here in Nevada right now, and soon we'll have a third, and they have a reduced caseload -- Judge George and Judge Leen, and soon Judge Mahan.

Or you can fully retire if you want to. And your salary continues for the rest of your life. So that is the carrot on the stick, if you will. That says, well, this is a pretty good retirement package. So you don't have to, then, concern yourself with, you know, how your 401K is doing or something else. So in that sense that's a perk. As to other perks, there aren't many because I mentioned the Code of Judicial Conduct that we have. I don't -- I don't go to hotels and take free meals. I can't do that. I don't receive tickets to fights or concerts or something. I can't do that because the Code of Conduct for Judges really -- I won't say it literally prohibits it, but it's certainly very strongly frowned upon. And so there are what people might imagine as perks but really don't exist for members of judiciary.

AUDIENCE MEMBER: Is there an age requirement, minimum age requirement to take retirement?

JUDGE PRO: Yes. You have to meet what's called a Rule of 80. You have to be at least 65 years of age. I'm 55 right now. I have to go 10 more years. But your number of years in service plus your age must total 80. I'm technically eligible at 59. I will have served enough years as an Article III judge, but I still can't take senior status until I reach 65. So you have to go until you're 65. If I retire at age 64, 364 days, my retirement is zero. I don't get anything. So every judge has to at least unless they become disabled and become eligible for disability retirement.

AUDIENCE MEMBER: Is there some position in your mind that the same system in place for District appointed judges should be the same for Nevada state judges? The reason we ask that is judicial accountability and independence. There's such a completely different handling of a judge in your position as there is for the rest of the judges on the panel. A lot of us that are working towards the issue of judicial accountability, our greatest concern is [that] judges judge judges. It's the old saying the fox guarding the hen house. A lot of us have real serious, grave concerns. How do you tie into your experiences, as a federal appointee, with the state judges who are actually supposed to be the judicial counsel and supposed to be responsive to actual complaints? We see a big disparity here, very little in the way of accountability.

JUDGE PRO: Well, I think you can well imagine coming from where I sit with perspective that I come from, there's a natural reluctance I don't want to sit here and attempt to offer opinions or pontificate about, gee, this is what we do in the federal system. Everyone should do this. I think my comments indicate that I'm not saying that at all. I don't think you can take necessarily the way our Constitutional federal system has operated for a long time, since 1789, and you can just lay it over the state and say, "Ah, if you only do this, your difficulties would be solved." I'm not suggesting that in the least. I think you, and I think the people in this room, and I think the other people on this panel, really have the responsibility as citizens of the state for defining what it is you want your state judges to be accountable for or independent of and as you define that, as the state of Nevada defines that through it's Constitution, the legislature, and if the people make those determinations, that you are in a position to decide what can best achieve those particular goals.

It may be that an appointment process is desirable. It may be that -- what's called -- and I hear about this from somebody -- modified Missouri plan will be the kind of approach where there are retention elections. Some states trying to assuage some of the concerns about financing, I know, have looked at public financing of campaigns. Now, there are probably legal issues about limits that could be put on that. Other states have extended the time that judges serve in office instead of four to six years, they get ten or twelve years to insulate the judges from those concerns. If the point of view is, as it may be, just the opposite, I want ever one of those judges to be politically responsive to the electorate. Then I think you take an entirely different approach and you probably would want elections, you know, ever two years or or more frequently.

Somebody wins and somebody loses in every suit, and people can -- particularly when they've lost a case -- be very cynical about it, and I understand that. And you know, I make decisions everyday that somebody wins and somebody loses. I try to get it right, hope that I'm right. I know. I have no illusions I'm always correct. I know that can't be true and that there is an appellate process to try and correct those mistakes or a legislative fix that can occur to correct those mistakes. But I don't know that there's an easy answer to the concern that you have, other than to some degree, yeah, we have it good, however you might think.

AUDIENCE MEMBER: Can you think of a couple of cases you've had cases that have been political hot potatoes -- you've had some that have angered some people or groups of people -- can you share with us a couple of specific cases where, had you been a state judge, there might have been organized opposition to you afterwards.

JEFFREY STEMPEL: Can I just chime in for a second too. Judge Pro is perhaps a little modest. He recently issued a ruling striking down the Nevada Supreme Court's ruling prohibiting tradenames for lawyers. And that's an issue where he has, if you will, ruled against the legal establishment.

Our next speaker is Judge-Elect Jackie Glass, who will give a report on judicial elections "from the trenches." And quite a trench it was for her this past fall as she was the victor in what most observers regard as the most fiercely contested judicial election of last Fall. She defeated a sitting Judge (the Honorable Jeffrey Sobel) in a campaign that involved substantial advertising, with a more hard-hitting, adversarial tone than that found in most judicial campaigns.

Jackie Glass is a former news reporter, a criminal defense [lawyer working] as a partner in the Law firm of Wolfson and Glass. She will take her seat on the Clark County Eighth Judicial District bench in January 2003.


Running for Judicial Office: A Report from the Trenches
Jackie Glass

JACKIE GLASS: Thank you. I'm very happy to be here. I think it's a little different doing this now than it was before. I'm -- I was pleased obviously with the way the election came out, and I can tell you a little bit about how that happened. When I first got the inkling, I guess not last year but the year before, that I wanted to run, I told my husband, who's my law partner, Steve Wolfson, and he said, "Okay, let's talk about it." So we talked about it and at that point I just decided that I was going to run. And we started asking around about who handles political campaigns for judges.

I received recommendations made to me, and, I don't know, some of you in the media know who I had handling my campaign. It was Gary Gray of Gray and Associates. Gary Gray and Mark Benoit handled my campaign. And if you're going to run for office, and you're going to run for, as far as I'm concerned, a seat as a judge, one of the smartest things you can do is obtain a good political consultant to help guide you. I've been a lawyer for 18 years. Before that, I was in the media. And even though I was in the media, it really did help to have someone who had the expertise in knowing how to handle a campaign, to advise you.

So the first thing that we did, or I did, was obtain a good consultant. And as it progressed, I had somebody along the way tell me, "Whatever Gary tells you, you listen to." And actually in looking back at it, they were right. What that person did for me, what they did for me, was develop a theme for the campaign, prepare me for dealing with speeches and interviews and the press, advised me who to contact. And you -- this is a very large county, Clark County is huge -- and to try to take on a countywide race [when you] never have been in it before, is kind of a daunting task. You can't be everywhere. You just can't be physically everywhere. I tried. But you can't be everywhere. So based on their advice, I started making contacts with other places. I was very fortunate in my situation. I was able to campaign quite a bit during the last year. I actually had what I considered to be an anniversary of my first public event, which was November 2001. I went to a mayor's prayer breakfast. And I remember that may be the first event that I went out and started meeting people. That was in November. We aren't allowed to raise money until 240 days prior to the primary, so that was, I believe, January 7, 2001. So I started going places.

I'll give you examples of some of the places that I went to. I went to the chamber of commerce, the Latin chamber, the urban chamber, the Asian chamber, and I went month after month after month until those people got to know who I was. I went through the standards and policies every -- the first Wednesday of every month, 7:00 in the morning. I spent a lot of time with -- there's a lot of different groups that are grass roots political groups. I went to their functions, and I met people. And I shook the same hands over and over and over again until these people got to know me.

I went to meet the candidate functions. I went to parades. I went everywhere that I could find a group. Now sometimes there were more of us candidates than there were people to talk to, but I kept telling myself that for every one person I might reach out to, they'll go back and tell somebody, and maybe that person will tell somebody, and I really, truly believe that a lot of all that grass roots that I did paid off.

There was a time during the race when it came to be primary time, I didn't have a primary because there was only two of us in the race, and I got phone calls from people asking me why wasn't I on the ballot, and I'd go and get my hair done and my hairdresser would say, half of my clients called asking why weren't you on that ballot. Where are you? People are worried. Why aren't you there? And I was surprised at that point that people were actually looking for me and wondering where I was. And I thought this is a good thing for them to look for me on the November ballot.

When I went out and met people, people were so happy to actually meet the candidate, particularly the judge candidates. The feedback I got was -- there are so many people running for judge, we don't know the people who are running for judge, so we appreciate you coming so that we can see who you are and try to get to know something about you. I heard that over and over and over again on the campaign. Going out to meet grass roots, I loved it.

As a lawyer, and I married a lawyer, I was insulated to a degree from much of the world. You don't realize how insulated you are until you go out and do something like this, and you start meeting all the people out in the community who are actually doing very positive things. Trying to make this community a better place, and that was really a wonderful benefit of the experience.

One of the things that the judges had to do in this election, and I suspect it may change based on recent court decisions, the White case, which is going to change I think some of the way the judges can talk on issues because up to this point the judicial cannons prevent us from talking about issues. So basically when you're dealing with judge candidates, you're -- you're kind of getting who we are, and we deal with issues such as work ethic and perhaps past feeling on cases, and in some elections there were ethical discussions. So it's hard to put -- there's not a lot to put out there as far as issues.

So the endorsements that the judge candidates receive turn out to be very important because as a candidate, they kind of speak for you as to what the various people in the community believe. So I was also very fortunate during this election cycle that I got a substantial number of endorsements. I filled out many forms, I went to many interviews, and I was well received. And I prepared for those meetings, and I worked hard at filling out my forms and making sure that they got all the information that they needed. And that resulted in a lot of support out there, which I also think helped in my success.

Let's talk about the money. We have to. The only way to get elected -- well, the only way I believe I could have gotten elected is by getting my message out. And that was grass roots, and that was my media campaign, and I know there are a lot of people who do not believe in judges having to raise money. The people who give money to judge races are attorneys, your families, and your friends. That's it. Now raising money is not fun. I didn't enjoy that, but it was a necessary part of the campaign because without the money, I couldn't fund my media campaign.

One frequent concern about elected judges is whether I can still be fair because lawyer X gave me money and lawyer Y didn't give me money. I consider myself to be an honorable person, an honest person, and have integrity. And I believe in my heart that I can sit in a courtroom and make decisions, and I'm not going to have a list [telling me] lawyer A gave me money and lawyer B gave me money. You base your decisions on fact and the evidence and the law. And that's exactly what I plan to do.

Impact. Impact on my family and me. It was exhausting. There were some days when I did something in the morning, something at lunch, and two or three events after 5:00. I would come home and sit on my couch, and my kids would try to talk to me and I couldn't talk to them. It was just exhausting. Physically and mentally. And I got to tell you, I don't think my feet will ever be the same again. I think I ruined my feet for good. Because you go to these campaign functions or cocktail parties and dinners and you stand on your feet and you walk around and you don't realize what you're doing to yourself until you get done and you say, Oh my gosh, I'll never walk again.

My husband. I could not have done what I did without him, [without] the support of my husband. He was there for me, and he went places with me. He shook people's hands. When I needed him to be there with the kids -- I have an 11-year-old and a 15-year-old daughter. I have two daughters, when I needed him to pick them up and take them places, he was there. And I could not have gotten through this the way I did without his help and support. The other thing that he was there for is as a law partner. I was able to refer any cases that came in for me to him and my associate. And that took a lot of the burden off me. I was -- I was probably one of the few people -- I still came in the office every single day, and I stayed there from early in the morning until late at night, and I still had cases and still had things that I did follow up on, but I did not take any new cases towards the last half of the campaign. So I was very fortunate to be able to do that, and that gave me a lot of time to go out and campaign.

My children. They were troopers too. They did say to me that if they don't have to do another parade for a while, they'd be extremely grateful for that. They went to the candidate functions. My 15 year old drove out to the Moapa Valley with me. She'd never been out there before. She said, "Where do they shop, mom?" And she was asking one of the girls who lived there about living in a rural community, what it was like, and she met a lot of people. She stood right by me and smiled and shook hands and campaigned, and this was a great experience for her. My kids went to a lot of candidate functions.

Voters saw that I was someone who had family, and I think that reflected positively on me. So I -- it really does help when you go through this experience to have the support of family, and I really think it does make a difference. And the word that will probably live forever in my family is "function." "Do you have another function to go to, mom? What function are you going to tonight?" We did a lot of functions together.

The media campaign was a necessary evil. Since I was running against an incumbent, and believe me all the way through, I heard people say you're running against an incumbent, you're running against an incumbent, how do you think you can do that? You know, it's going to be -- it's such a hard thing to run against an incumbent. Well, when I analyzed where I was going to run, I could have gone in an open seat. There were two -- there are 20 and 21 new seats. Department 7, Judge [Thomas] Gibbons vacated, and department 10, Judge [Jack] Lehman was retiring. We had weeks and weeks and weeks of discussion trying to decide where I was going to run and what would be best for me. I eventually determined to run for the Department 5 position. Despite what some people may have reported, there was no person issue that caused me to run in the department that I ran in.

I looked at the situation and decided to run where I could have had the most impact, and I would know what I was up against as opposed to running in an open seat where, as it turned out, in one department they had five people running and in another department there were four people running, so I wouldn't know my opposition. I wouldn't know what I was dealing with, until after they filed, and it would be --it would be a different situation. So when I decided to run in Department 5, I knew what was there, I knew what issues could be used and could be raised, and there was a great deal of contrast in our campaign, and I also think that serves people.

The media is incredibly -- and when I'm talking about media, I'm talking about my television campaign, and direct mail, and I think that this particular race because of the issues raised and because of the difference in folks that were running, I did get a lot, there was a lot of press out there about my race, when I don't think there normally is. And so I think that also was very helpful. You can't be everywhere in Clark County. You just can't. I didn't make it to Searchlight. I didn't make it to Laughlin. But I went a lot of other places. And so you got to do what you have to do. I did television as probably many of you know. And I did direct mail. And it really was difficult for me to accept the fact that direct mail works because I don't know about any of you, but when you get it in the mail, and you get so much of it, I -- you know, until this election when I'm reading everybody's direct mail, you usually get it and a lot of it goes in the trash.

But my consultant told me that's the only way to get your name into the hands of the voting public, because on television, even though television reaches a lot more people, how many of those people are actually going to vote? The target mail is directed at the voters. You got those lists from the election front, and it really helps. So I didn't use any radio at all. My campaign was basically a combination of grass roots -- intense grass roots -- TV, and direct mail. And that ends up resulting in a 51 to 39 percent victory on election day.

The issue regarding campaign funding, and I know that's going to be addressed later -- I know there's some talk about trying to have publicly funded elections, but I don't know in this day and age in our state [if] that's going to work based on the budget deficits that we have and whether the public would be amenable to having elections funded for judges. I don't think so. I suspect it's going to stay the way it is, at least for a little while. I hope Judge Pro was wrong and we don't see a move to shorter terms, with things like elections every two years. I need six years to recover.

AUDIENCE MEMBER: Due to the fact that you worked so hard during this campaign, and by the way, you're visiting all of these groups, I'd assume your opponent did the same thing. I'm sure he campaigned. In view of the experience you had during the election, do you think that judges should be elected or appointed?

JACKIE GLASS: I believe they should be elected. I don't think that I would have this opportunity to be a judge if the position were not open for election. I think that it's important that we have people who want to run for elected office, who want to be a judge, [and] to give them the opportunity to be able to run as opposed to trying to be appointed and then retained.

AUDIENCE MEMBER: You give all the credit to the medium of your message. What about the content?

JACKIE GLASS: The content -- well, the content went along with it. The content was that I first went out and said everywhere [what] I could say -- that I would be a full time hard working judge. That was my message. And I did not say a word about my opponent until the end, and then that message was he's not there. He's not coming to work, and these are some other issues regarding his rulings and his sentencing that you need to be aware of. So the message was there. I mean the message was important as well, but for most of the campaign I went out talking about me, and what I planned to do, and never once out in a speech or talk even acknowledged that there was somebody else that needed to be looked at. But in the end you certainly brought the message home with the content of what was in the mailers and on TV. Yes?

AUDIENCE MEMBER: I had a question about the endorsements. A lot of people when they go for endorsements, they go for the DA's office, the Defenders Office, the Police Department. Well, as a lawyer you say you disqualified yourself. As someone coming before you on the bench -- take a lawyer for a defendant from your firm --

JACKIE GLASS: Oh, I cannot have the person -- anybody -- who I've represented appear in front of me.

AUDIENCE MEMBER: But right now we have the former DA who is now in Department 17 taking over civil cases. He in essence is the lawyer for the LVMPD. So since he is technically he represents the Las Vegas Metropolitan Police Department, do you believe that there is technically bias that could come because of election through that. Saying that he would almost have to disqualify himself in every case.

JACKIE GLASS: There is a real move, and there has been for judges to be discouraged from recusing themselves because of conflict. They really the court administration and the Supreme Court and the court and the judges -- don't want to see people conflicting out of cases very easily. I don't think that just because David -- you're talking about David Wall, right?

AUDIENCE MEMBER: No. Stewart Bell.

JACKIE GLASS: Oh, Stew Bell, the DA, I'm sorry. Stew Bell as the DA now sitting as a civil judge I don't know that he'd have to conflict himself out. I think that's a question that's better served to ask Stew. Because I was in private practice, my former clients cannot appear in front of me. My husband and former law partner will not appear in front of me. My associate won't appear in front of me, and anybody who is a tenant in my law building is not coming in front of me because there's a relationship there, and they're on my list and they're not coming in front of me. That's fine. As far as whether Stew will have to recuse himself, it's whether when he sits and looks at people in front of him, whether he feels that he can't be unbiased and can't be fair, and I think he'll have to make those judgments on a case by case basis.

AUDIENCE MEMBER: Okay, and you don't believe that any endorsements by the Police Department. Things like that --

JACKIE GLASS: No, I mean, I was endorsed by all the major police departments, and if I had to recuse everybody, all the police officers, I wouldn't have much of a criminal calendar.

AUDIENCE MEMBER: Right. But if they were appointed instead of endorsed by you, these individuals might look better.

JACKIE GLASS: And in the appointment process, if people were vying for appointments, I still suspect that there is a sort of endorsement procedure and to get their voices heard and to have influence on whatever body is going to be making the appointment, so I think that there would be the same problem whether it was election or appointment, in the back.

AUDIENCE MEMBER: I agree with you as far as I think it's better for the most part that judges are elected but one of my biggest concerns is no judge ever runs on the platform that I'll protect the defendant's Constitutional rights. I think many times and in many ways judges are very reluctant to find the opportunity or go with defendants, whatever it might be, [and find them] not guilty for fear of being deemed the person that's soft on crime. I think that poses an extremely troubling situation for society at large because particularly in the Municipal Court, when all the trials are bench trials, I have -- my tendency is to believe that most judges are for the most part rubber stamp the case. How would you respond to that?

JACKIE GLASS: I've been a criminal defense attorney for the last 12 years, and I've actually had motions ruled in my favor. Down in Muni Court, I've actually won a number of trials. From your perspective, and I'm -- in Muni Court they handle misdemeanors, not that they're been important to the people who come -- who are charged with these misdemeanors, but it's not a court that's so high profile that there's somebody sitting there watching what the Municipal Court judges do all the time. I know what the issues are as far as what comes before us on those issues in protecting people's rights. I have to be able to do what's right and what's fair and what's just. That's what judges do. So I know that there's thinking that we have to be mindful of what is politically correct and it can't be that if you're so worried about somebody's going to say and the criticism you're going to come under because of your decision -- I've got to be able to live with my decisions. And I wouldn't be able to sleep at night if I made a decision that I made for political correctness as opposed to what's right for the person who's appearing in front of me.

AUDIENCE MEMBER: I'd like to follow up. You said that you wouldn't believe you'd have the same opportunities if this was an appointment process. Why?

JACKIE GLASS: Well, I wasn't politically active then. And I wasn't in the political process of knowing the people who make those decisions, and I've been here 24 years. I don't have any connections to anything. I'm just me. And so I think that the only way that I was going to ever become a judge was to run and be elected by the people as opposed to being appointed.

AUDIENCE MEMBER: There's been a lot in the news about campaign contributions, but how would you, as an elected judge, feel about an across the board cap on campaign spending? The reason I'm asking is we think there's a lot of voter apathy and specific situations in the state of Nevada to get the people out to the polls. The people who do show up -- some just pick the name they see the most, whether or not that person is qualified. How would you feel about having an actual cap per candidate on campaign spending? For example, $50,00 per candidate you can spend on advertising. How would you feel bout a cap on those funds?

JACKIE GLASS: If it was equal to everybody, I don't know that I would mind a cap. I still think that what made the difference in my race was the grass roots. In this election cycle, there were 21 District Court judges that were up at the same time, and then there were six Family Court judges that were up, so that's 27 judges that are all out there with their hands out saying I need a contribution, please help me.

JEFFREY STEMPEL: There is a bi-annual survey of the Bar of the judiciary that's conducted by the Las Vegas Review-Journal and the Clark County Bar Association. Our next speakers have been instrumental in that survey.


Ten Years of Surveying Nevada Judges: A Sociologist's Perspective
Donald Carns and Nancy Downey

DONALD CARNS: I'm here principally to introduce Nancy Downey. It's really her work. But I would like to tell you just a little bit about the history of this and how it came about. I actually -- I was a Journalism major for about a year-and-a-half back in undergraduate days, and I think I got a little ink in my blood. So when I came out here, I just sort of fell into it -- I had a background in survey research -- I kind of fell into a role at the Review-Journal. Initially through [Managing Editors] A.D. Hopkins and then Tom Mitchell, I met you, and I think even [Publisher] Sherm Frederick came down and blessed it at one point or another, but what I was asked to do was to design up a system whereby we could evaluate the judges in town by using lawyers' input.

I initially designed the evaluation form. We had various conversations about it. We got it down to a point where the RJ felt that, you know, it was appropriate, and I did too, and so the first couple of those biannual estimations or data collection routines took place. I, of course, faded out of it at that point and Nancy came in. Nancy's a professional survey research person, actually one of my students at UNLV, one of the best in fact. But I in no way take credit for her work. She has been providing for us data on a biannual basis of how lawyers look at judges from the point of view of a number of issues. And this has of course been published in the Review-Journal as well as it's available in a report form from Nancy's shop.

NANCY DOWNEY: As Dr. Carns mentioned, we started doing formal reports in 1994, and I wanted to tell you about some of the challenges that we face from a methodological standpoint. First of all, the survey instrument must be a blend of cost effectiveness regarding printing, mailing costs, data entry, efficiency and ease of completing the form to encourage high response rates. We sought a format that people would complete, that would not take very long, and that would also be clear and understandable.

We also had the challenge of increasing the level of trust in the process itself, particularly in the process of anonymity. And if you are not familiar with the questionnaire, I have copies up here that you may review. We ask the attorneys who receive these to sign an Affirmation Card showing that they are the ones that filled it out because obviously we have to safeguard against fraud to protect those who are being evaluated, and while at the same time asking the respondent to trust us to live up to our end of the bargain. So that when we receive the Affirmation Card that proves that individual is qualified to complete the ballot question that we sent out. We separate the names from the ballot, and then at no other time are we able to identify who made the comments and completed the responses on that, so that all of the data that we select just becomes numerically merged into the entire report.

The rules are stated in the instructions. After mailing, there is an honor system requiring the parties to be responsible and act with integrity and neutrality. Despite the instructions, there are unusable ballots. For example, in 2002, 2,986 were mailed. We received 713 back, but only 676 of those were eligible for inclusion.

[Here are] some of the problems that we encountered with the ballots that came in. Four percent were returned without the required affirmation. We did not tabulate those. About one percent was received after the designated closing date. And obviously when we have a deadline -- we have to report this, so the newspapers can have time to review it and come up with their stories. We had to have a cutoff point, and we also had to look at the overall percent of return and decide if this is representative of the population that we're sampling. The percent of return in the state is pretty consistent, between 21 percent and 27 percent. It fluctuates just a little bit from year to year. And those are just approximate. When I say that it's approximate, [it is] because the actual number that we send out compared to the number that we receive -- how we calculate that percent of return -- does not give the true picture of the number who might be eligible to complete the questionnaire to begin with. The response rates are actual rates of return, and do not reflect the true rates of response. It's difficult to determine the size of the eligible population of attorneys because of self-selection as to eligibility. Attorneys decide, once they read the rules, whether they are eligible. They also need to decide how much they appear before certain judges, how knowledgeable they feel about those judges and if they feel qualified to respond. So we have not been able to track or compare what the actual population size is that we're surveying. So there's a challenge that we could try to work on in the future to get more specific.

The way they return those questionnaires is interesting as well. Twenty five percent return them in the first three days. So we know that there is some interest, and there is a conscientious attempt not to procrastinate. To get these things in, but of course the rest of them, 75 percent of them, are returned within the first two weeks, but they trickle in over a period of four to five weeks. So we do like to allow enough time for them to have the time to return.

Another challenge is developing rating scales and ways of comparing each judge's score to the others. So an adequacy score was added, I believe, in the year 2000 study, that was a way to track the judge's overall performance on all questions, rather than having to compare each judge on each and every question that was asked. So the adequacy score is really the cumulative average rating. It's the sum of the "adequate" and "more than adequate" categories of responses divided by the total number of questions. So we get kind of an average score for the whole questionnaire.

We also calculate a retention score. The number of people that believe the judge should be retained versus the people that believe they should not be retained, and we put those in a hopefully user friendly kind of chart with the retention scores to compare judges year to year as well as between judges. So it's a good way to track someone's evaluation scores if they have been in office for a period of years. You can see if there's been an improvement or you can see if there's been a decline.

AUDIENCE MEMBER: Who pays for the surveys?

NANCY DOWNEY: I was contracted by the Las Vegas Review Journal and the Clark County Bar Association, in combination, so I'm not sure exactly what percent each of those pay into that. I consider both to be my clients.

AUDIENCE MEMBER: Have you ever considered asking the people that appear in the arenas themselves besides the lawyers, cause it's like -- it's a little bit of a fox watching the hen house going on when you ask the lawyers if you know a judge or rate one of their own. Have you ever considered the participants, people that have appeared before them?

NANCY DOWNEY: We haven't so far, but I would be happy to extend the scope of my research because it's something that we could do. It would be another challenge to include that and compare the data. It certainly is feasible, but whether or not the clients want to include that as part of the research process is up to them.

JOHN CURTAS: I have to disagree with the last questioner. I'm one of those chickens that watches the foxes. After biting my tongue for two years, I look forward to getting this thing, and I think both positively and negatively. I think this is one of the most critical and important things that's done in this county with regards to the legal system, and I applaud you for the work that you're doing. I am appalled when I talk to lawyers that throw them away or don't send them back. And I rail at them. So I'm doing my part to get that 25 percent up as much as I can. I do have one suggestion. We have at least three offices now that are making decisions that are very impactful. And they are appointed. They are not elected in the same way. They are appointed by the judges. And they are the Probate Commissioner, the Discovery Commissioner, and the Arbitration Commissioner. And I would very much like to see those offices included in your next and future surveys.

AUDIENCE MEMBER: I would just like to know, is it open to the public? Do you have the reports that people can go and request?

NANCY AKRIDGE: My reports were sent directly to the Clark County Bar Association. I retain all of the database files and the reports on disk, and I have been asked to count this for access at the County Center for Survey Research here at UNLV. That is in the process of being setup. In other words, researchers can actually get to see the database as well and perform further studies on this. In fact what I don't do in here, and which people have asked me to do later, is sometimes compare responses by gender, let's say, or compare responses by their -- the number of years that the attorney has been in Las Vegas. Those kind of things, we can always do cross tabulations to get some more information.

CAM FERENBACH: I just want to say, and I'll introduce myself I think in a minute, [that] I'm the President of the Clark County Bar Association this year. It's a volunteer job. I don't get paid to do it. In any event, we end up with a box full of those after it's over. We send each judge one, you know, but they're available for five dollars at our office (530 South Ninth Street, corner of Bonneville and Ninth in Downtown Las Vegas; 702-387-6011), as long as they last.

DONALD CARNS: Just chat on that. If an attorney were to submit a false affidavit, he's at risk of losing his law license. I can't think of a rational attorney who would do that just so that they could take a jab at somebody on the survey. I appreciate the point that it's fair to evaluate the trust and verify, but I think the risk would be so high that if even a lawyer were to attempt it to editorialize and submit an inaccurate affidavit -- I can't think of anybody who would do that.

NANCY DOWNEY: The main reason we validate those by Bar number is so that we don't get, let's say, 10, 20, 30 surveys with the same Bar number, because obviously we don't check signatures or anything like that, so -- but if we happen to get too many, you know, kind of ballot box stuffing, we would notice that.

AUDIENCE MEMBER: Has there been any sort of systematic follow up with, you know, segments or things like that or stratified sampling to try to get a picture of whether the respondents are different from the nonrespondents. For example, would it be possible that plaintiffs' lawyers respond in inordinate numbers, or that defense lawyers respond in inordinate numbers. And I'd be curious as to whether there's any relationship or whether anything can be done to make sure that it is a representational process?

NANCY DOWNEY: I did not compare those to see if they were representational, but we do have a table where we talk about the type of practice of the respondents. Some people elect not to answer that question. Sometimes we don't even know the gender. There might be some. In fact, there were 4.6 percent that did not tell us [whether] they were male or female and we have no way of knowing that.

AUDIENCE MEMBER: What if we reverse the process and have judges evaluate the attorneys?

CAM FERENBACH: I think Dick made the first comment that you do that everyday. When you go in and argue a case in front of a judge, you get some type of feedback pretty quickly. But I think the other thing is -- I mean, we do have the Martindale-Hubbell rating system which judges are participating in, that is, you know, an ongoing process. Of course that's acommercial enterprise, and is not foolproof, but [it] is helpful.

JEFFREY STEMPEL: Cam Ferenbach of the law firm of Lionel, Sawyer & Collins, the President of the Clark County Bar Association is already known to the audience. Joining Cam is Constance Akridge from Wadhams & Akridge. Connie is the president elect of the Clark County Bar as well as an active litigator.


Keeping Judges Accountable: An Attorney's Perspective
Cam Ferenbach and Constance Akridge

CAM FERENBACH: Let me just take a minute here and explain about the Clark County Bar Association because we have quite a cross section of people here. There is the State Bar Association, the State Bar of Nevada. That is the organization that administers the Bar Exam. If you're going to be an attorney in this state, you have to pass the Bar Exam and be licensed by the State Bar. You violate rules of ethics, you're subject to disciplinary procedures from the State Bar of Nevada. That's a completely separate entity from the Clark County Bar. In fact it's pretty much an arm of government. It answers to the Nevada Supreme Court. It answers to the Nevada Supreme Court. The Clark County Bar Association is strictly a voluntary organization of lawyers that frankly, I think -- if you go way back in our history, it was an excuse to have lunch, like a three martini lunch once a month, that's, it was kind of like a lodge really. A bunch of old boys that weren't even -- in fact they used to meet at an all-male club downtown. So our history may be a bit tarnished, but we have come a long way. We really have. And now we are very proud to say that we have more than 2,200 members in Clark County, the Clark County Bar Association. They pay dues as volunteers, they pay their dues, they support our programs. We have various volunteer programs in town.

You may have noticed that the Downey Research Center sent flyers out to 2,900 lawyers, not 2,200 lawyers, and the reason for that is that Downey Research sends the flyers out to every licensed Nevada lawyer in the County who has an address in the county and [which] happens to be their residence address in the county, because that's the way the State Bar organizes itself by residences, not office addresses. And the reason they do that is of course that some law firms have offices in various places and attorneys go back and forth, and because the State Bar
elects their representatives by where you live, they're organized by residence. Last year there were 2900 licensed Nevada lawyers of record with residence in Clark County. Each received a survey.

As to the issue of impact, I have practiced law for more than 20 years. So I was a lawyer in state court for 10 years when there was no survey, and I've been one for about 10 years now when there was, and I can tell you from a lawyer's point of view, there's a world of difference from my earlier life as a lawyer in court. During the first ten years, of course, I was new, judges didn't know me, and all that. They didn't really care much what I thought about how they were doing their jobs. They were the judge, I was the lawyer. Like it or lump it. If I needed to sit there for a half an hour before they come on the bench, well, that's too bad. You know, I'll just wait and bill my client for that, and you know, they're not going to read the briefs and just decide it based on how they feel in the morning. I was not going to stand up and argue with the judge, say "Hey, you're not doing your job right." I mean, I'm going to resemble Rumpole of the Bailey, with a certain amount of groveling.

Who of us knows really how many voters read the RJ pole and how they're influenced by it, but you know what? The judges are concerned about that. And it made a big difference in the way they treated lawyers in court. Now whether that's good or bad for society, I don't know. But I can tell you I'm a big supporter of this program, it's made my life better, and I do believe it has enhanced the operation of the judicial system and maybe even [increased] access to justice issues. The Survey is bi-annual. It presents a significant burden on the County Bar to run this program, but again, I think it's a very good one. During the Fall 2002 election I would conservatively estimate that among my friends and acquaintances in town, I probably got 40 calls asking me who should I vote for, for judge. You know, it makes sense. Lay persons just do not know who the judges are. The judges appreciate the impact of the Survey and have become accountable.

Independence and accountability present twin issues in tension. What things are important to accountability? What things are important for independence? We've designed the survey to try to make judges more accountable but to be fair as well. Occasionally one hears rumors of concerted efforts to respond to the Survey in a way that will hurt or help certain judges. But attorneys have a professional responsibility to be honest, particularly if the lawyer signs that affidavit. The Clark County Bar Association that I know and the lawyers that practice here make it hard for me to imagine that that would go on. But feelings run high and some people aren't happy with what's said, and rumors get started.

The system works on the integrity of the lawyers, who are officers of the court, doing this the way they're supposed to do it. My belief is that on the whole everyone has done it. I mean, I don't know all the judges, but I've read the reports and there are some things that were, you know, on the whole. More often than not, I pretty much agreed with the numbers [that] came out. There can be concerns over the overall score and the Survey format, when it is published, in which both a positive comment and a negative comment are given about each of the judges in the Survey. The comments are anonymous. They come from articulate people, lawyers that talk for a living, and they can think some real zingers, and it's hard for the newspaper to resist printing those negative comments. Unfortunately, you may have a judge with a 98 percent rating in being fair on gender but this is tarnished by an isolated comment that this judge "never rules for a woman lawyer." How often will the average reader look at the numbers and see, hey, this is a 98 percent fair rating? Instead, they may remember the isolated comment that this judge "never rules for women."

CONSTANCE AKRIDGE: Methodologically speaking, we could turn those comments into a number code system and rate them, you know, on a certain scale as to positive or negative, and give you some statistics on that. Currently, however, we don't analyze those comments. We just turn those over to the client.

CAM FERENBACH: Or at least some way to make sure that if the comment is reported, it be vetted to make sure it's consistent with the overall fair -- I think it should be fair overall. Yes.

AUDIENCE MEMBER: Why don't you do this kind of survey for federal judges, or do you really believe they are so completely immune from being responsive?

CAM FERENBACH: When we had our last meeting with AB and doing up the survey, it caused me to think that the survey really has another function, and I think making this handout available to all judges partly serves that function. It's a feedback mechanism to the judges. I mean, there's very detailed information in there, and if they want to take it for what it's worth, they can get feedback. So for the federal judges, it would be a way to give feedback to them even though there's no election going. I do happen to know without going into any detail [that] there's not a lot of interest in the federal bar to have it included in the survey, and the concern that it might create new problems. Federal judges are rated by other organizations. Surveys are done, information is available, whether it's done through the government or commercially. There is evaluation on the national level already -- the Review-Journal would be that interested in it? Maybe they would, but I don't think the County Bar would.

AUDIENCE MEMBER: Do you feel that judges should be elected or appointed?

CAM FERENBACH: Overall, I would prefer something like the Missouri plan or modified Missouri plan. The main reason is that there have been some elections over the years -- and maybe they can talk about them some more -- that really degenerated into [the situation] when you have one person running against an incumbent, you know, all kinds of accusations get made, it becomes personal, and all this sort of things. I think that if you have this appointment process with the proper safeguards and have it open to any qualified attorney such as Jackie Glass -- I think she's downplaying her ability to be able to get appointed if she really wanted to under an appointment system. But be that as it may, I think an appointment system with some type of retention where you either retain or not, so that if the judge for whatever reason is perceived by the electorate as not doing his or her job, they could be removed and then, you know, then someone else could take the place.

When you have direct elections, then you have the fundraising thing and maybe this was supposed to be an attorney's perspective. I don't think I have to say much what the attorney's perspective is when there's 27 judges running and every one of them is calling up your law firm wanting money. You know, it's just -- it's unseemly; it creates all the wrong impressions to lay persons thinking everybody's got to pay off the judges in order to get a fair shake. It's not true. I believe that Judge Glass was accurate, and really, every judge that I've appeared in front of is trying to do the best job he or she can do to fulfill the oath. But it certainly creates a terrible appearance when during these election cycle every lawyer in town that goes to court feels pressured to give money to judges and show up at these functions and make sure that, you know, it's not because you think you're going to get favoritism by giving them money, but somehow a concern that if you don't give them money, and that everybody else does, you know, it just creates a very bad view.

AUDIENCE MEMBER: How about term limits or a single, long term for judges? Or, you can have judges serve your tour of duty. After you've been a lawyer for five to seven years in the state, your name's put in a lottery, you're picked to serve the term, four to six years. Your name is removed from that lottery after you served your term. That way there's problem with fund raising or running for reelection.

CAM FERENBACH: It would almost be like being jury duty for judges only a little bit longer. That's an interesting proposal. You would have to consider the issue of compensation. There are a number of federal judges making a lot less money now than they were when they were in private practice. But of course they have the long-term protection.

AUDIENCE MEMBER: Yeah, as a member of the voting public, one of the problems I see is evaluating the candidates. There's no way for the average voter to determine the competence of the judges seeking reelection, and we know that there are incompetent judges. And we know the attorneys know the incompetent judges, and we know the judges know who the incompetent judges are. But this has never crossed course so that I can make a decision

JOHN CURTIS: I think by and large there is a lot of information out there. I mean I saw all sides as a candidate, and as a candidate you subscribe to everything and you watch numbers everyday, whether you want to or not. Many days you don't, with you I think if you pay attention -- a voter who pays attention to both our newspapers, and the TV reporting and watches the commercials, I think you can get a pretty informed education about the qualifications of the judicial candidates and read the survey. I mean, you have to make the effort. It's not as easy as lining up the partisan of [Democratic congressional candidate] Dario Herrera, you know, versus [Republic Congressman] John Porter to see what they stand for. You have to dig a little deeper, you have to pay closer attention, but by and large, I would say, I was impressed by the media's attention to the judicial race, including the judicial poll, and any voter who wanted to read everything and wanted to go on the Web and see things and pay attention to these surveys, could find out an awful lot about the candidates and make -- maybe not as informed a decision as Cam Ferenbach can make, or Connie Akridge, but certainly an informed decision based upon what the media is putting out there about the judicial candidates.

AUDIENCE MEMBER: I worked in polling places, and seen the voters come in, and some of the questions they ask. The average voter it's the number of people who do the research to determine whether this person is competent or that person is incompetent. It turns out the overall voting public walks in I had a lady walk in, she says where's the button I push for the Democrats or Republicans. This is the mentality.

CAM FERENBACH: I think [this is the case] in some states. There are about a dozen or half a dozen jurisdictions that have partisan elections. In thinking of -- this may not have time -- but what I argue is if voters really are relatively clueless, particularly when we have a cavalry charge of 27 offices or something, maybe party cues are better than nothing. You know, you say, "I'm a Republican, I'm a Democrat" -- [that] means something.

CONSTANCE AKRIDGE: I actually don't have anything to add to what Cam presented about our CCBA's involvement in the judicial polling process, but I do have some documents that I'd like to distribute that I think would be helpful to everyone, not only for the afternoon session, that are more about judicial appointment versus election. And one is the poll that Judge Pro mentioned this morning that the ABA did regarding judicial impartiality, which indicates that people by and large, a majority of people, prefer to elect judges. They think selected judges -- 75 percent said -- that elected judges are more fair and impartial than those that are appointed. And there are a number of other findings I think you will find interesting.

There's also a sheet in here regarding where we are in terms of -- where Nevada is in terms of whether we appoint or elect. We're among seven other states, I think, or 17 other states, that have the elections -- actually 14 other states. We're within 14 other states. Seven states have partisan elections, and so forth. This is kind of off my topic, but I thought it was important to bring this information.

The other thing I wanted to hand out was an article by [Las Vegas Sun reporter] John Ralston showing the contributions to judges in this year's campaign. John Ralston notes in his article that Mark Gibbons raised $244,000. These are all issues I think that go to the perception of impartiality and I think it goes to why the Clark County Bar Association has decided to participate in the poll and do the judicial evaluation. So I'm going to hand these out.


Improving Judicial Selection: A Legal Scholar's Perspective

Jeffrey W. Stempel

JEFFREY STEMPEL: Interesting. And [here] is another issue. I mean, what I'm going to try to do -- and maybe I'm the skunk at the garden party because certainly I know now that the public likes elected judges -- but my perspective [is] billed as a legal scholar's perspective, so I think this is probably the view that most people in law schools have, that the appointment system, first and all, has certain advantages over an election system. Well, that's different than saying -- I think even people who are in favor of appointing judges, judiciary want it to be in the sunshine. So you ought to have information accessible, at least to the extent it doesn't endanger lives or things like that. I wouldn't want to see posted judges home addresses, their security codes, what kind of car they drive, license plate numbers, and things like that. But let me just read you, this actually appeared on election day, it was an Op Ed piece by a columnist named Steve Chapman, who put it perhaps more pithily than I could, although I don't know if I feel this extreme about it. . . . He calls electing judges probably a hyperdemocracy, the part where you elect the dogcatcher, and I would even apply some of these things to Constitutional officers, treasurer, auditor, comptroller that you find elected in most states where they're usually cabinet level appointees at the federal level. And of course the discussion in his view tends to be a little bit debased. Not many judges get elected by promising to scrupulously respect the Constitutional rights of every defendant.

A comment that was made earlier -- judicial elections just impose a burden on people charged with crimes as well as a burden on all the people who are expected to vote in elections. Most of us can't know enough to cast sensible votes. We might as well be filling these offices by picking names out of the phone book. Well, maybe that's where we're going. Americans love democracy. But do we need so much of it? A person who has two cats is an animal lover. A person with 50 cats is touched in the head. When it comes to self government, likewise, there's a difference between healthy impulse and uncontrolled mania. And perhaps that's a little extreme, but I would argue that we may be on the verge of that. Maybe this election is an exception because of the salary, but in particular, [given] the political science literature, I believe people will back me up on this, when I hear from my friends in the Political Science Department, you do get less and less information as you go down the line in offices. Most of us can even a not very sophisticated voter -- can pretty much tough out the difference between George W. Bush and Al Gore. May not have all the nuances of their various positions in all areas, but there's a lot better understanding of that than typically of the lower level offices, particularly when you get a cavalry charge of lower level offices. John's point is well taken. The stuff is out there, but you have to dig a little bit for it.

I should have brought with me the various photo guides that the various newspapers get. When you pull them open, you get about a paragraph on each judge. And that makes it, you know, from an academic's perspective -- you think this just isn't enough information. I subject students to approximately 50 classroom hours studying evidence. I hope they're preparing at least a couple hours for every hour in class and hope they're spending 40 or 50 hours cramming for the final and sitting for the final. They're spending something like 100 to 150 hours to get three credits of evidence, if they're doing it right, to understand this sort of issues. How can the average voter really understand as much about the technical things that a judge does, ruling on evidentiary questions, ruling on summary judgment, running the procedural aspects, applying Constitutional doctrine to the situations, interpreting statutes, reviewing legislative history, how well the judge picks the law clerk -- are they good law clerks, or are they bad clerks? You can study some of the things that happen, overlaying. I do think the Clark County Bar Association survey is wonderful for that. You can study whether the judge is gracious and courteous to litigants, whether they're abusive, whether they're unkind, whether they're in the office. It's pretty tough for lay people. And I hate to be an elitist from the ivory tower about this, but it is just darn tough for the lay people who haven't had three years of legal training, let alone legal experience, to be evaluating the bench in that regard. And I think that's the problem. I'm going to suggest that an appointed judiciary is better, both for these prudential and procedural reasons, and prudential policy reasons. I'll return to it a minute.

I also want to argue that it's not inconsistent with our democratic theory. The democratic theory of course -- and people can make wry comments, [but] you know, we really don't have a democracy so much as we have a Constitutional republic. We don't put everything through plebiscite, right? We elect representatives, we elect executives. The federal model of course is the most common. And it's one in which by definition the judiciary was not to be an elected office. But that's true with so much of what goes on in governing, whether you're a big government person or a limited government person, liberal or conservative. The fact is that much of the governing in this country gets done by people who aren't elected. Cabinet level appointees are a classic example of the federal government, agency appointees, you know, the upper echelon ones may need to be confirmed by the senate or another body, but certainly middle management, upper management. As one of my old professors used to say, most law in this country is administrative law, and by and large, most of the people who make it and enforce it and interpret it are not subject to election. And of course, let's not forget about the people who hold only mild official portfolios. I didn't vote for Carl Row, but he certainly has a lot of say with what goes on in this country, and that's simply going to be the case. So under that set of circumstances, where we don't elect everybody, and we don't put every question to the plebiscite, I don't think it's wholly inconsistent at the state level, and at the federal level, to say that we can have an appointed judiciary. And of course, as Judge Pro alluded to, we do have lots of democratic controls. At the federal level they have to be appointed by a President who's elected. They have to be confirmed by the Senate, which is elected. And they can be impeached. It's not a widely used cudgel, but it can happen. We have the jury system, at least in the federal and most state systems, for most actions seeking dollar damages. Most of your average tort and contract and other civil litigation has a jury, which is by definition a small democracy. We bring in average people and they're constrained to some degree to follow the law, they are instructed in the law, but they inject a certain amount of popular sentiment. We also have quality control for appeal, and I should put in a plug for an intermediate appellate court . . . because we worry about accountability and what we want judges to be accountable for.

You're going to get more accountability if you can get more in the appellate review. Even if the results might be the same, if you get a written opinion, in my view, having clerked for a judge and having seen how he read the advance sheets and how much he used a judge in the Eastern District Pennsylvania in Philadelphia -- he worried a lot about what the Third Circuit said about him. I know Judge Pro pays attention to what the Ninth Circuit does when it's reviewing his cases. And if instead -- because of the press of business and because of a lack of an intermediate appellate court -- the Nevada Supreme Court is simply affirming or reversing and doing per curium opinions to a large degree, they're providing less quality control feedback for the trial court bench. When you do get a reasoned written opinion critiquing the judge performance -- well, we're going to affirm because we found a timeless error a judge actually really could have done a better job on this point in the trial. Trial judges in my view will take that to heart. And so that's another mechanism that [works]. And of course we have it at the Supreme Court level too. If you have another layer of review, you'd have more of that. And so my view is that we are being consistent with democracy [if we are] to appoint judges, subject to some safeguards, whether it would be the federal model or some variant of it.

And of course there's the Missouri plan which was alluded to. For the benefit of folks who haven't been hearing this ad nauseam over the years, the Missouri plan began in approximately 1940 in Missouri and the system is simply one in which, as Cam well described, judges are appointed and then subject to a retention election. So it's not what I would call rock 'em sock 'em elections like we have in town where you have candidate A and candidate B and probably attack ads and things like that, as you have in a head to head campaign. It would be a retention election. Should Judge X stay in office, and in those circumstances there is quite a bit of popular control. The real purists who love an appointive system would argue, even though there might be too much popular control because it's in retention election states like Tennessee and California where judges have been perceived as too soft on the death penalty, [that] their opponents have been able to mount a very good campaign. And again, that's a campaign whatever your position on the death penalty, that's a hard one to have a deliberation about in a 30 second campaign spot. Either you let Willy Horton go on parole or you didn't, but what was his record before? What were the considerations, what were the legal issues? All of that is completely glossed over.

So I think one could argue that at least for issues that are of great saliency -- shall we call them hot button social issues -- even the Missouri plan system has significant control and constraints on the judges. And so part of my thesis is that you really do have plenty of democracy for judges and you don't need hyperdemocracy for judges. Pubic sentiment and control over judges can be expressed through their elected representatives and the executives, and then through the appointment process, through rewriting of the laws, through the funding of the judiciary. You know, we don't want to bring up FDR's court packing plan, but it's always there if the Legislature and the Executive really get angry with a particular court. They can change it to some degree as well.

But more importantly, I think, and more salient to this group, might be the public policy concerns. I've alluded to one of them already -- the expertise factor, the evaluation of expertise and technicality. Judges are a lot like administrative officials. They do technical work. We like to think that we were instructing people for three years in law school, that this isn't something we could have done in six weeks. There are some complexities involved in the process, and in order to become a lawyer and to get the job to become a judge and to evaluate -- that is just going to be hard for even the best informed lay person, even under the best of circumstances. The appointive process allows for a little bit more scrutinized vetting of the potential candidates. If it's done well, and that's another issue.

The independence we've talked about. Certainly the perception that Cam alluded to is a terrible one. I think I see Steve Sebelius is in the back. His column on Jeff Sobel's letter to lawyers looked an awful lot like, "Up against the wall," you know, "hands up, give me your pocket book." And that's not a perception that I think is a healthy one. Even though, as Cam does, I think most judges really do try to screen that out, but of course, as psychological theory would suggest, we never quite screen that. Now of course it's an important distinction [that] has to be made. The lawyers, while they'll benefit from having a winning record or losing record, they're not the litigants, right? They're not the ones who will pay a judgment or receive a judgment; so there's some insulation even there as well. But nonetheless, at the margin, psychological theory would tell us, subconsciously, judges know who their friends and their enemies are in the electoral process. They also know that from the appointive process. So I don't want to sugar coat it, but when you have outright funding, that's a rule.

Another thing is that's of a piece is [that] our recusal in Nevada needs to be investigated. Jackie Glass alluded to that. Here in Nevada, unlike the federal system, which abandoned it 25 years ago, we have the so called "duty to sit" doctrine which, translated into plain English, means a judge should disqualify himself only when it's really, really, really, necessary, whereas the federal system has a little bit lighter standard. Judges should recuse themselves if their impartiality can be reasonably questioned. I've always been a fan of the federal standard. In Nevada it's just a hard thing to recuse yourself. Judge Denton tried to do it in the case that involved a piece of property where he had received campaign contributions, not in significant amount, I think, four or five thousand as I recall, from entities that had some interest in the case. And he said, "Well, I think I could be fair, but people might worry about it. I'm going to disqualify myself." Goes up to the State Supreme Court; they say, "Sorry, Judge Denton, that's admirable on your part, but try the case, darn it. We have a duty to sit in Nevada. Don't be a wimp." Okay? You don't disqualify yourself. Well, I think that's a jurisprudence that should probably change, at least if you don't change an elective system. And maybe we put some limit on the amount that people can give on campaigns and what the overall percentage is. Maybe we should have better disclosure, but that gets to a point of whether we reform the election because we may be stuck with it, because the Constitution is so hard to amend. But it is certainly unseemly. The elections that we had, for example, in the Sobel-Glass race -- well, I didn't need to see Judge Sobel in his T shirt. I didn't need to hear that Jackie Glass defends criminals, at least not the way those things were presented. They really weren't presented in an erudite, issue warranted way. They were presented more by way of tarring opponents. And recently the Brennan Center at NYU has made a real issue of significant studies of judicial campaigns. They have come up with the report that Judge Pro alluded to and that finds that in 95 percent of the judicial races, the person who spent more money on TV wins. Not newspaper, TV wins. And of course that's not that different than other elections, but it's higher. It's more like 80-85 percent [that go] to the TV spender . . . in the Legislative and Executive races. But it's higher in the judiciary, and I'm sure that's a consequence of the lower voter information [about] the people who are running for the judges.

And in addition to that, you think some of the stuff in this town gets nasty, [but consider] the Brennan Center report, which is available at NYU's website. It has some wonderful, wonderful, but shocking -- wonderful in the sense of amusing, shocking in the sense of content -- outtakes from the Ohio Supreme Court race in which it was really down and dirty in terms of the things that were being said about the judges and that at the margin can't help but lower respect for the judiciary and the role of law. I think [this] is a chronic problem. And let's not forget the resources that are expended on it. Connie just handed me the sheet and my quick math suggests we've had at least a couple million dollars being spent on judicial campaigns. That may be nice as a pump priming mechanism for political consultants and paid media outlets. I don't think it's a particularly good expenditure of social resources. Yes, if we count all the costs, as economists tell us, we should be counting the costs of an appointive system and the vetting and the professionalism and professional expertise that's invested there. But I think that's probably a more economical way to do it. And in fact every time I drive buy the still unexpurgated signs from this year's political campaigns, I begin to wonder about the waste that's at issue, when you have what I call freewheeling elections campaigns for judges. Under a Missouri plan, you'd certainly have a lot less of that, you'd have less expenditure of resources, and at a time when we're wondering about our expenditure for private and public resources and the efficiency of it -- it just doesn't seem to me that it's worth the candle.

Notwithstanding that, I think we're rather lucky in this State where we have the quality of the bench we do, given that it's a rock 'em, sock 'em, head on head, everything but partisan system. There are seven states that actually let people run as Republicans and Democrats for judge. And I will say this in the defense of the system which relates to Judge Elect Glass's campaign. It appears that in the electoral system the avenues for women are more available. Appointed systems tend to get to be old boy networks, and that's a problem, but I think it's a problem that can be fixed by making the appointive system less old boy. Have your nominating commissions, if not require it, have a strong affirmative action consciousness. They submit a list of names to the Governor, as under the Missouri plan system, and the Governor has to pick a name from the short list. That short list [should] not be all white guys in their 50's, who work for big law firms. Okay? And that if we just actually put our actions where our politically correct thoughts are in terms of looking for the diversity, and let people apply for those positions. Let people come out of the woodwork and say, "I want to stand for and request this appointment," and [then] force that committee to say, "You know, this person isn't that active politically, they are not power players in town, but they have a great track record of public service, or a 98 percent win rate as an assist DA." And I think some of those folks will come through the system.

I tend to share Cam's view that someone with Jackie Glass's qualifications would have been a contender in an appointive system. But it does appear that at least to some degree the elective system can still open some doors, and that's an important point that I wouldn't want to overly minimize. To me it's not enough of a tail-to-wag-the-dog problem we have with an electoral system and the comparative advantages of an appointment system.

Let me then suggest [that] we cannot have Constitutional gridlock. It's hard to amend the Constitution, we might have interest group gridlock. Even with the best of intentions, it's probably not lost on the owners of media outlets that they make money. It's not lost on consultants that they make money. It's not lost on some law firms that they may or may not have greater cache with the bench because of their expertise and ability to raise funds and stand behind you. It may not be lost on some interest groups that their endorsement carries weight. So you may have a system where, even if I could convince everybody to try starting from ground zero, that appointment is preferred. There are too many entrenched folks and interests in this town that don't want to make it happen. Particularly when all you've got to do is defeat a Constitutional amendment. And it's a lot easier -- we all know this from kids playing sports -- it's a lot easier to play defense than offence. Okay? And as a result it may be hard to ever effect a change you need in this state if I could even convince you that an appointive judiciary is superior.

Let me suggest this, though. If you read Article Six of the Nevada Constitution, it simply says that the judges will be elected by the qualified electors of the State at the general election. And I don't purport to have done an extensive Constitutional law analysis of this, but at least the possibility is open to tinker with that system and not be in an unconstitutional situation so long as you leave in essence the core of an election for judges in a general election. So maybe we could do more with screening committees. Maybe we could do more with official State Bar vetting and endorsements that might affect the outcome of these. Maybe we could change the terms. Maybe we could require more reporting. And of course some of this is not so much capable of legislation, although I applaud the press, particularly for the joint effort with the Clark County Bar evaluations. Maybe we need a more sustained focus on these elections so that it gets the sort of scrutiny that a U.S. Congressional race does, if we're going to actually allow voters to do it. Maybe we should consider partisan elections. I don't believe that's at all inconsistent with the Constitution.

One of the things I teach is insurance law, which [shows that] the McCarron Ferguson Act tends to be different in each state, and so actually more than a lot of folks on law faculties read an awful lot of State Supreme Court cases. So I've read them, at least on the issues I'm interested, [in places like] Arkansas, Alabama, Texas, places that have partisan elective judiciaries, and I think the results are sort of mixed. You see the court sway on one. I don't think it's terrible by any means. And one can argue that the voters know more when people run as a Republican or a Democrat. And you do see some swings. You see the Texas Supreme Court going from fairly liberal in the early 90's, to pretty darn conservative in the late 90's. I don't think you see any fall off in the erudition of the judges. Whether you like them or don't like them, whether they're from the left or the right, the quality of the opinions from the partisan elected courts is really quite good. These are good opinions, they hang together, they're well supported, even if they're not the position which I might elect or might gravitate toward in that particular case. So we should probably be at least open to all those sorts of things as well as the other structural reforms [like] a more sensitive view of recusal, and again, more quality control through increasing appellate review. Those are all options that are open to us even if we retain the elective system, and it's not at all unfair to me. I'm not sure, this might be Constitutional sophistry, but it's not clear to me that the Missouri plan wouldn't be perfectly consistent with this. It's probably not because elected by the electorate probably means you need to be put in office the first time by election. But is a retention election thereafter necessarily unconstitutional under the Nevada state Constitution? I leave that to more creative Constitutional snobs than I purport to be. But where we might be able to make a move somewhat in that direction, if there's a policy consensus, that's where we have to go.

Now, with that, since people's blood sugar is probably extremely low at this time, while we have the panelists here -- I'll be around in the afternoon should anybody care to chastise me for what I've said. But I'd like in particular to give everybody one last crack at our speakers down here before we break for lunch. Let me just add for the panelists and for those who registered for the lunch -- it's in room 106, and we are in 101. I'm sorry, Dmitri, I can guide you there. We can guide you there. And for those of you who haven't registered, but are interested, it's available at a somewhat more than nominal charge, but there may be some, there are a few places left. If someone's interested, come and see me or Dmitri. But I didn't want to just end abruptly if people still had questions for the panelists. Yes?

AUDIENCE MEMBER: Could I ask Nancy Downey, what other suggestions as a professional surveyor, would you make to improve the judicial survey? You mentioned a point before and then also the rumor that there was a party -- and I understand it was a group of male attorneys -- to make sure that female Judges got marked lower. What kind of a checks and balances could you recommend?

NANCY DOWNEY: One thing I mentioned before was we could do cross tabulation of the responses by gender. Once that was done, I didn't provide that to the client. We found that there was no defensible significance between male responses and female responses on female judges. So that was one way --

JEFFREY STEMPEL: It was probably women's attorney party that was trashing all the male judges.

NANCY DOWNEY: Now I would have liked to have been invited to that. But I would come over to report to that effect and spend some more time. And I would like to do that. I have a final exam due at 1:00, and my students will be waiting, so I'm sorry.

JEFFREY STEMPEL: Okay, that's fine. And I think I saw one other hand up. If it's still there, we'll take one more question. Yes?

AUDIENCE MEMBER: Are there going to be more handouts available?

NANCY DOWNEY: I didn't make enough copies, but you can get the information on the ABA website, which is ABAnet.org.

AUDIENCE MEMBER: Is there a possibility we can get more?

NANCY DOWNEY: Sure, if you want to give me your name, I can send you one. Not a problem.

JEFFREY STEMPEL: And even though we're running a little bit, we hope fashionably, late, we're going to try to reconvene at 1:30 for the afternoon segment of the program. John Curtas will be he has moved from the first panel to the afternoon panel if you want to hear his account of running for office, as well as the people that are listed on the program. Thanks. We'll see you in about 45 minutes or so.


Judicial Elections vs. Judicial Selections
Session 2. 1:30 - 4:00 p.m.

DMITRI SHALIN: Welcome to the Justice & Democracy Forum Series. This is session two in the conference on AJudging the Judges: Should We Elect or Appoint Nevada Judges?" Earlier today, I read a note from Carol Harter, UNLV President, welcoming conference participants. I want to extend her warm welcome to the present set of panelists, as well as to those attending the second session of the forum. . . .

Before Ted Jelen takes over, I want to reiterate the mission of the Center for Democratic Culture, which is to promote the ideals of American pragmatism, particularly the notion that the process of democracy is as important as its outcome. The first panel's primary focus was on evaluating judicial performance. The second one centers on judicial elections. By way of an introduction to this panel's main theme, I want to mention to you a passage from Deuteronomy which I spotted a few weeks back while attending services for a Bar Mitzvah. The passage relates instructions that God gives to judges, and it reads in Hebrew, "Lo Takhim Punem," which literally means, "Thou shall not recognize a face." The Torah commentary explains what it means -- a judge should not show favoritism. All the past and future dealings with the person for whom the judge is about to seat a judgment must be rendered irrelevant. Whatever the consequences, the judge should remain impartial, steadfast, and fair, for "the judgment is God's."

I do not intend to breach the wall between church and state, but the issues involved are very much with us. Can a judge, after securing a campaign contribution from a businessman or businesswoman, render judgment on a case affecting the donor without recognizing the donor's face, without showing favoritism? Doesn’t election process bring judges in a relationship with contributors that compromise the judicial process? This is one of the issues this panel is meant to address. Now I turn the floor over to Professor Ted Jelen, head of the Political Science Department at UNLV, who will introduce the stellar lineup for our current panel.

TED JELEN: Thank you, Dmitri. Our first speaker of course is John Curtas, a member of the Board of Governors of the State Bar of Nevada and a candidate for judicial office during the Fall 2002 elections.


Another Report From the Trenches of Judicial Politics -- and a Call for Reform

John Curtas

JOHN CURTAS: I was looking at the report, the monetary report that goes around there, and I noticed I was put in the middle -- middle to high -- category of fund raising among those candidates who lost. I begin by discussing fund raising because it is so important in the election process, too important for the good of judicial elections. There are three different reports candidates must make for disclosure concerning their fundraising. The last one was filed October 30th, and then one has to be done in January.

Those reports are fairly accurate for some judges and some of the participants in the judicial races. And they are very inaccurate for others because there's an awful lot of money [that] comes in after those reports are filed, especially at the very end of the races. Lous Lapim, editor of Harvard Magazine, has a great quote about politics. He says, there are two important things in politics -- "Money, and I forgot what the other one was." A similar aphorism that is more frequently quoted is from Jesse Unrow, former Speaker of the House in California, who said money is the "mother's milk" of politics, and nowhere is that more true and nowhere did I get a better pie in the face about that than I did when I decided to run for judicial office.

I got in late, unlike some people. I'm kind of proud of the money I raised because I only had a few months to do it, and I raised more than people who started a year before me. Unlike a lot of people, including Judge Glass, I didn't put an incredible amount of my own money into the race, which I think is also part of the -- what those figures misrepresent, not intentionally, but [what they] don't figure into is the loan that candidates frequently make to their campaigns -- when they see that when it finally hits home that the entire race of getting elected is entirely about money. And whether you are elected or not comes down to whether you are willing to raise and ultimately spend more money than your opponent. Some people decide to write very large checks as Judge Elect Glass did, to the tune of 155,000 dollars, to her campaign. That put her in the over 300,000 dollars that she spent on the campaign, which was more than incumbent judge Jeff Sobel spent, and he raised and spent a lot of money.

Most of us don't -- didn't -- practice in that rarified air. When you decide to run for judge, the process goes something like this. You announce after talking to a few people, everybody's very happy. You get a lot of nice phone calls, you talk to a few people, you make your obligatory and very pleasant pilgrimages to the press, talk to the reporters and the editors and tell them if they'll take your phone call why you're running and hope you get some favorable publicity along the way, knowing that you're going to get some from both sides, and that's just the way the game's played.

Once that post announcement glow subsides, then the reality hits hope because everybody then comes to you -- political pros, family friends, other lawyers, other judges -- and they all have one, and only one, question for you. "How much money are you going to raise?" Nobody wants to know how good you are. Nobody wants to know that I've tried more cases than Justice Becker or that I'm anti death penalty and she's pro death penalty or anything like that. Nobody asks you those questions. The people in the know want to know one thing, how much money can you raise and how much money are you going to spend to get yourself elected judge.

That simple equation, as you find out, which is true in 95 percent of the races, means that money inevitably has perverted and corrupted the system we operate in. And any time [you] hand a dollar to somebody, you alter your relationship with that person. Whether you're paying them to cut your grass or you're buying some shampoo from them, or you're giving them a dollar to help with their campaign. Everything changes when money changes hands. And it's folly to think otherwise.

To have that as the underpinning of every judicial election, and that corruptive influence being the underpinning of every election, and not recognizing it is just pretty much, you know, ignoring that giant pink elephant in the middle of the room. And the people who defend the status quo, I think, do so generally because as incumbents, or people that have won, they find that worked in their favor.

I disagree totally with Jackie Glass -- running for election is not about gladhanding or endorsements or grass roots campaigning. It's about spending money for television advertising, and that is all it's about. Jackie outspent her opponent, she won. Oddly, I mean, Jeff Sobel, who is a friend of mine, so is Jackie for that matter, Jeff Sobel spent a huge amount of money, but he ended up getting fewer votes in the Sobel-Glass race than I did in the Curtas-Mosley contest, which is a bit scary. But then again, despite whatever bad press I received, nobody ran a television advertisement showing me in my underwear (which was in one of the anti-Sobel TV spots run by the Glass campaign), which would have gotten me even fewer votes.

Everybody comes to you when you run and say, how much money are you going to raise, how much money are you going to spend. From there it jumps right into, "You've got to start dialing for dollars." I think Las Vegas Review-Journal columnist Steve Sebelius writes about this, and I got that quote from him. You just sit at home, you get lists of lawyers, clients, friends, family, acquaintances, and you just work the phones day in and day out begging. You learn three things when you run for office: You learn how to beg. You learn how to lose weight. Ad you learn who your friends really are. And that's -- those are probably both the good and the bad parts. But it's all about getting that money in the door, and the money isn't for anything but television advertising.

So if we're going to look at why we elect judges, we want to look at the big picture here. You've got to cross your philosophical threshold. And that threshold is that we like the fact that we elect judges based solely upon [the fact that] he or she who has the most television advertising wins. Because invariably that's what it comes down to. It comes to and if we're happy with that, which I don't perceive the public really is, then the status quo should remain. If we're not, and there are many reasons not to be happy with it because when it comes down to just who has the fanciest commercials or who can show their opponent in their underwear, or who can beat somebody else on the head with an issue, rather than what elected office should be about, which is qualifications and experience, because we're not talking partisan elections here. Judges aren't supposed to be taking partisan positions. It should all be about those things, instead it's just about spending the cash for political commercials.

If we make the threshold determination that we don't want, [that] we want it to be about more than that, that we're looking -- we're setting our sights higher, both as an electorate and as a judiciary, then you have to take money out of the equation. So to me, it's not about -- this is the shocking thing, which a lot of my friends don't agree with -- everybody expects me to get up -- and I've given this speech a couple times now -- to be against the election of judges. I'm not against the election of judges. Simply because my philosophy is -- you want experience and qualification as a judge. I'm against inexperience and unqualified people being judges. That's what I'm against. I'm not against the election process.

It seems in this state we have two ways of improving judicial competence. We've got the money leading to fancy television commercials and you get elected, in which case you get a judiciary, and I know the people here. I think we have a supremely unqualified judiciary in this state. Well, maybe not throughout the state, I don't know the whole state. I know Clark County and I know a lot of judges and I know all of the candidates, and I think there is a huge number of sitting judges at every level who have no business being there. And that's because the people that are there they may want the job worse than the person they beat, or they may be better at raising money than the person they beat, but that doesn't mean that they're better than the person that they beat. So if we all start with the understanding that we want a qualified judiciary and an experienced judiciary, you have to figure out a way to get money out of the equation.

One way is to have judicial appointments. But unfortunately, the way that works in this state, I think is as corrupt as the corrupting influence of money. It's so corrupt because what we have is we have supremely unqualified judges being appointed by our governors based upon who wants to do a favor. Just because a Governor wants to do somebody a favor isn't any reason to appoint a judge, a person to such an important position as a district court or even municipal judge.

As I was driving here, one of my clients and a businessman in town reminded me that he uses the judicial system on a regular basis. He's a contractor. The fellow's name is Duke Phelps, Randall Duke Phelps. He's the president of Morningside Homes. He builds houses all over the County. He is both by choice and sometimes just by happenstance in the judicial system on the basis of mechanics liens, construction defect and collection actions. So he's a legitimate business person who has a lot of hands on acquaintance with the courts, and his point was you can't have something as important as a judicial position where people are making life changing decisions for the people in front of them. You cannot have people sitting there in those seats who did not have the gumption, I think I heard the word, or the wherewithal you know the person of experience, or the education, or . . . the personalities to make these life changing experiences, and experiences that effect people on the deepest emotional and financial levels.

Because of corruption of our judicial system by money, we have a system that encourages that. But the appointment process can be just as bad. Our politicians have been more atrocious than the people that are getting elected. Another consequence about running for election is that you develop skin as thick as alligators hide. So you can just stand up here and take the heat a little more than other people might. You have to consider reforming the system in a way that eliminates corruption and accentuates experience and qualifications. And running -- running a campaign on the basis of cash isn't doing it, and having governor's backroom deals isn't doing it. So something has to happen that I think takes maybe the best of both of those systems, giving it to the electorate to throw people out or put people in, maybe in a way that money doesn't play such an important role, or shining the bright light of the press and the public on what happens in the judicial appointments.

On the whole, I would run again. I believe in the elective process -- elected process of judges -- in electing judges, but I think you have to figure out a way to do it whereby the qualifications and the experience of the candidates and what separates them from their opponents is placed before the electorate in an even manner, so educated decisions can be made. If that can happen, then I think elections are fair. If we don't have that, we're just going to keep -- if we don't do that, we're going to keep having people elected -- I think somebody said a little earlier that the elective system opens the doors for people who might not otherwise be able get into the system. Well, I don't know if that's really always a good thing. Just because you want to be a judge doesn't mean you deserve to be a judge. Just because you have money or have friends who have money, doesn't mean that you necessarily have the capacity to make the decisions that effect people's lives like a judge does.

I'm not calling for an end to judicial elections, just calling for a system that is better than the one we have now. I have practiced under the Missouri plan. I'm also licensed in New York and Connecticut and Kentucky. Kentucky elects judges just like we do. It's just wide open and crazy. Connecticut and New York have much [more] dignified systems, and I will say, having practiced as an experienced lawyer in both those states, the judiciary in those states is held to much higher standing and respect by the judges, by the lawyers, and [by] the public, than it is in this state. So what we have here is a system that I think is corrupt from within. We've the capacity to change it, but we have to figure out a way to end these corrupting influences, and unfortunately, it's going to take some radical thinking by greater minds than mine to do that.

TED JELEN: Thank you. Our next speaker is Tom Mitchell from the Las Vegas Review-Journal.


Evaluating and Electing Nevada Judges: A Journalist's Perspective

Thomas Mitchell

THOMAS MITCHELL: I do a monologue everyday, so I prefer a dialogue where I can get out and get some people asking questions like they did this morning. But I would like to ask a few questions [regarding] some of the topics that I heard this morning, things like . . . civility and public discourse.

Since when? Thomas Jefferson and the Founding Fathers never had any civility. If you read what the press said about them at the time -- they were vilified. They said things about them, their parentage, and everything else. Also it seems to me human nature. When you sit around and you see a problem you want to fix it. Everybody wants everything to be foolproof. I've got news for you. The fools keep finding better ways to circumvent the system every day.

What you need to do is get a system that overall is self correcting. Things are going to go wrong. That's what my role is in the press and in a democratic society -- to go out, look, shine a white light. And over the years I've shined a white light on things that I felt were serious problems, and the readers and the politicians look at it and go, "Who cares?"

One of the things that I keep hearing is an underlying factor in all the discussions on whether we should elect judges or should appoint judges and whether or not there's too much money as a corrupting influence, or TV is an influencing factor, and it all comes down to the bottom line . . . that the voters are just too gosh darn stupid to figure out who the best people are. Well, maybe the answer is to educate the voters better.

Now to get back to the fundamental civics in high school and college, I should do a better job. I mean, these are some of the things we need to think about before we decide to throw out the baby with the bath water.

Regarding appointments, anybody who's worked in Louisiana like I have known that appointment -- the term patronage is not a dirty word. And as a matter of fact, I think Huey Long's story was that he sat down with a reporter in a small rural restaurant, and put three glasses of water on the table. He said here's how politics works in this state. I take three dollars from glass A, give a dollar to glass B, a dollar to C, and keep a dollar. I make one enemy, two voters and a buck.

The way to get around this is to have an educated public that knows how to go to the polls. We throw the money that was being thrown out there, we know what to use it for, and pay attention to what's going on.

TED JELEN: Next we'll hear Michael Bowers, who is from the University of Las Vegas, on [whether] elections should be publicly funded.


Should Elections Be Publicly Funded?
Michael Bowers

MICHAEL BOWERS: The most recent study of this was a 50-state court study by Melinda Gann-Hall, a political scientist. She studied, between 1980 and 1995, state Supreme Court incumbents [who] were challenged for reelection 44 percent of the time in nonpartisan election states, 61 percent of the time in partisan election states. Now those figures are actually somewhat high because they count, you know, anyone who can put in the filing fee and challenge a judge, whether or not they actually have any money or actually run a campaign at all. What is more significant in Hall's findings during the same time frame is that in partisan states, only 18.8 percent of incumbent judges lost. And in nonpartisan states such as Nevada only 8.6 percent of sitting judges lost. So it is fairly rare that they are challenged.

It is even rarer that they are defeated. For example, if we look at the most recent election here in Nevada, in Clark County, there were 21 races for District Court judges. Seventeen of those races featured incumbents. Out of those 17 races, 13 of 17 incumbents had no challenger. That's 76.5 percent for you statistics fans out there. Three quarters had no challengers. Only four incumbents had challengers. Of those four incumbents, only one, Jackie Glass, won. That is [being] so, what do we find? Incumbents are not challenged, three quarters of incumbents were not challenged. Of the [one] quarter that was challenged, 75 percent won reelection. So all tolled, then, of the 17 races, 94 percent of the incumbents were reelected.

At the Nevada Supreme Court level, of course, there were two positions this time up for reelection, one through a challenger, Chief Justice Maupin, and in the second race there was no challenger. It was a vacancy. Oh, Judge Gibbons. That's right. Judge Gibbons. So we had one race involving an incumbent, and that incumbent won. So again, incumbents [are] rarely challenged and they are even more rarely defeated.

The third part of this picture is the lack of voter information and voter drop off. One reason for the high reelection rates of judges is that voters tend to have very low levels of information in these races. And they frequently either choose not to vote at all or they choose blindly. Now in partisan elections, of course you have a party cue. You vote for the Democrat, you vote for the Republican, whatever. In nonpartisan elections such as in Nevada, you simply don't have that cue to work off of. In studies of nonpartisan elections, Straffner, Streb, and Wright found that nonpartisan elections not only reduce participation but also result in better use of incumbents as a cue in voting for candidates.

Similarly, both Blunt and McDermott found that in low information elections such as those for judges, voters cue on candidates names, ascribing a more liberal stereotype to women and minority candidates than they do to white males. Voters in these elections then often cast their votes based upon these stereotypes about the candidates. I would vote for the woman because she's more liberal. I'll vote for the minority because he's more liberal. I'll vote for the white male because he's going to be more conservative, and so on. Not surprisingly then what we find is that women and minority candidates in these elections tend to do better among Democrats and liberals than they do among Republicans and conservatives. Elections for judicial positions are typically low key affairs, regardless of their partisan or nonpartisan nature. Part of this of course is a result of the code of judicial conduct which prohibits statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court. One of the consequences of a lack of issues is that candidates will, more frequently than one might hope, resort to negative campaigns and personal attacks upon their opponents. After all, if you don't have issues, what do you have? You have personal attacks and negative campaigns.

In some cases, including cases here in Nevada, these campaigns have resulted in complaints before the Judicial Discipline Commission. A second consequence of these issueless campaigns is that voters tend to have very low levels of information about the candidates. Ferreting out such information about the candidates requires very high levels of activity by voters and many in response simply choose not to vote in judicial elections, or as I said earlier, to vote blindly. Study by Alan T. Clots, a political scientist, found a voting roll off rate of from 12 to 25 percent between top of the ballot races and judicial races. That is those people who vote for president or senator or governor, anywhere from 12 to 25 percent of them will not vote in judicial races.

Now, okay. That's bad enough. This is the scary thing -- he also found that one third of those voters who did vote in judicial races could not remember the name of even one candidate they had voted for. An analysis of the 1992 elections in Ohio discovered an average roll off rate of about 20 percent of that state's judicial races. In Nevada, a study that I've done earlier shows a rate of anywhere from 10 to 30 percent depending upon the race. Again, if you look at the most recent races -- if you look at the Nevada Supreme Court race, for example, this time, you take the people who voted in the Governor's race, and those people who voted in the Supreme Court races, in the Maupin race, there was an 11 percent roll off rate. That is, 11 percent of the people who voted for governor did not vote for that Supreme Court seat. And in the Gibbons's race, without an opponent, there was a 16 percent roll off rate. Now that's being generous, because I'm also counting those 75 thousand people who voted for none of the above. If you counted those people as not voting, and probably most of those people would not have voted if they didn't have that option, if you counted those people, then you would have a much higher drop off rate than the 11 or 16 percent. In the District Court races, of course, where the candidates are even less known, the drop off rate will run as high as 30 percent.

Now, of course the notion of issueless judicial campaigns may change. I suppose Justice Becker may talk about this in her presentation, as a result of a couple of Supreme Court rulings. One by the Nevada Supreme Court and one by the U.S. Supreme Court. The U.S. Supreme Court, just earlier this year, in Republican Party of Minnesota versus White, declared a Minnesota regulation unconstitutional. That regulation prohibited candidates from announcing their views on disputed political or legal issues, and so presumably, then, if that is to take hold, judicial candidates will be able to, in the future, announce how they view these various legal and political issues. And that will turn these campaigns into something more than the issueless ones that they have been, not necessarily for the better.

The second [point] is of course that the Nevada Supreme Court has recently allowed candidates to divulge their party affiliations, something which they were not previously allowed to do. So that voters who are able to ferret out that information would now be able to use party as a cue. The point I'm tying to make here, however, ultimately is that elections do not necessarily achieve the goal of accountability of judges. When you have a system where large number of judges are initially appointed to the bench by the governor, once they are there, they are rarely challenged and even more rarely defeated, and the voters don't know much about the candidates or the races and choose in large numbers not to vote or to vote blindly, then it's hard to see how these judicial elections really do hold judges accountable.

Of course one of the most serious problems with elections is campaign contributions and conflict of interest. In those cases where you do have a challenge to a seat on the court, it's become quite typical for these races to run into the hundreds of thousands, if not millions, of dollars. An Ohio Supreme Court race two years ago, for example, cost in excess of nine million dollars. Ten years ago, in Nevada, the race between Charles Thompson and Miriam Shearing ran over one million dollars. That's in a sparsely populated state such as Nevada, that has only two media markets. In order to run a campaign of course candidates must gather campaign contributions from, generally, attorneys and insurance companies, the two groups most likely to appear in court before them. And of course in Nevada, we can add to that gaming corporations, who are also very likely to appear before them. This of course creates the appearance, if not the reality, of a conflict of interest.

A study by the Texas Supreme Court, for example, found that [of] 246 attorneys responding to a survey, 175 of them -- that is, 71 percent -- disagreed with the statement that, quote, "political campaign contributions do not affect the judge's decision making." Seventy-one percent disagreed with that. And in Pennsylvania, a poll by the Pennsylvania Supreme Court of average lay people, not attorneys, found that nine out of ten respondents believed that judicial decisions were influenced by campaign contributions -- the appearance of a conflict of interest, if not the reality.

Although many suspect the contributions to judicial candidates affect their decisions, few studies have been able to show any real link between campaign contributions and judge's decisions. However, a study of Philadelphia's municipal and common pleas courts by the Philadelphia Enquirer found that during one five-year period defense lawyers who had either worked in on contributed money to judge's campaigns, won 71 percent of their cases before these judges. In the same courts, an average of only 35 percent of defendants won their cases. Twice as many, if . . . a lawyer had worked in or contributed to a judge's campaign. Is that causality? No, we can show a correlation, but we can not show causality there. A recent survey by the Texas State Bar Association said that 30 percent of judges, 30 percent of judges, said they knew colleagues who assigned counsel because they contributed to their judicial election campaigns.

In some states such as Nevada election winners even hold post-election parties -- I believe John Ralston refers to them as shake downs -- to gather contributions for campaign debt retirement so that those who had not previously given will now have a second opportunity to curry favor with the newly elected judge, further lending credibility to claims of favoritism toward campaign contributors. An analysis of the Texas Supreme Court justices' election campaigns between 1994 and 1998 found that justices were four times more likely to accept an appeal filed by a campaign contributor than they were to accept an appeal filed by a noncontributor. And furthermore, the more money a petitioner contributed to the justices, the more likely that the justices were to accept a given petition. In a recent study of arbitration law in the Alabama state courts found a strong correlation between a justice's source of campaign funds and how that justice votes in arbitration cases. The study concluded that, quote, "even seemingly bland questions of contract formation, interpretation and waiver are apparently battle grounds between the interest groups." Arbitration law in Alabama seems to have no doctrinal integrity that survives the vicissitudes of the interest group battle. Even arbitration law can't get away from this battle between the interest groups.

Now of course one proposal to resolve the problem of judicial elections is simply to eliminate them and to adopt something along the lines of the merit system -- that's not going to happen. That is not going to happen in Nevada. The voters have turned it down in 1972 and 1988. It is simply not going to happen. Most voters do not perceive a problem. In fact most voters seem to support the idea of judicial election. Secondly, the two major daily newspapers in Las Vegas, the Review Journal and the Sun, actually agree on one thing, and that is their opposition to merit selection of judges. And those are -- both of them operating together -- are quite influential. And of course there's very little incentive for judges and lawyers to push for merit selection because it would be seen as self-serving, serving their own interests, giving them more participation in the process. And of course that would surely be a reason to vote against it if the lawyers are for it, and so consequently, then, it's very unlikely that that's going to happen in Nevada.

So what's the alternative? Okay, the alternative then may be public financing of judicial elections. Instead of candidates going out and gathering their own campaign contributions from private sources that are likely to appear before them, have public financing of judicial elections. Now the primary advantage -- really there are a couple of advantages of public financing -- is that, first of all, the more money that candidates receive from public sources, the less they will have to raise from private groups and individuals who are interested in the outcomes of cases that judges decide. Therefore, public funding reduces the potential for campaign contributions to influence judicial behavior and addresses the public perception that such influence occurs. And the second advantage of public financing is that it potentially would increase competition for judicial seats. Candidates who might ordinarily have a hard time raising funds would be allowed public financing of these campaigns, and therefore, would be more likely to challenge sitting incumbent judges, and in that sense make elections really a tool of accountability. At the same time, there are some practical problems that come about to implement public financing. Six questions that have to be addressed.

First, which races should be publicly funded -- State Supreme Court, state district courts, family courts, municipal courts, justice courts? What courts are we going to provide public financing for? Should the funding apply to general and primary elections as well? Second, how much funding should be provided -- full funding or partial funding? Third, which candidates should be eligible to receive public funds? Presumably only, quote, "serious candidates" are going to receive public funding but who are these serious candidates? Require them to get certain number of signatures on a petition perhaps, require them to gather a certain level of seed money from contributors perhaps? How do we judge who the serious candidates are, who will receive these monies? Fourth, what conditions should be imposed on the candidates for funding? Are we going to put limits on contributions they may accept, perhaps limits on spending? Fifth, how do we deal with excessive spending by a candidate's opponent who has chosen not to opt into the public financing system? And sixth, how should revenues to this fund be generated -- general tax revenues, tax check offs, court fees, attorney licensing fees? Where's the money going to come from?

Currently only two states have public financing of judicial elections. They are Wisconsin and North Carolina. Wisconsin has had public financing of Supreme Court candidates only, since 1976. They do not fund any other judicial campaigns, only their Supreme Court races since 1976. North Carolina just this year passed a law providing for public financing of appellate court campaigns. That would be the North Carolina Supreme Court, and the North Carolina Court of Appeals. Those only beginning in 2004. So currently only one state does, Wisconsin, but North Carolina will begin in 2004. How have those two states answered these six questions? Well, let's look.

What races? Well, Wisconsin says Supreme Court only. North Carolina says Supreme Court and intermediate appellate court. How much funding? That's question two. Wisconsin only provides partial funding. Candidates are allowed to spend up to 215,000 dollars, but the state will give them only 97,000 dollars of that. So partial funding in Wisconsin and North Carolina provides full funding. 140,000 for each appellate court candidate, 200,000 for each Supreme Court candidate. Third question, what candidates are eligible, which candidates are eligible -- that is, who are the serious candidates. In Wisconsin a candidate must raise 11,000 dollars in increments of 100 dollars or less to prove that he or she is a serious candidate. In North Carolina, a candidate must race 33,000 from at least 350 contributors, with a limit of 500 dollars per contribution in order to show that they are a serious candidate. Fourth question, what conditions are imposed on candidates? Well, in Wisconsin, you must agree to the 250,000 dollar spending cap. In North Carolina, you must agree to spend no more than 69,000 dollars in the primary, with any excess contributions going into the public fund. In the general election, you can spend no more than 140,000 for appellate court races, 200,000 for Supreme Court races, plus any funds that you have left over from the 69,000 that you didn't spend in the primary. Candidates who do not opt into the public financing system are limited to contributions of 1,000 dollars. That's down from the 4,000 dollars previously. Five, how can excess spending by one's opponent be countered when that opponent opts out of the public financing system? In Wisconsin, the recipient of the public funds is released from all spending and contribution limits, but will continue to receive the public funds. In North Carolina, they would give what are called rescue funds up to twice the original amount to those who are facing candidates who opt out of the public funding system. Six, how should these revenues be generated? In Wisconsin, they have a one dollar income tax check off system. So when you do your income taxes, your state income taxes, you can check the little box and one dollar gets donated into the fund. Not unlike the Presidential election campaign fund that you do on your federal taxes. In North Carolina, there is a three dollar state income tax check off, and also optional contributions of 50 dollars from attorneys when they renew their annual license.

Of course the North Carolina system has not started yet. We don't know how [if] that's going to work. However, the Wisconsin system is in deep doo doo, as former President Bush would say. The taxpayer participation in the one dollar check off system has declined from 20 percent in 1979 to 8.7 percent. Less than one out of 10 state taxpayers are opting into the system. Thus the fund has not had sufficient resources to provide candidates with the maximum 97,000 grant to which they are entitled. In fact, grants have generally averaged less than half that amount, about 45,000. Consequently, large numbers of candidates have simply opted out of the program. 45,000 dollars in a competitive election is not going to get you very far. In the 2000 campaign, there was a combined total of 27,000 dollars available in the fund for the two Supreme Court candidates to split. That's 13,500 apiece. Hardly worth opting into that system for.

Consequently, not only do many candidates opt out of this poorly funded system, it is also the case that Wisconsin's partial funding plan still does not remove the appearance of a conflict of interest. Even if judges were to receive the maximum 97,000 dollars allowed by law, they could raise from private sources another 118,000 dollars from lawyers, insurance companies, interest groups and others who are likely to appear in that judge's courtroom. Now North Carolina hopes to remedy these faults by, first of all, providing for full funding rather than partial funding in order to remove even the appearance of a conflict of interest, and secondly, to provide for a duel type of funding -- attorneys fees and income tax -- in order to pay for that system.

Will Nevada be adopting public financing of judicial campaigns? No, it's not going to happen. The fact is, if I could look into my crystal ball -- in fact I don't even have a crystal ball, [but]I can tell you that that's not going to happen. It is not going to happen for a number of reasons. One reason is that most people, I think, do not perceive that a problem even exists. And secondly, the fact is that it's a very expensive proposition. In a state that is going through difficult budget times, it would be incredibly expensive. Let me just give you some simple figures. There are currently in Nevada, right now, 56 District Court judges. That counts Family Court. Fifty six District Court judges and seven Supreme Court justices. That's a total of 63 judges. Let us assume that in each one of these 63 races over the course of a six-year period, that you have -- you have two candidates per seat, and you give only a hundred thousand dollars. That's low, but let's say a hundred thousand dollars. That would cost over the course of six year terms of District Court and Supreme Court justices 12.6 million dollars. That's only at a hundred thousand dollars, which as we said is very low. Now not every race is going to have an opponent, obviously, but we can't predict in advance which once will and which one's won't. Even if you publicly finance only the 7 Supreme Court justice races, again if you gave one hundred thousand dollars to each candidate, and there were two candidates in each race, you're still talking about 1.4 million dollars. It is unlikely that the state's voters who won't even approve an intermediate court of appeals because it costs too much, and who are generally anti-tax and anti-spending, it's very unlikely that those proposals would ever be accepted in the state.

Furthermore, you have the problem of how you would fund this. We don't have an income tax in Nevada, so you couldn't check off a box on your income tax form. You could pay for it presumably out of court fees, but a lot of these court fees are already promised to other programs, committed to other programs, such as domestic abuse programs, and things like that. Of course the other possibility would be, you know, attorney license fees. But again, would those generate the kinds of monies that you would need for a program of that type? It seems pretty clear that this money would have to come out of general tax revenues, and that I think alone would doom it to any sort of passage. So, I have gone on, I took some of Mr. Mitchell's time, I think, but I will stop there and respond to any questions after we get through here.

TED JELEN: Our next speaker is the honorable Nancy Becker from the Nevada State Supreme Court.


Judicial Elections and the Ethics of Political Campaigning

Nancy Becker

NANCY BECKER: Thank you. Well, I've been listening to all of the debate today and none of them are new to me. There's one fundamental question that has to be asked, and that’s -- what is the role of the judiciary under our form of government? And we've heard words like accountability as though an election is a means of accountability to the general public. We've heard the concepts of the merit selection and qualifications for upholding the office. But when you look at when this country was founded and what's made our country unique in the world, our system of government, it's the whole concept of an independent third branch, called the Judicial Branch of government that is supposed to be independent of the Executive Branch, which are the people who enforce the laws, and the Legislative Branch, which are the people who create the laws. You cannot be independent if you're beholden, period. I don't know if you're beholden to a special interest group. I don't care if you're beholden to people who contributed to your political campaign. I don't care if you're trying to cater to the press. I don't care if you're trying to cater to the attorneys. That just doesn't jibe with the concept of an independent judiciary and the reason that our founders thought that an independent judiciary was so important was because they saw the role of the judiciary as being four things.

One role of an independent judiciary is its -- our -- duty to prevent, or to be a check against, abuses of power by the other two branches of government. Abuse of power really is: are those two branches of government exceeding their constitutional limitations? Are they getting into things that the Constitution says they're not allowed to do, whether that's impeding upon the individual rights of a person. For example, in an eminent domain case, it's our job to ensure that before the Government can take your property, they must have a public purpose, and they must pay just compensation for that property. The Constitution itself gives the Executive Branch of government the right to engage in eminent domain, the taking of individual property for a public purpose. That right is in the Constitution. Both the state Constitution and the federal Constitution. It isn't up to the judiciary to suddenly say, hey, we don't like this concept, we're going to throw it out, because that would be violating our authorization. So that's one of the primary purposes.

Secondly, we're supposed to protect the rights of citizens from abuse of power by a majority. Everyone has certain rights in this country that cannot be taken away from them just because a bunch of people got together and voted and said we don't like you. And that's something that the courts are designed to protect against. We're supposed to provide a fair and impartial forum for persons to settle civil disputes. We're not supposed to have judges who are pro plaintiff or pro defense. And by the way, insurance companies do not contribute a lot of money to Nevada's elections, it's more proportionately trial lawyers. Who does contribute? Construction companies, labor, either in money or in kind contributions. They're the persons that are going out and pounding those signs up, or distributing leaflets door-to-door. The gaming industry is a big contributor. Doctors probably more now than they ever have in the past, but they haven't in the past. Plaintiff's lawyers. You know, these are the people who are the big contributors to campaigns.

Judges are supposed to provide a fair and impartial forum for determining the guilt of a person accused of committing a crime. The concept of guilt beyond a reasonable doubt means it shouldn't be easy to convict people. It shouldn't be a situation of, well, hell, let's give him a fair trial and then go out and hang him. That's an actual statement, by the way, from a judge from the Old West. That's not what judges are supposed to do. But if that's what the people want judges to be, they can go right on as they have for the last 50 years in making the judges' races. The issue is election process [as] a political process. Whether it's the parties trying to stack the federal courts through the appointment process, whether it's special interest groups coming in to try and elect or defeat judges who support their particular point of view, no matter what the facts or the situation, including the popularity contest. "Hi, I look good on TV."

We have gotten away from the concept that you want judges both to have the ability to do the job, the integrity to do the job, and the independence to do the job. Accountability doesn't mean gee, a majority of the voters don't like you because you decided that separate and equal was no longer a valid doctrine. But that's exactly what would have happened to an elective judge or a judge who had to come up for reappointment in any state of this United States. If they had to say, "You know what, separate but equal doesn't work, because it's never equal, and it never has been, and it's time we stop fooling ourselves and we start looking at a doctrine that's different."

These issues are not academic or far removed in time and geography from our own history in Las Vegas. As anyone who was born and raised in this town knows, Jews were historically excluded from the establishment or put on its periphery. It was also a very racist town. I was born here. People talk about, you know, the big changes in the traffic and things like that, but that misses the bigger picture. I'm much more proud of the community now than I was when I was growing up because of the changes in racial and ethic attitudes in Las Vegas and the decline of prejudice. I'm proud of similar changes in the State as a whole. But those changes could not have been made without the federal judges who weren't subject to the people's will in making a decision. So there's that balance. When you talk about accountability, you're not talking about accountability because we don't like your decision, we're talking about accountability because you don't come to work on time. Because you can't be fair and impartial. You are always pro plaintiff, or you are always pro defense, or you're always pro gaming. That's the kind of accountability I'm talking about. That looks like you're a person instead of making opinions on the basis of facts and objectivity and recognizing that life is not black and white, and no issue ever is.

That's what I think people want in judging. And you know, you can hear all sorts of sound bites, pro death penalty, anti death penalty, whatever someone thinks is the "in" thing -- domestic violence, DUI, tough on crime. Those are sound bites. They don't tell you anything about the candidates. They don't tell you anything about the issues.

In my opinion, number one goal is to preserve an independent judiciary, and then you design a selection process whether it's appointed, appointive retention, or elections, to promote that concept. So let's look at what it means to be fair and impartial. I've already talked about the concept that you don't want judges who just think in black and white. Life isn't like that. There aren't absolutes. And the law doesn't deal in absolutes. So you're going to have to look as a judge at a decision and it might be a decision, for example, and I'll take a controversial issue, you know, gun control. I get asked that all the time. What's your position on gun control? Well, if I answer that "yes or no," people are going to infer I'm in favor or I'm not in favor, they'll infer that it's a commitment, that if I'm elected and continue to be on the bench, I'm going to vote one way or another if that issue comes up in front of me. I never answer questions like that. Because to me that's making a commitment, a promise, and if I make that kind of promise, I can't be sitting on the case. I've already prejudged it. You don't want me on a case that's been prejudged. If you're the litigant, you certainly don't want that.

I understand that people want to know about me and how I look at that issue because it's important to them, it's an important issue. So how I answer it within the canons of judicial ethics. Because the canons of ethics -- we've already talked about the recent Supreme Court decision, that decision talked about announcing your position on issues, and I think that it's clear that the term "announce" is a pretty broad term. The Nevada Canons of Judicial Ethics talks about comment on an issue that may possibly come before the court. Well, it's not much narrower, and I don't know if that provision could survive enforceability under the current Supreme Court law. It's not clear. Because the Supreme Court still left open the issue that judges shouldn't be making promises or commitments about how they're going would rule in cases.

To me what that means is when I'm asked about gun control, I can tell people, look, the Second Amendment does not say I have a right to own a gun. That's not the exact language of the Second Amendment. The Second Amendment talks about that the right to have a militia, which is a citizen army, should not be impaired. Now that clearly implicates issues of gun control.

There's no doubt that that's an issue that has to be considered. What I have to do is I have to look at what the United States Supreme Court, because they're the ultimate judge of what that means in the federal Constitution. I have to look at what other federal courts have said, and I have to look at an individual statute. How far does the statute go, does it ban the ownership of all guns? Does it simply say you have to register a firearm? Does it say that certain types of guns can be banned, and how does that relate to the amendment? I can't answer that question. I can't tell you this is how I'd rule, because I don't know. Until those legal issues are presented to me and fully briefed, how can I tell you? How can I know if I don't know what the statute says? What I can tell you is that I don't have a problem with people owning guns.

To me that's not the issue, the issue is whether or not the Legislature -- because it's not my personal belief that matters -- I'm not a legislator. If I want to go out and make those decisions, I should run for governor or legislature. The issue is can the Legislature do that or is it overstepping their bounds under the Constitution. What I'm trying to do is give you an example of how you ethically answer a question and discuss an issue and you can discuss it in depth without making a commitment or a promise. You can let people see you as a person, because the more you talk, the more they'll know about you. That's better than a sound bite like "I favor gun control" or "I don't favor gun control." Sound bite judicial campaigning is bad because when you do it, either you've already made a promise, or you're lying to get a vote. It's one or the other. And that's not something that judges should do, and I don't think that [is] still permitted under the canons of judicial ethics and elections.

We have at least touched upon partisan elections today. Well, you know, the whole view of partisan is all of a sudden you're not independent and impartial anymore. If you're running on a party ticket, you're running on a party ticket. It's simply inconsistent with the concept of objectivity. Not to mention that you may be a Democrat or a Republican in terms of how you registered to vote, but you may not agree with all of your party's positions on every issue; so it really doesn't tell you much about a person. It tells you about a party slate.

Who's supposed to elect the judges, the party, or is it the people? So I don't think that partisan elections are a good idea. If what you want is an independent judiciary. Because a party, whether it's Democrat or Republican, or Independent, takes the position and they want their judges to rule in favor of those positions. It seems to me inconsistent with the concept of trying to be independent. You don't want judges making decisions on the basis of public whim or popularity. "If I rule this way, I'll get re-elected." And as long as the voters encourage that concept, you will have judges that think that way, and they will in fact rule that way. And we do in fact have judges who rule that way throughout the country. So it seems to me that if you're going to elect judges that the issue is how do we narrow these influences.

Public funding of campaigns -- of judicial campaigns -- will only work, one, if you can effectively deal with the constitutional issues. Wisconsin's plan has never been subjected to a Constitutional challenge and whether or not their limitations on spending -- you get the money if you agree to limit your spending -- will work. [This] is an issue. Because the United States Supreme Court says you can not constitutionally limit the amount of money by regulation, by state law that a candidate spends on a judicial campaign. You can limit the amount they accept from any individual group, or an individual or a business entity. You may be able to, and we'll find out in the next few years, regulate soft money, that is special interest groups buying in on behalf of the candidate. But there are limits to what you can do in terms of campaign financing reform under the Constitution.

Whether I agree or disagree with all of the rules of the United States Supreme Court on those issues, they're the rulings, they are the law of this land. So that may be a method if we can fund it, but realistically, if you can't fund it, it's useless. And it doesn't prohibit the regulation of outside influences coming in and trying to put judges in who are conservative or liberal or pro life or pro choice, whatever division you want to take. And that is one of the things that's going on in appellate races, Supreme Court races, throughout the nation -- that people who don't live in the state are bringing huge chunks of money to get their people elected. You really can't prohibit that effectively at the moment. It does cost money to get your message out. I don't even mean a sound bite message. I just mean to have a website, to have informational sheets printed up about yourself that tell people who you are, to be able to do the kind of television or radio advertising, a mass media type of thing. That costs money. And if I want people to vote for me, I better dang well get out there and tell them about myself. I shouldn't just sit back and say, "Hey, you know, I just think you're going to vote for me because I'm the incumbent." I don't want to make that mistake. It may happen a lot of times, but it's very foolish thing to do.

One of the things that the Nevada legislature looked at last session, and may look at this session as well as an additional method of looking at this, is to limit the period of time in which judicial elections can raise money and from that standpoint you have to limit the filings. Right now, you have from January to May -- there's like a five month period -- filing doesn't end until May. If you're running for judge, you know, start raising money in January. You're not going to wait until May to find out if you've got an opponent. It's just an unwise thing to do. Now some judges do, and I applaud them for it, but it's not the smartest thing to do in terms of do you want to be reelected? One suggested reform is to narrow that amount for of time for declaring for office to a three week time period in January. Make sure everybody knows that's what it is. So if you're going to run for judge make your decision, let's move on. People who aren't opposed then cannot raise money. They got to wait three weeks. You don't raise money after that fact, you don't have these big debts. That's one way of trying to take it out -- and in a contested race, you have to do as much as you can through the campaign financing reform.

One of the things that a candidate should do and that you should look at is how do they spread out the money. Hopefully you're trying to get as much money from as many different sources as possible so that you're not relying too heavily on one source of money. That's not always possible. Because people don't generally contribute to judicial races. The average citizen doesn't. They just don't think about it. But that is one way that you want to spread it out. Try not to take all your money from a particular source, or half your money. Try and spread it out as much as possible. Look at the amounts that you're taking from any given entity. If you're taking a certain amount of money from a very large business, but it's a small amount of money in comparison to the size of that business, it's a little bit different than taking that same large amount of money from a single individual and then sitting on that individual's case.

The appearance of impropriety is going to continue any time you accept money. I understand that. That's just one of the issues. You, as I said, be wary of people with sound bites. Try and get a candidate to really talk about the issues. Not to commit to an issue, but discuss it. What are the legal factors that play into it. What are some of the things that the United States and Nevada Supreme Court have said about these issues. If this is an important issue and they can't discuss that, then you need to say to yourself, you know what, if this person hasn't been able to take the time as a candidate to really look into this issue and knows it and can discuss it, then maybe I don't want them as a judge. If it's not important enough, then maybe I need to think about it. And do it on more than one issue. So in terms of the fundraising and those kinds of issues, those are some of the things that have been talked about.

You try and raise this much money through general solicitation. That means you send out a general letter, you don't make personal phone calls. You try and get other people to do fund raising for you. Nevada is unusual in this respect. Most of the canons of judicial ethics say that you must raise money through a committee. Nevada does not. The reason that Nevada does not is because Nevada is a little more honest about it because raising money through a committee and pretending that somehow or other you don't know what money is coming in and who it's coming from when you've got to find the campaign reporting forms and when they're public knowledge it's just silly. So what we say is we encourage you to do it as much through committee as opposed to personal solicitation. But we don't just create a standard we know everybody's sort of ignoring out there. Because, why do it? There's no point in creating standards it becomes a matter that's ignored.

I've always had a rule of avoiding large donations from people you've never heard of. And when you check the court records you suddenly discover they have a case in your courtroom, or have suddenly filed an appeal to the Nevada Supreme Court. You just send it back because clearly it just arrived unsolicited, it wasn't part of a general fund raising party that you've had, you've never heard of this person and suddenly you get a check for ten thousand dollars. Now, you know, I think, any reasonable person kind of knows that "hey, you're trying to buy my vote." Candidates should exercise at least this level of scrutiny in receiving contributions. If you don't disqualify yourself in a case under circumstances where your campaign contributions are such that you really can say that this person probably has an appearance of impropriety and should disqualify yourself, than that can be a violation of a canon. But that's very difficult to prove because there's no standards.

The National Center from the State Courts just got done conducting a survey, and it's dealing with this whole concept of judicial selection, whether it's appointment, retention and so forth. It focuses primarily on judicial elections rather than on the appointive process, and these are some of the things that they're recommending. They do recommend that elections be conducted in a nonpartisan manner. They tell you that if you have a state that has a short term of office -- they don't define what that is, whether that's four years or six years, but maybe you look at, at the term of office for judges and you say to yourself, "Well, maybe the term should be a bit longer if you're going to have elections; so that you don't have elections as frequently, and therefore they don't have to go to fund raising issue as frequently." But there's no suggestion as to what's short. I just received this yesterday, so I'm -- they give more depth later. But that's one concept.

It has been suggested that people are being appointed to fill vacant positions and allowed to serve a certain period of time in office in order to see what kind of a judge they are going to be before they come up for election. The National Center for State Courts also stresses that you've got to have educational programs to the average voter. There's got to be a better mechanism, and it's not just individually going to voter meetings or conducting a forum like this, it really means that the bar associations, the government associations, the media, have to start promoting a concept that this is what you want to be looking for, these are the questions that you want to ask. And this is how you want to start getting judges to discuss the issues. If you want to have a public debate, don't phrase it for sound bites, phrase it to find out what this person really knows about this issue and what they know about, how would they analyze it. Not because you want to get a feel for -- is this person going to rule in favor or against, [but] because you want to know if this person has any idea about the complex issues of the law.

You want to be wary of judicial candidates who just come back with a sound bites: "Every person that commits murder's going to get the death penalty, every person. Or the death penalty is absolutely immoral." Well, if you've got people who truly believe that, neither one of those people should be a judge. Neither one. Because they are absolute situations, they're not in accord with the Constitution, one way or another. Either you're substituting your personal opinion -- again, that's for the legislature to do, it's not for the judges. So that's not what you want is debate. You want to be able to discuss the issues.

Another suggestion for reform is that non-governmental diverse groups that should monitor the election process and help out with the local bar associations and community organizations to start promoting a concept of judicial elections. What you want to look for in a judge. How you find those things out? Publishing surveys and questionnaires that are not designed by a special interest group, but are designed to look at the judge's knowledge, background, familiarity with the issues. What has that judge done [for] this the community, that kind of educational process.

Another suggestion is that campaign contributions and expenditures be disclosed in timely fashion and be readily accessible. In the final analysis, it's a matter of educating the public that if you want a judiciary that's just going to vote in your favor, what happens when you're not the majority? You either want an independent judiciary or you want somebody who's going to be like a legislator or a governor who's going to represent you. If you don't take steps to protect judicial independence and voter information in an electoral system, you may not have a true third branch of government. You don't want a false sense of judicial independent. You don't want judges who are not impartial or who are under the control of the power mongers or interest groups.

TED JELEN: These are the recent candidates for the judiciary, and we will start with Dianne Steel.


Evaluating the Judges: A District Court Judge's Perspective

Dianne Steel and Nancy Saitta

DIANNE STEEL: I have some strong feelings about the Clark County Bar-Review Journal Survey evaluating judges and how that impacts the community. So I hope that observations I'm making are understood and taken in the light which they are given. I heard a previous speaker speaking before I started to speak, and with regard to elected versus appointed [judges], I would never have been appointed. I went to law school, I came to Las Vegas, I didn't know anybody here, nobody would have ever -- I don't shine out, you know. So I just ran for office and fortunately, through some wonderful circumstances, I won the election.

During the first election, I went around to all the attorneys and I said, "What do you want in a judge?" Tell me how I can serve you as a judge. I went around to the people. "What do you need in a judge? How do you judge -- what do you think is a good judge." And I got back all kinds of answers, you know, we need this, we need that. But the things that people really focused on was civility: "I want the attorneys to be civil to each other, and if they're not being civil, some judge [should be] controlling that circumstance and sanctioning those attorneys in court for not being civil to each other." So I wrote that down.

Equality. The attorneys would come to me and say, "I only want to have an equal opportunity, if I have an order shortening time or something I just want to be able to make sure you'll read it and make a righteous consideration. I wrote that down.

Sanctions. If attorneys are late getting their orders in -- "You know, Judge, I got divorced last year but my attorney won't write my order, and so the judge hasn't signed it yet, and I've been married now for another six months, and all these things are happening, we can't sell the house, we can't do all these things; so I want my order done in time, if it's not done in time, I want you to sanction my attorney." So I wrote that down.

The Clark County Bar-Review-Journal Survey produces things like "That judge is horrible." Now I don't know if any of things played into it. I don't know. So I took it to heart. I sanctioned the attorneys for doing the wrong things, for not turning in their orders, and for not, you know -- but the thing is I treated everybody equally. They said I want an equal chance, I gave them equal consideration. I did everything that they told me do. Okay? So they didn't know me very well, and you know, I really don't have any hard feelings about some of the comments that they made as far as my abilities or whatever, because I'd never practiced before. I just became a judge, almost as a first job after becoming an attorney. So I took their comments to heart, and I tried to work harder the next time to obtain a better evaluation in the Survey.

The very first time that you're running for office and your most recent Survey evaluation has come out, you run to the newspaper in the morning and you read every word in that paper and you are you just don't know what to do. I don't get good reviews. I don't know why. I'm not going to lay it on any kind of a theory. I'm not going to say there's a cult against me. I don't make good reviews in the newspaper, period.

I write these letters to the editor. I write pages and volumes. I spend days. Have you ever gotten them? No, never. I just write them. Just to make myself feel better about why it happened this way. You have people coming up to you saying, "Don't worry, you're going to win. And you don't need any money from me because I'm going to give money to those people who really have real challenges. You're going to win." I did the silly thing that Justice Becker was talking about earlier. I waited until I got an opponent, which was on the very last day of filing, and of course by that time all the money's gone, including the soft kind. So I won't do that again.

I'm not going to take long because I've written them down, and so they're pretty concise. Mostly what I have are questions. I don't have any answers. I don't know what -- I agree we need to -- people need to know about us, and they need to know who they're voting on, what kind of personality, if I'm an honest person, if I'm a biased person. They need to know these things about me, and I don't know how to get it out there. I really don't have the answer as to whether or not the judging the judges poll is a good thing or a bad thing for the public, but I have a couple of questions. If a judge were to take a secret ballot during a case and rely on that information to come to the conclusion that a person was guilty of murder or negligence, or should or should not have [custody of] their children, the whole town would be outraged. They'd be throwing that judge off the bench, tomorrow. Isn't that kind of what's happening to us? We're being judged by our colleagues. They write a secret ballot on everybody. Somebody totals it up, and they say trust the secret ballot because it's secret, and give this judge your nod or not. Where's my right to a fair hearing and my right to appeal if I don't think that the survey came out right, if I think maybe somebody was dishonest in their response? Where's my right to find that out for sure, where's the public's right to find out for sure?

There are two things that they grade you on in these polls. The first thing is your adequacy, whether or not you know the law one way or the other. And you're going to be surprised to know that 53 out of 58 judges rated 75 percent or better. That's not bad. We don't have any D's or F's. We had a couple. But mostly we got C's. But in spite of that, 58 judges go into that ranking. The Survey currently is more of a popularity rating than it is a competence or performance rating. What service is the public getting in this instance when you're only given popularity rating and that's the one that's been broadcast out there? How can the same attorneys be so close on some judges and so far apart on other judges? I mean, you've got the same attorneys doing the same survey. What, if anything, do we actually know about the attorney who tendered his opinion about a judge, the people that are out there judging the judges? Did the attorney rating each judge have one case or more in front of that judge? Did the attorney lose his case on an issue of law on which the attorney may have been wrong, but now he thinks the judge was wrong? How do we know? Did the attorney lose his -- who determines the legal knowledge of the attorney who rendered his secret opinion of that judge. Is that attorney a stellar attorney, he's the brain trust of the attorneys, or is he just somebody that's just marginally hanging in there? Has a judge ever been sanctioned or ever sanctioned an attorney personally for inappropriate conduct in court and now he's judging that judge? Is that attorney planning to run for office like maybe mine? Did that attorney lose a previous race against that judge?

These are questions that lack an answer but for which we deserve an answer. But the judges don't know. The public doesn't know. The newspaper doesn't know, even though it is happy to publish the pithy negative quote. So why is the Clark County Bar Association sanctioning this? Why do we have a bar association that is supposed to not demean the judges sanctioning something which in many cases demeans the bench. Would the Clark County Bar Association sanction a survey of this nature giving it legitimacy and a presumption of accuracy if the judges were to be judging the attorneys? They are or they are not prepared for court. They do or do not have an understanding of the law. I think that would really impact their income if the judges were to name names and give ratings along the same framework.

It's just basically the survey is kind of flawed or it's capable of being flawed, and I really think the first couple times the survey came out, it was more legitimate than it is now because people know how to maneuver it. And that's a shame because I think it could have been a really good tool, and it probably still is in some respects, but I'm just really concerned about the way that it's presented. And just to give you an example, my opponent in my last race -- this is the from-the-trenches part of it -- used the Review-Journal Survey as his only reason to run against me. That was his only reason. This young man had been an attorney for a year and a half, been in Las Vegas for two years at the time and said, "That poll convinced me I needed to run against you." He had never been in my courtroom, he never worked with any of the litigants I've ever been involved with, didn't know one thing about me, never even said hello to me before he ran against me, because he based it one hundred percent on what he read in that poll.

There was no disclaimer in any of this candidate's material, no noting that the Survey is not statistically [reliable]. The attorneys that I talk to say, "Oh, I don't even do that thing. I don't have any problems with judges." So I don't have that input from the attorneys. Neither does the public. I don't know the answers. I just know the problem, and it was very uncomfortable for me when the attorney wrote the things that he wrote about me, never even knew me but relied one hundred percent on the polling documents. It made me very uncomfortable from the trenches. And even though I was the favorite, even though I won 70 percent to 30 percent, it doesn't change the fact that some people out there think that the survey results represent who I am, and that makes me feel sad. Don't know any other way to say it.

TED JELEN: Another view from the trenches, Nancy Saitta.

NANCY SAITTA: I want to make a disclaimer right up front. I am not related to the Saitta of the car dealership in town. This has actually come up during the course of campaigning. People either assumed immediately that I was somehow related to the car dealer. And they assumed a couple of other things that were involved in that erroneous assumption. I should also disclaim up front that my first opponent was Judge Steel. She beat me in the primary. We have long since discussed this irony and how fortunate we are to both be on the bench today. Number one, I was going to be well funded because of this assumed relation. As a result, fund-raising was always difficult.

My first campaign as well as Dianne's were largely grass roots. It was at the time that I decided to run as a government employee. I was married to another government employee, and so I was also at the time raising four children, three of whom were in college, and so it was rather difficult, as you might imagine, for me to have any funds whatsoever. Which leads me to I think, and I'm going to combine my two topics, I hope, the two topics that I'm discussing, so I hope it's okay, and as the last judge to speak, I think that might be what you want to hear, you know. Should we be elected?

I spoke with one of our county's finest attorneys yesterday on this exact topic. That attorney is present here today. And I said that whether or not I felt we should be elected was probably an issue that should be left to those who decide the process by which they want the judges to become judges. Not me. But that I compared the process to, I hope, a well known fable, Emperor's New Clothes. You know, we walk around and as the fable goes we look at the parade. But as the fable goes, the Emperor had no clothes on as he paraded through town. I think that's my recollection of it. But nobody would tell him that he had no clothes on, because guess what -- he's the Emperor. Let me tell you something -- as a judge we operate in the very same place, day after day after day after day. That is troubling to me.

Let me go back historically and tell you that while I'm proud now to be in a second term, I was so elected through a contested election. I was appointed to the lower court in the city by the mayor. And I have now run unopposed. So I kind of have a little bit of different place to talk to you from, I hope.

I was appointed after I lost to Dianne Steel, literally within weeks of my [defeat]. I cannot tell you definitively how that appointment came about. I have a pretty good idea. But again, that would be my speculation. And I'm going to tell you something -- I was never brave enough to go to the people who nominated me because I wasn't sure that I wanted to know why I had become the lucky recipient of that appointment. Was it a particularly influential position? No, and that's why when the first offer, that appointment, came to me, I responded that I did not want to be on the city court. My background has always been in the area of abused and neglected children, and I ran for the family court because of that interest. So when I was appointed to the city court, I couldn't begin to value what I could bring to that position and I thought it was better left to someone that was more qualified than I. I learned, after having tentatively refused that appointment, it was real stupid to refuse, and I promptly called back and said, "Thank you very much for this appointment. I would be glad to accept the appointment. I hope that I can make you proud of the appointment that you have made, and I can promise that I will do my very best to learn about what it takes to be a judge and hopefully apply that knowledge in a way that will make you proud." As well as, by the way, the rest of the state, okay, for whom I was then going to be in the service of.

The reason I didn't ask why I was appointed or why that person made that appointment was because I didn't want to be beholden, and if there was something attached to that appointment, I didn't want to know. That's the truth. To this day, I don't believe that I've ever had that card called. At least I'm not aware of it. If there was a card there that was called, I missed it. At any rate, I then ran for an election, again a contested election, to the bench in the District Court. And I have never in my entire life, except for raising four of my children, worked harder in my entire life -- the hardest job I ever had. It continues to be hard now, five years into it.

We have an obligation as judges to continue to learn and educate. That requires us to be in court and continue our education. It requires us not to be beholden to anyone, and furthermore it requires us to somehow try to separate ourselves from the ugly, ugly, system we must submit ourselves to. I take very seriously what I do. I can't think of too many greater honors than to be able to be a part of the judiciary. I have to maintain that position by the process that is here in Nevada. That means you have to be elected. You have to raise money, you can't get you heard us all say it you can't get your message out unless there's some way to do it. It costs money. But one of the things that I think we all need to do and everyone one of you as voters or as members of the media should hold us to, especially as attorneys, members of the public is that we should prove ourselves every single day in court.

Many times, of course, including today, I do not have a court calendar. Does that mean I didn't do judicial work? Hardly. I did judicial work today before coming to this program. I did it last night after I got home from a dinner that I attended. I will do it again tonight. Much of a judge's work -- researching, writing, organizing, and deciding -- takes place outside the public eye. Unfortunately, many voters do not fully realize this and do not appreciate the long working hours actually logged by judges at all levels.

I also just recently set up a brand new court in the 8th Judicial District, or section of the court, that deals with construction defects. That's anther part of the judicial role that is often overlooked. Judges serve the community in many ways in addition to presiding over live trials. Today, construction defect cases do not pose the harmful logjam they did for the Eighth District just a year or two ago. In addition, I used some of my excess campaign funds to attend a seminar in Atlanta on the issue of mold damage -- a key point of controversy in many construction defect cases.

Should we be elected? I believe we should not because of all the frailties that an election creates. Is there a better system in Nevada right now? No. I think we need to keep thinking about it and we need to keep putting it on our agenda. Should we be should we be reviewed and subjected to the survey that we have in the RJ sponsored by our bar association? Should we be reviewed? Absolutely. Should your bar association be behind that review? Absolutely. Should it be something that we can somehow contain and balance better? Absolutely.

Once, as a new judge in municipal court, I suggested that we put a box inside my department, the courtroom, that asked for comments on judicial conduct. And at the judges meeting where I made that suggestion, after the loud gasp of air, and people were telling me, "Why in the world would you want to do that?" I said, "Well, how else are we going to know what kind of a job we're doing." And again, if you were the educated group of judges sitting around that table, at least half of them were educated, said you know what? You really don't want to know. Well, you know what? Yeah, I do.

Now again I'll go back to that emperor's new clothes. Sometimes it's a dicey thing for attorneys to do, but I want to know how I'm doing. And I want to know it every year, or every minute that I sit on the bench. Finally, let me close by telling you what I do with my judicial contributions during a campaign year. Justice Becker is absolutely correct. Do we -- should we suggest to you that we don't know who contributes? We better know because it's on our contribution form. But I have a rule that was suggested to me by a former candidate, many many years ago, when I first started this process, and she told me, "One thing you never do is take your contribution directly. You never open a contribution from someone." Okay? That means you must always have someone with you who can take that. Okay? Now the obvious. Okay, well, what am I going to do? I mean after we leave the event, can I go over and say hey, how much did so and so give me, of course I could. Do I? I'm answering no. I also have an accountant who does all of my calculations, and he appears at the bottom of my information [form]. All contributions are sent to him. If they come into the office, which anyone will tell you, when people try to bring contributions to chambers, they, of course, never get past my secretary, under any circumstances. She takes the envelope and immediately put into a brown envelope, and it is forwarded to my accountant who then puts it into the mix.

Do I look at those who contribute to my campaign when I sign my form? Of course. Of course. Do I look at numbers? Of course. Do you honestly think that I won't? No. Does it influence me in the courtroom? If I could remember all the people who gave me a contribution every time I heard one of their cases, I wouldn't have to work as hard at being a judge, because I'd have a way better mind than I do. Now on the other hand, do I know that certain firms typically contribute? Yeah. Does it influence me? I hope not. Because our job, as I think has been adequately pointed out, is to take the facts of each unique case as it appears before us, and then apply the law that is created either by case law or by our legislators -- apply that law to that case.

If I'm doing my job well, whether or not there was a contribution, the amount of that contribution should not figure into that equation. It's just that simple. Sadly, I also made a disclosure once about a person who was a chairperson of my first committee, and I wanted to recuse from his case: We're not going to be able to -- we're not going to be able -- I'm not going to be able to hear your cases when I'm on the bench. And he looked at me as if I had just come from Mars and said, "What, are you crazy? Of course you're going to continue to hear my case if you're elected." I came from Detroit where things were a little different. So the good news is it was my first election, and so I didn't know what the process was, but yeah.

We also do bring personal biases to the bench. We need to be able to set them aside and we need to be able to reach higher -- we have a law here in the state of Nevada and every other state does of course, federal law overriding our state law. But you know what, no matter what my beliefs are about gun control, the death penalty, about abortion, I better be able to set them aside and apply, once again, the law of the state in which I'm on the bench. Now if you ask me what my pinion is -- I'll use the same example, if you ask me about gun control -- I'm going to tell you what the law in the state of Nevada is as it relates it gun ownership, as it relates to whether or not you can carry a gun on your hip. I'm going to tell you that. [If] you ask me whether or not I believe that somebody should be able to carry that on their hip, it's not a question that I'm going to answer. Because, first of all, it doesn't mean anything what I believe. It means there's a law, I
better be able to enforce it, and I better be able to enforce it as uniquely applied to the facts and circumstances of the individual case that comes before me. It's just that simple to me.

Is our system free of problems? Not by a long shot. You look at some of the stuff that comes before -- that gets in the public record, you'll note that there are a number of unopposed judges who have accepted very large campaign contributions after they knew they were going to be unopposed from some pretty obvious special interest groups. Everything you do, most everything in the public domain for you to be looking at and you should continue to question it, and you should continue to hold each and every one of us accountable, and you do that by finding out how we do our job in the courtroom. You find out whether or not we do work in the community that you think is appropriate for a judge to be doing and you better be sure that the attorneys who appear in front of us are able to tell you whether or not we are learning the law, whether or not we are making the efforts to become educated because that's how you deal with the system here in Nevada. We are elected -- it's a good way to put -- to get a judge on a bench, in my personal opinion, but that's the system that we have. So we deal with it. Is it the perfect way to do it? No. Until we have a perfect system, that's the way we will continue to do it. Thank you.


Improving Judicial Selection Process
Ted Jelen

TED JELEN: I want to address the concern that has been expressed today about the relationship between public opinion and the judiciary. Underlying everything we have discussed today is the relationship between public opinion and the administration of justice. A number of our speakers in one way or another have addressed the question of whether the quality continues to be good enough or manipulated by the survey in the newspaper, whether it's tainted. Others have wondered whether the public has the expertise to make these evaluations and to prudently choose among candidates for judicial office -- right across the board. Is the public equipped to make the judgments that we ask them to make when we elect members of the judiciary?

I want to take a slightly different tack on that and suggest that the independence of the judiciary -- and I'm going to throw in with those who think that judges ought to be -- appointed actually has an effect of the quality of public opinion. Okay, so in other words, for those of you who have a social scientific bent, I'm looking at the quality of public opinion as a dependent rather than an independent variable. In a democracy, that public opinion be informed -- that is the reason we nominate the judges, and so on? We also require that public opinion be uncoersed. For example, a couple of months ago there was an interesting item in the newspaper, Saddam Hussein was re-elected by something like 99 percent of the "electorate" in Iraq. This is of course a shock to those of us who study comparative politics. Many of us would quite legitimately question the authenticity of that election.

What's the problem with the "Saddam landslide"? Was the problem that he didn't have an opponent? Well this gets a little tricky, but if that's the problem, then I've got a couple of other people who have the same problem, and I would certainly hesitate to equate members of our panel with Saddam Hussein. It's a very high compliment obviously. And also, how hard would it have been for Saddam to dig up an opponent? But we of course recognize there was something fishy about that whole process. We don't really regard the 99.6 percent that Mr. Hussein received as an authentic expression of the will of the Iraqi people. And I think for very good reason.

But when we look at that question of authenticity, it's tricky because it's very easy to point out to, you know, to elections in Iraq, and Iran, and the old Soviet Union that there is something really wrong and fundamentally undemocratic about them. But as we know from observations as early as Alexis De Tocqueville and as recently as Elizabeth Noelle-Newmann, coercion and authenticity can be subverted in ways that are subtle as well as direct. There's kind of a reverse Gresham's law of public opinion, and that's just that popular opinions drive unpopular opinions out of circulation. In certain ways it's very difficult, even in a country like the United States, for people to assert opinions or perspectives that are somehow out of the mainstream. One of the most important things we can do to preserve the integrity of democracy understood as the translation of authentic preferences into public policy, is to try to ensure that the formation of public preferences be as authentic and as free as possible.

Think about the stuff in the First Amendment. I had a student ask me last week why is that stuff jammed into one amendment when all the others seem so specific? You've got freedom of press, freedom of religion, freedom of speech. Freedom of assembly, all presumably part of the same thing. Well, my answer would have been, if I had been thinking a little bit more quickly -- I'm a charter member of the I wish I'd said that club but my answer would have been something like -- but all those four previous freedoms have in common is that they provide a right of self determination. In other words, they provide a right for people to participate in the formation of their own characters.

Imagine this experience. Suppose you found out after sitting here all day that there was subliminal recording just too soft to be audible and it said for "Vote for [United States Senator] Harry Reid" [(D-Nev.)]. Vote Harry Reid. Vote for Harry Reid. This would be uncoerced and nobody put a gun to your head or anything, but there's something wrong with that. If something like that happened -- that's like an unfair manipulation of the opinions of the people in the room.

What the First Amendment of the Constitution, most fundamentally guarantees, in my view, is the right to, or is the capacity to participate in the formation of one's character. Now, in democracies that gets a little tricky because popular majorities have a way of enforcing their preferences into public policy. When we think about things like what kinds of thing make up a person's character, including marriage, whether or not to become a parent, what religion to practice -- okay, all have really profound implications to the way we live our lives. For example, I was raised as a Roman Catholic, and if I were to make a decision -- I must confess a very nominal affiliation with Roman policy, I prefer a more intense version of generous -- of southern baptism, for example, this could have amazing implications, very far reaching implications for my performance in my role as a teacher, as a husband, as a step-dad, and perhaps even as a citizen. Similarly, this decision of whether and who to marry is of fundamental importance. Those of you who are married will attest that being married constitutes a really drastic perceptual shift; the world looks different once you're a married person. Similarly, although I don't have my own children, I think that I can say with a good deal of confidence that the decision to become a parent causes you to think about yourself in entirely different ways.

So what does any of this have to do with the independence of the judiciary? Well, the fact of the matter is, when we look to public opinion for judicial selection, especially in light of the Republican Party v. White decision, which provides for more explicit exposition of candidate views on policy questions -- one finds ways, whether it's in judicial elections or other elections, to restrict that right of self determination for other people.

In case anyone doesn't know what I'm talking about, at least I referred to the right of reproductive treatment, but most importantly to Question Two [the recent referendum seeking to amend the Nevada Constitution to define marriage exclusively as a union between a man and a woman.].

It is very threatening to the formation of authentic preferences on which democracy depends for us to put those sort of self determining situations to a popular vote. I would like to think, although I don't know for sure, that an independent judiciary, if we in fact had one, would prevent this. I would like to think that an independent judiciary, perhaps the United States Supreme Court, will say, "No you can't do that." There are certain decisions that are simply outside the reach of a popular majority. Because when we make those distinctions, we effectively deny full citizenship to certain facets of people based on the self defining experiences which we need to experience.

For that reason, it is very important [for] those fundamental rights, those rights which define ourselves versus anyone else, to be placed out of the reach, as far as possible, from a popular majority. The Declaration of Independence said it much better than I ever could and, I quote, "We hold these truths to be self evident, that all men are created equal and are endowed by the creator with certain inalienable rights." "Inalienable," by the way means you can't give them up. Okay, to paraphrase, Alexis de Tocqueville, I am not more predisposed to walk beneath the yoke of tyranny because it is held to me by the arms of a million men.

Thank you. We have some time for Q and A. We could certainly-- I don't think you need me at this point.

DMITRI SHALIN: Quick question, I appreciate your endurance, and especially our stenographer's, whose hands must be falling off. Could you last for another five, ten minutes?

THE REPORTER: About five more minutes. I have to --

DMITRI SHALIN: Please, very brief questions.

AUDIENCE MEMBER: How do you people feel about live TV in the courtroom, particularly the two judges who are justices?

NANCY BECKER: There's nothing wrong with having public access to the courtroom in order to report it as a newsworthy event. It's another thing to turn the courtroom into an entertainment system, and that is what has emerged. A trial is not TV. It's not entertainment. And it's being made to be just that. And the depiction of judges by Judge Judy and Judge Brown or any of those people you put cameras for a full trial in the courtroom, and the attorneys -- [they] are catering to the camera. Sometimes judges will [do that], not every judge, but some judges will. And the whole concept that this is a serious proceeding and has guidelines set by the Constitution gets lost in the entertainment medium. So there is a difference between cameras in the courtroom and this whole idea of Court TV as an entertainment. And I'm opposed to the one and I have no problem with the other.

NANCY SAITTA: I think that cameras in the courtroom are I work in a family court, and we are videotaped, everything we do is videotaped. So I'm kind of on camera all day long during the day. . . . I've got like seating arrangements -- ten people maybe. But if the public doesn't have any idea what I do day in and day out, and if there was some kind of a court channel, it doesn't mean to be collected just towards the popular cases out there, it needs to be on regularly for every case that I happen to be on. You understood what I mean? I do juvenile court. And right now those cases are closed cases. They're open for the hearing, but they are closed afterwards. So if the public isn't sitting in my courtroom, they don't know what's going on with those juveniles, or how I make decisions. So I think in a way it could be beneficial, but it has to be done in a way that it's not entertainment, where it's sort of a mundane, and everybody's used to it being there all the time. And then the public does get an idea of what's going on in our courtroom by just tuning in and they don't get the ups and downs of the day to day.

DIANNE STEEL: I will only briefly echo. I believe in absolutely complete access to the courtroom by all people. If that means that you do that by coming into my courtroom, so be it. If you do that by bringing a camera into my courtroom, so be it. But I am equally opposed to the spectacle of courtroom proceedings. And I agree that they should be public education. They should be a common -- I think we should have cameras in our courtroom, and should have the opportunity to do so, but it should not be a Hollywood approach to cases. There's a whole bunch of murder cases that take place in our courtrooms everyday that are equally as important to the people who are involved and to the community at large as the two [cases] that you have recently seen publicized here in our valley. Which is not to minimize the fact that they were carried, just let's do it equally. That's all. But absolute access, yes.

DMITRI SHALIN: If I may, excuse my interruption, I have a question for Tom Mitchell. You said that as a journalist you see your role as someone who is spotlighting problems, presenting issues to the public, and letting the public decide on its own what's right, what's wrong, exposing vested interests of all the parties involved. That may create an impression that the media is without a vested interest [of its own], which probably is not the case. It is part of the capitalist system, of the economy, and it has a certain vested interest maybe in scandal, maybe in negative reporting, and some advertisers, as you know, may get fairer treatment than others.

THOMAS MITCHELL: We try not to, but that happens. But as far as whether the camera in the courtroom is entertainment or news, I mean, that's in the eye of the beholder. And I don't think that content of the First Amendment speech is necessarily something that's easy to distinguish. Hard news may be very entertaining to somebody, and entertainment may be hard news to somebody else. It is difficult to say. I think the role of the press is to try to keep the public informed. I much -- I agree with everybody else who criticizes the voters who go to the polls and don't have the foggiest notion what they're doing when they get in there. I think we need to work harder, I think we need to make it clearer to people when they get in the polls, if you only want to vote on question two, just vote on question two and leave everything else alone. If you're ignorant on the subject, then don't vote on it. Don't pick, don't just pick and choose by, "Oh, I saw a sign with that person's name on it." But it does [happen]. But I also disagree, as I said this morning, [that] the multiplicity of the message isn't always the most persuasive. Just because you have your face on television 364 days a year, 24 hours a day, doesn't make you the person that's likely going to be elected. Sometimes it is the content of your message that in the final say is what is persuasive. That's, we don't have full faith in the voters to do the correct thing every time, but the system is going work over a long period of time. Who said, "Democracy is the worst possible governance system in the world except for every other one"?

TED JELEN: Churchill.

THOMAS MITCHELL: Churchill, thank you. You know, the public slips and falls along the way, they make mistakes. They elect people who -- in Texas, they elect a Supreme Court justice because his name is very similar to a famous person. So in order for them to try to get someone else in office who was better, they picked a guy out of Denton County to run against him by the name of Sam Houston, as a write in candidate. That failed, because not many people write in. That's the sort of thing that happens in democracy. Those are the flaws, but you shouldn't throw out the whole system just because every now and then something goes wrong.

DMITRI SHALIN: Last question, maybe two, and then we'll close the meeting.

AUDIENCE MEMBER: A few weeks ago, the ACLU filed [a lawsuit?] regarding complainant's right to speak regarding judicial propriety. As it stands right now [INAUDIBLE]

NANCY BECKER: That was actually incorrect.

AUDIENCE MEMBER: Please help me understand --

NANCY BECKER: That is not what it [court order] says. What it says is that the initial complaint, the fact that you filed a complaint is confidential. You are free to go to the press and make that same complaint to them. You're just not allowed to infer that the filed complaint [is being] investigated, quote unquote -- because that's an inference that your complaint is valid and judicial discipline is already found it to be that. That's what is prohibited. You can talk about it all you [want]. You can go to the press and say this judge is unethical and they violated this particular part of the canons. You just can't say I filed a complaint and it's being investigated. After the complaint has been investigated and they have denied the complaint, it is true that you're not allowed to say that the complaint was denied. The reason for that is, I can tell you, that people frequently lose in court, and they file frivolous complaints because they are mad.

AUDIENCE MEMBER: What about if the complaint is filed and found to be valid?

NANCY BECKER: Then it's a public matter.

AUDIENCE MEMBER: What if you're still given notice by the JDC that you are not allowed to speak of it?

NANCY BECKER: No, once it becomes a public matter, you have an absolute right to reveal that you filed a complaint and that the complaint has been sustained for -- to a certain extent. It's now going to a full hearing process. And you're absolutely free to discuss that.

AUDIENCE MEMBER: What about secret apology letters?

NANCY BECKER: You can't have a "secret apology letter," quote unquote. The canons currently allow them to resolve a complaint at less than a public hearing stage, and the question and that is a question -- is that an appropriate thing to do? If you find there is a violation, [if] that violation can't be resolved in a manner that's nonpublic, and there's a dispute about that -- but I can't comment on [that], because obviously that may come before us as well as before the federal court. But that's, that's the issue. So the issue is very much how do you protect a judge from being inundated from frivolous complaints by people who just lost. Because once that's in the newspaper, people don't the idea that a complaint wasn't sustained or wasn't dismissed, that's not what they remember. "Oh, I remember seeing that judge. The newspaper said they had a complaint against him." So that's the balancing act. And the federal [court] will have to decide -- is that a limitation under the First Amendment, is there a compelling interest for it, and is it sustainable. Previously the appellate courts -- the federal appellate courts always sustained that kind of things. Whether or not that will still occur in the future, I can't tell you. The Supreme Court itself has never taken it up.

DMITRI SHALIN: Last question.

AUDIENCE MEMBER: Coming back to the issue of handling the selection of judges, I've been a trial attorney for 27 years, and I can tell you that the method by which judges are selected has a direct relationship with how justice is administrated. And I wish all of our judges had the integrity of those that have appeared here today. But I tell you, we funnel thousands and thousands of dollars to judges and then we say, "Oh, by the way, don't ever let this influence your decision." I mean, anyone of you asked yourself if I came up and handed you a thousand dollars or five thousand dollars or ten thousand dollars, three years from now, would you remember me? Well, I think you probably would, and the fact is that this does influence judges' decisions. We have a secretary in our office who looked at an original file in Reno, and in the judge's notes right there, the names of the plaintiff's attorney and the defendant's attorney with the dollar amount next to them as to the campaign contributions. Okay? Judges are a lot different than condition dates for other offices. Okay? As Justice Becker said, what we want them to do is to remain independent. So we give them all this money so that they'll be independent and we ask them campaign, get on TV, get on bill boards -- well what was it they're supposed to say? "I'm more independent than my opponent?"

We've been doing this more years and we've worked ourselves into this corner now and so we're discussing, well, how we are going to get all money for campaigns? Should it come out of taxes, or because we don't want people influencing the judge's decision we say, well, what should the judges say who are running for election because we want them to be independent -- well it's all because we're stuck in this corner of general elections for judges and it just is not the right system. I mean, as attorneys alone our arms are twisted all the time. I mean, unlike the judges that are here, I had one occasion where a judge was running for reelection, she called me and she [asked], "Would you be on my reelection committee?" What am I supposed to say? I say, "Sure." Then the next line is well everybody in the reelection committee is donating a thousand dollars to my campaign, can I come by and pickup the check tomorrow? What do I say to that? "Sure." She didn't send somebody else, she came by and got it. Okay? The same thing is happening with businesses and special interest groups and the only reason that, say, hotels, for example, give ten thousand dollars campaign contributions to both judges running for a seat is because they want favoritism when they go into court. That's the whole reason that they're doing that. There's no other reason for the Hilton Hotel to give ten thousand dollars to both candidates.

THOMAS MITCHELL: That's the Shelly Berkley memo.

DMITRI SHALIN: On that note, I think we need to end. Thank you so much for being patient and coming here. Stay tuned for our next set of panels. Thank you.

END OF PUBLIC FORUM