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PAR Says Merit Selection of Judges Should Be Considered

Serious consideration should be given this legislative session to moving the state away from its current method of electing judges toward a merit-based system for selecting judges at the district court level and above. New data on judicial campaign finance and election results through the 2002 elections confirm past findings. PAR consistently finds troubling results regarding campaign finance and low voter involvement. Judicial elections are generally noncompetitive, significantly favor incumbents and promote large campaign spending and debt.

Judicial races are expensive and time consuming requiring that judicial candidates, like any other candidates for public office, solicit funds or otherwise lean on their political ties to compete. Justice should be far removed from the subtle influence of campaign contributors. Requiring judicial candidates to court their electorate casts doubt on the ability of those candidates to subsequently serve with impartiality. Additionally, judicial campaigns require that candidates take time away from their law practices to hit the campaign trail, thus discouraging many highly active and qualified lawyers from running.

Campaign success is clearly linked with campaign spending. Judicial campaign finance reports from 2000 to 2002 show that 68% of the elections during that period were won by the candidate that reported the largest total expenditures. On average, winning judicial candidates spent over $40,000 (34%) more than their second place challengers. Further, the records show that the average outstanding debt was $48,969, with 27 candidates each having a remaining debt exceeding $100,000.

Supporters of the existing system of electing judges argue that voters have a right to choose. However, in practice, judicial election only sometimes gives voters a choice in the initial selection of judges, and often denies them an opportunity to vote on retaining judges.

For the 2000 to 2002 period, 74% (213) of the judicial elections had an uncontested candidate who never appeared on the ballot, and only 13% (31) of incumbents were opposed for re-election. Of special note is the fact that 10 non-incumbents during this period won an initial term without any voter input.

To remove justice from the deal-making temptations of campaign politics, PAR has long recommended that Louisiana implement a judicial selection process that blends merit-based appointment with retention elections for all judicial positions at the district court level and above. A nationally predominant and successful model for such a process is the Missouri Plan, which incorporates retention elections into merit-based selection to decide if a judge remains in office after an initial term or for subsequent terms.

Nationally, merit selection of judges has been widely adopted. To date, 47 states use some form of an appointment process for at least some of their judges. Of these, 19 states use a judicial elections system but allow appointment to fill unexpired terms or vacancies. The other 28 states use an initial appointment process, with 16 of those states using the Missouri Plan.

The Missouri Plan could be used to fold merit-based judicial appointments into the Louisiana judicial system as current judicial terms expire or vacancies otherwise occur. The plan would establish nominating commissions, composed of lawyers and non-lawyers, which would screen applicants and nominate three candidates for each position that becomes vacant. The governor would appoint one candidate from the list submitted by the nominating commission. The appointee would then stand for an unopposed retention election at the first general election following the first year in office and prior to the end of each subsequent term.

The local nominating committee for each position would include representatives from a broad spectrum of the population in the corresponding judicial district. The potential for political influence to affect appointment would still exist, but to a much lesser degree than in the election process.

Merit selection and retention elections for judges in Louisiana will be considered again during the 2003 legislative session. This issue should receive careful consideration given the problems PAR has documented with the current system. Any change adopted should incorporate the essential elements of the Missouri Plan, which provide for a nominating committee, gubernatorial appointment and voter-approved retention elections.

ADDENDA

The following tables present data on judicial elections from 2000 to 2002. Also included are data from earlier PAR studies on this topic.

TABLE 1

Cost of Judicial Elections

All Louisiana Contested Judicial Elections 2000 to 2002 *

 

Category

Supreme Court

Courts of Appeal

District

Courts

Combined Total

Number of contested elections

1

7

68

76

Number of Candidates

4

15

178

197

Average Total Receipts:

All candidates in category

$ 681,666

$ 243,634

$ 107,607

$ 131,598

All winning candidates

$ 577,285

$ 341,346

$ 137,552

$ 164,329

All second place candidates

$1,338,629

$ 179,139

$ 99,155

$ 123,147

All losing candidates

$ 716,460

$ 158,135

$ 89,486

$ 110,435

Average Total Disbursement:

All candidates in category

$ 663,478

$ 242,265

$ 102,929

$ 127,080

All winning candidates

$ 565,545

$ 327,641

$ 134,000

$ 160,192

All second place candidates

$1,292,905

$ 190,797

$ 94,259

$ 119,251

All losing candidates

$ 696,123

$ 167,561

$ 84,086

$ 105,672

Average Total Loans Received:

All candidates in category

$ 10,270

$ 104,938

$ 53,092

$ 55,950

All winning candidates

$ 1,081

$ 158,748

$ 55,204

$ 63,883

All second place candidates

$ 0

$ 66,118

$ 53,663

$ 54,110

All losing candidates

$ 13,333

$ 57,853

$ 51,357

$ 50,822

Candidate Debt:

% of receipts due to loans

2%

43%

49%

43%

# of candidates incurring debt

2 (50%)

11 (73%)

145 (81%)

158 (80%)

* This data includes judicial elections at the district court level and above. It does not include parish court,

city court or other lower level judge elections.

SOURCE: PAR analysis of candidate reports filed with the Supervisory Committee on Campaign Finance Disclosure.

TABLE 2

Most Judicial Elections Are Uncontested 1

Louisiana Judicial Elections 1990-1999

 

Category

Supreme

Court2

Courts of

Appeal

District

Courts

Combined

Total

Uncontested

Elections

5

(42%)

48

(61%)

297

(60%)

350

(60%)

Contested

Elections

7

(58%)

31

(39%)

199

(40%)

237

(40%)

TOTAL

12

(100%)

79

(100%)

496

(100%)

587

(100%)

Louisiana Judicial Elections 2000-2002

 

Category

Supreme Court

Courts of

Appeal

District

Courts

Combined

Total

Uncontested

Elections

2

(67%)

32

(82%)

179

(72%)

213

(74%)

Contested

Elections

1

(33%)

7

(18%)

68

(28%)

76

(26%)

TOTAL

3

(100%)

39

(100%)

247

(100%)

289

(100%)

1 This data includes judicial elections at the district court level and above. It does not include parish court, city court or other lower level judge elections.

2 Due to a Consent Decree, the judge of the 4th Circuit 1st District Court of Appeal is included as a member of the Supreme Court. This election is included in the Supreme Court statistics.

SOURCE: PAR analysis of Louisiana Secretary of State judicial election data.

TABLE 3

Judicial Incumbents Rarely Are Challenged1

Louisiana Judicial Elections 1990-1999

 

Category

Supreme Court2

Courts of Appeal

District Courts

Combined Total

Number of incumbents seeking re-election

7

38

321

366

Number of incumbents in opposed elections3

3

(43%)

4

(11%)

58

(18%)

65

(18%)

Incumbents running for re-election defeated3

2

(29%)

2

(5%)

13

(4%)

17

(5%)

Louisiana Judicial Elections 2000-2002

 

Category

Supreme Court

Courts of Appeal

District Courts

Combined Total

Number of incumbents seeking re-election

2

27

204

233

Number of incumbents in opposed elections3

0

(0%)

4

(15%)

27

(13%)

31

(13%)

Incumbents running for re-election defeated3

0

(0%)

1

(4%)

3

(1%)

4

(2%)

1 This data includes judicial elections at the district court level and above. It does not include parish court, city court or other lower level judge elections.

2 Includes special court of appeal seat.

3 Percentage is number of incumbents in category divided by total number of incumbents seeking

re-election in that category.

SOURCE: PAR analysis of Louisiana Secretary of State judicial election data.

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