Corrected: October 29, 2010
Millions of dollars are pouring into races for slots on state Supreme Courts, where the winners will make decisions about the lives and liberty of individuals, the fates of major corporations and other weighty matters. Unfortunately the TV ads attacking some of these candidates – like those that target more conventional politicians in top-of-the-ballot contests – are often riddled with false, misleading and out-of-context assertions.
Here, we provide just a sample of judicial campaign ads on the airwaves. These are running in three Midwestern states; all are attacks by outside groups on incumbent justices.
A Democratic Party ad in Michigan falsely accuses Justice Bob Young of ruling that "Michigan citizens cannot hold [corporations] accountable when they pollute our lakes or rivers." In fact, any citizen directly affected by environmental harm can still sue.
A business-backed group in Illinois cherry-picks cases in its ad to portray Justice Thomas Kilbride as pro-criminal. It claims he has the worst "public safety rating" of the justices — based on a study using questionable methodology and funded by the group itself.
Three Iowa Supreme Court justices are attacked in an ad for being "liberal," "out of control" and "ignoring the will of voters" for their votes to allow same-sex marriage in the state. The fact is that the decision was unanimous, and was written by an appointee of a GOP governor.
The cost of these elections continues to soar. According to a study issued in August by three groups that watch judicial elections, spending on judges’ campaigns totaled $206.9 million for the years 2000-2009, more than double what was spent during the previous decade. Spending on TV alone went to $26.6 million in 2007-08.
This is the latest installment in our occasional Court Watch series. Over the last few years we have written about distortions in judicial campaign ads in Wisconsin, Pennsylvania, Alabama and other states.
Justice Robert Young, who is backed by the GOP, is attempting to keep his seat on the bench but is under attack by environmentalists and others trying to block conservatives from regaining control of the court. In one ad, the state Democratic Party accuses him of preventing Michigan citizens from "hold[ing] polluters accountable." But that stretches his ruling in an environmental case way too far.
Young did write the state Supreme Court’s majority opinion in 2007 in a case called Michigan Citizens for Water Conservation v. Nestle Waters North America Inc. Bollman. The underlying issue involved whether Nestle could operate a bottled water plant in Western Michigan, pumping from the watershed and potentially reducing water levels in rivers, wetlands and other sources. In the case, several individuals and a group called Michigan Citizens for Water Conservation challenged the plant under the Michigan Environmental Protection Act, which allows "any person" to sue to protect the state’s natural resources from "pollution, impairment or destruction."
The case before the justices involved only the question of who had standing, or the right to sue under the statute. The 4-3 decision, with the conservative justices in the majority, narrowed that universe. But it’s simply not true that the court held that "Michigan citizens cannot hold polluters accountable," as the ad says. The opinion, which built on a 2004 decision, said that citizens can sue only when they are directly affected by the environmental harm they are alleging. In this case, it meant that the residents could sue over how Nestle’s actions might affect certain bodies of water that the plaintiffs actually visited or used. But they couldn’t sue over other wetlands, because they didn’t show that they came in contact with those areas.
How does that affect the situation in the Kalamazoo River, where in July an Enbridge Energy pipeline broke and spewed oil into the water? It may mean that residents from across the state can’t sue over the mess. But it doesn’t mean that nearby residents can’t take to the courts, and some already have. In addition, Enbridge, along with the state and federal governments, has been working to clean up the million-gallon mess, for which the company will pay all costs. A company executive recently estimated those costs would be in the range of $300 million to $400 million, including the purchase of some residents’ homes.
Young’s campaign spokesman, Tom Shields, said in response to this ad that "allowing anyone to sue for any reason" leads to "frivolous lawsuits" that "would be a disaster for Michigan business development and jobs." Others, such as one of the dissenting justices in the Nestle Waters case, believe that if the citizen suit provision in the statute is to be narrowed, it should be done by the Legislature, not the court.
The ad claims that Young was rated the "worst judge" on the Supreme Court in 2008. That’s true, but based on a dubious survey. We contacted Gary Gosselin, editor of Michigan Lawyers Weekly, the publication cited on screen. He said the weekly hired Mitchell Interactive to send out more than 700 surveys asking attorneys to rank the justices. Seventy-nine responses were received and tallied, and indeed Young was rated lowest in "overall performance," according to those who answered the poll. (The story is unavailable online.) Such self-selected samples aren’t reliable. According to the National Council on Public Polls, mail-in polls like this one are "suspect" when "many more people fail to participate than do," as was the case here.
Cherry-Picking Season in Illinois
Justice Thomas Kilbride, who has served a decade on the Illinois Supreme Court, doesn’t have anyone running against him; his is a retention election, in which he must win approval of 60 percent of voters to stay on the bench. Much of the corporate community doesn’t approve of him, largely because of his vote with the majority in a case overturning a statutory cap on pain-and-suffering damages in medical malpractice cases. The opposition is led by a group called the Illinois Civil Justice League, which is funded by business, including the U.S. Chamber of Commerce, to go after Kilbride. The American Tort Reform Association and the American Justice Partnership, which was started by the National Association of Manufacturers, have also anted up to defeat Kilbride.
Interestingly, the league isn’t going after Kilbride for his malpractice ruling. Ads sponsored by the league’s political action committee, JUSTPAC, focus instead on Kilbride’s rulings on criminal cases. "Our central issue is to remove Thomas Kilbride from the bench," the league’s head, Ed Murnane, told the Chicago Tribune. "We will do whatever we feel is legal and we will be using whatever means necessary and whatever issues will have an impact on voters." He didn’t promise they would be truthful.
Illinois Civil Justice League Ad: "Vote No on Kilbride"
The ad that’s been running on television echoes an earlier radio ad by the league. The TV version shows silhouettes representing three criminals, whose voices (done by actors) describe their heinous crimes. The ad then says: "On appeal, Justice Thomas Kilbride sided with us. Over law enforcement or victims."
But as usual in attack ads, the facts are not as simple as they are made to seem. Neither of the first two criminals would have been released even if Kilbride had prevailed, for one thing. The first would still be serving a sentence of at least 60 years in prison; another would have had his death sentence (but not his conviction) sent back to a lower court for reconsideration. The third would have received a new trial because of the misbehavior of a juror who cheered out loud for the prosecution.
Criminal #1: All of the cases involve procedural issues. The first one, People v. Crespo, concerns a sentencing issue. Hector Crespo had been found guilty of the 1995 murder of his girlfriend, whom he stabbed 24 times with a kitchen knife; he also stabbed her daughter. Crespo was sentenced to 75 years, 15 years above the 60-year prescribed maximum in Illinois for first-degree murder. The question before the court was whether, technically, the requirements for imposing the additional 15 years had been met in the lower courts.
The court’s majority said the longer sentence passed muster. Kilbride dissented, saying the case was much like a case the court had handled earlier in which it reached the opposite conclusion. "The majority’s opinion in the instant case … marks a significant abrogation of our basic civil liberties and I, therefore, respectfully dissent," he wrote in the 2001 opinion.
But Kilbride wouldn’t have let the felon go free. Had Kilbride been in the majority, the case might have been sent back to the lower court for a new sentencing hearing. There was no doubt, however, that Crespo’s conviction would stand and he’d still be sitting in prison serving at least 60 years.
Criminal #2: In People v. Bannister, the second case cited in the ad, Joseph Bannister challenged on several grounds his conviction and death sentence for the 2000 murder of his girlfriend’s sister, the attempted murder of his girlfriend, and home invasion. In a 2008 decision, the state Supreme Court rejected all of his arguments, ordering Bannister’s execution to proceed. Kilbride, in a dissent, agreed with the majority on every point except one: He agreed with the defendant that the judge’s instructions to the jury in the sentencing hearing were flawed. "A careful analysis of the plain meaning of the instruction reveals that it is inherently confusing and legally inaccurate," Kilbride wrote. Bannister’s "sentence should be vacated and the cause remanded for a new sentencing hearing before a properly instructed jury," he concluded. Again, the felon wouldn’t have been released; his conviction would stand and he would simply be re-sentenced, possibly to death.
Criminal #3: In the third case, People v. Runge, decided in 2009, Paul Runge had been convicted of committing two horrific sexual assaults and murders several years earlier. At the trial, a juror cheered while the prosecutor was making a point, leading a second juror to complain to the judge. The judge questioned the juror who cheered, but didn’t ask the rest of the jurors whether the one who had acted out of line had had any impact on their thinking about the case. A majority of the Supreme Court justices said the defendant had received a fair trial. In dissent, another justice wrote: "[T]he trial judge did nothing to determine what effect Juror A’s misconduct had on the other jurors, nor did it ascertain whether all the jurors remained impartial during the guilt phase. It is the failure to inquire, in my mind, that constitutes reversible error and warrants a new trial." Kilbride and a third justice joined the dissent.
A dubious study: The ad claims broadly that "Kilbride chose criminals’ rights over and over again, way more than any other justice." But that’s based on a questionable study that was funded by the league itself. The on-screen citation is to something called the Economic Judicial Report, Criminal Law Edition. That report was commissioned by the Illinois Civil Justice League — the same group whose PAC is running the ad. The report purports to cover 10 years of Illinois Supreme Court criminal decisions in which there was a split decision on "conviction, sentencing, or some other point of law" affecting public safety and law enforcement. Kilbride has been on the bench 10 years. The panel came up with 95 cases to include in the study. Each case, according to the study, was "reviewed and rated by a panel of attorneys," whose names are not disclosed. Kilbride, according to the report, had a "public safety rating" of just 9 percent based on this analysis.
But that’s a questionable conclusion. First, the league itself doesn’t appear to have confidence in its own study. Recently, it posted this new analysis of split decisions in criminal cases heard by Kilbride, and instead of 95 cases, it listed just 75. We tried to reach the group to figure out the discrepancy and learn more about the first study’s methodology, but were unsuccessful.
Furthermore, we have independently verified that there are at least 80 cases in which there were split decisions — and which thus meet the league’s stated criteria — but which were not included in either of its lists. In those 80 omitted cases, Kilbride voted with the majority more than 90 percent of the time. And he also voted with the majority more than 90 percent of the time in the subset of omitted cases in which the state prosecutor (rather than the defendant) was the prevailing party.
In addition, Kilbridge’s campaign calculates that he’s heard more than 430 criminal cases since he joined the court. In more than 200 of those, the court’s opinion was unanimous, according to the campaign – meaning that whichever way the decision fell, he was right in the mainstream. The league’s study doesn’t mention those, even though it states that "understanding each justice’s role in the criminal justice system" was the purpose of the report.
For the record, this supposedly pro-defendant, anti-prosecutor justice has been endorsed by the majority of members of the executive board of an organization of thousands of Illinois state troopers, former Republican Gov. Jim Thompson, the state’s Fraternal Order of Police and some state’s attorneys. The Illinois Judges’ Association put out a statement condemning the attack on Kilbride, urging voters to "Vote on the basis of facts, not propaganda or an orchestrated disinformation media barrage." The Illinois State Bar Association protested that JUSTPAC "has distorted the record and rulings of Justice Kilbride by characterizing him as allegedly soft on crime and criminals."
Fighting Mad About Marriage
In Iowa, the only issue anyone talks about in connection with the three justices facing retention votes is the court’s 2009 ruling in the case Varnum v. Brien making Iowa the third state in the U.S. to allow same-sex marriage. (Currently five states and Washington, D.C., issue marriage licenses for same-sex couples.) Opposition has been heated, and anti-gay marriage groups are out for the justices’ scalps.
Narrator: Activist judges on Iowa’s Supreme Court have become political, ignoring the will of voters, and imposing same-sex marriage on Iowa. Liberal, out-of-control judges ignoring our traditional values and legislating from the bench, imposing their own values on Iowa. If they can usurp the will of voters and redefine marriage, what will they do to other long-established Iowa traditions and rights? Three of these judges are now on the November ballot. Send them a message. Vote no on retention of Supreme Court Justices.
This ad is rooted mostly in opinion, and everyone is entitled to that. If Iowa for Freedom and the National Organization for Marriage believe that the state’s justices have "become political" and are "liberal" and "out-of-control," we’re not going to argue. We can, however, point out a few facts and provide some context.
For one thing, the court decision was unanimous. That means that it included the two justices who were appointed by a Republican governor, Terry Branstad – who, by the way, signed the law that was overturned by this decision and has criticized the court’s action. One of those two justices, Mark Cady, was the author of the opinion. The other, Marsha Ternus, is one of the three justices — the others are David Baker and Michael Streit — who are up for a retention vote.
Second, like it or not, "ignoring the will of voters" is exactly what justices are called on to do. They are meant to base their decisions on the facts and the law, most important, the state constitution. Furthermore, the "will of the voters" is not entirely clear; most polls, such as one conducted for Des Moines television station KCCI last February, have found Iowans closely divided (this one asked respondents whether they’d favor a constitutional amendment barring same-sex marriage). Several months before that, a poll for the Des Moines Register found similar results. It also found that well under half of those polled said they disapproved of the court’s decision:
Des Moines Register, Sept. 21, 2009: The poll shows that 26 percent of Iowans favor April’s unanimous court ruling legalizing same-sex marriage, 43 percent oppose it and 31 percent don’t care much or are not sure.
Finally, the ad says that the justices were "legislating from the bench" and "imposing their own values" when they issued the decision. Those are clearly opinions. But we would point out that the court ruled that the legislature had violated the state constitution’s guarantee of equal protection. Here’s part of what Cady wrote about that:
Varnum v. Brien, April 3, 2009: We are firmly convinced that the exclusion of gay and lesbian people from the institution of civil marriage does not substantially further any important governmental objective. The legislature has excluded a historically disfavored class of persons from a supremely important civil institution without a constitutionally sufficient justification. …
This approach does not disrespect or denigrate the religious views of many Iowans who may strongly believe in marriage as a dual-gender union, but considers, as we must, only the constitutional rights of all people, as expressed by the promise of equal protection for all.
For voters trying to keep up with the ads running in the last few days of the judicial campaigns, Justice at Stake and the Brennan Center for Justice are posting the spots on this website.
by Viveca Novak for factcheck.org
Correction, Oct. 29: We have changed the article to reflect the fact that Justice Kilbride has been endorsed by the majority of members of the executive board of an organization of state troopers, not by the board as a unit, as we originally wrote.