JP Election Brief: 2012 Retention Elections

July 5, 2012

by: the State Court Staff

Every Thursday, Judgepedia's State Court Staff examines events in the world of judicial elections across the nation. Make sure to use Judgepedia's Election Central the rest of the week as a hub for all your judicial election needs.

Some view them as an ideal form of judicial elections, some as the best compromise in a interest-driven election system, and some as a symbol of reducing the voting power of citizens. Of course, we are referring to retention elections.

Retention elections are elections which feature only a judge's name with no opposition. Voters either decide to retain a judge (by voting yes) or remove a judge from office (by voting no). The amount of votes a judge needs to be retained varies among the states, but is generally 60-80% of the vote in favor.

Judges most often stand for retention following appointment utilizing the assisted appointment method of judicial selection, which is commonly referred to as "merit selection".

Since 1940, when Missouri became the first state in the nation to adopt retention elections, these elections have been relatively low-key affairs. Judges standing for retention did not campaign, nor did they expect to not be retained, since the vast majority of them were. This changed in 2010.

The most well-publicized retention campaign in history was that of three justices of the Iowa Supreme Court that year. Justices David Baker, Marsha Ternus and Michael Streit found themselves in the middle of a special interest campaign after a ruling on the constitutionality of same sex marriage in the state. Also in 2010, Justice Dana Fabe in Alaska and Thomas Kilbride in Illinois faced organized opposition to their retention. Both of these justices were able to keep their seats.

Today's Election Brief focuses on the states with retention elections this year. Six states have these elections for each level of their courts. Those are:

• Alaska
• Colorado
• Iowa
• Nebraska
• Utah
• Wyoming

These states hold elections for all judges with terms expiring in even-numbered years.

The following ten states have retention elections for their appellate courts, and some for their trial courts.

Arizona California Florida Indiana Kansas

Maryland Missouri Oklahoma South Dakota Tennessee

These states vary in when they hold retention elections. Most do in even-numbered years, but some, like California, retain their judges only in gubernatorial elections.

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2012 retention elections

Alaska

The Alaska Constitution and statutes require that judges stand for retention at the end of their term, which varies from 4 to 10 years depending on the court. The Alaska Judicial Council is responsible for evaluating judicial performance and making a recommendation to voters on whether or not to retain a judge. They make their recommendation using evaluations from attorneys, peace and probation officers, jurors, social workers and public hearings.

On November 6th, Alaskan voters will choose to retain or not retain each of the 26 judges standing for retention. Justice Daniel Winfree of the Alaska Supreme Court, Judge Joel Bolger of the Alaska Court of Appeals, 10 judges on the Alaska District Court, and 14 judges on the Alaska Superior Court will stand for retention this year.

Arizona

Since the passage of Proposition 108 in 1974, appellate court judges in Arizona have been chosen using merit selection. Following their appointment to the bench, Arizona appellate judges must stand for retention in the next general election that takes place more than two years after they took office.

Arizona's "constitutionally authorized judicial performance evaluation program" was established by voter approval of Proposition 109 in 1992. The goal of this proposition was enabling voters to make informed decisions during judicial retention elections. It required the establishment of a process to review judges' performance and the provision of judicial performance information to the voters. The commission then determines whether a judge "meets" or "does not meet" judicial performance standards and makes its decision available to the public.

Arizona's method of judicial selection could change significantly this fall, when voters are asked to decide the fate of Proposition 115. If passed, this proposition would give the governor more power over who becomes an appellate judge in Arizona. It would require judicial screening panels to provide the governor with a list of at least eight candidates for each vacant judgeship, rather than three, thus giving more discretion to the governor than the merit selection system. According to U.S. 9th Circuit Court Judge Mary Schroeder, who formerly served on the Arizona Court of Appeals, this proposition essentially "does away with the concept of merit selection" in the state.

This year, Arizona Supreme Court Justices Robert Brutinel and John Pelander will run for retention in the general election on November 6.

Colorado

The state of Colorado has used the merit selection system of judicial selection for all levels of state courts since 1967. Following appointment by the governor, judges must run for retention in the next general election that occurs more than two years after they take office, and at the end of each full term thereafter.

In 1988, the Colorado General Assembly created the State Commission on Judicial Performance "to provide fair, responsible and constructive evaluations of trial and appellate judges and justices" at the state level, and commissions in each judicial district evaluate district and county court judges. They evaluate judges based on surveys of those who come in contact with the judicial system, and "[e]ach evaluation includes a narrative profile with a "Retain," "Do Not Retain," or "No Opinion" recommendation."

This year, Justices Monica Márquez and Nathan Coats are up for retention to the Colorado Supreme Court.

Florida

In Florida, judicial retention elections for Supreme Court justices and appellate court judges are held once every six years. This year, three Supreme Court justices and 15 appellate court judges face retention.

The Supreme Court race is proving to be especially contentious, as various conservative groups and other individuals have been fighting against the retention of Justices Barbara Pariente, Fred Lewis and Peggy Quince. The organization Restore Justice 2012 is trying to oust these justices on the grounds of inappropriate judicial activism--pointing to a 2010 healthcare ruling and a 2006 death penalty ruling. In addition, the Southeastern Legal Foundation was arguing a lawsuit that accused the justices of illegally using court employees to file their election paperwork.

Illinois

In Illinois, a lone Supreme Court justice stands for retention, Rita Garman. She has served on the Supreme Court since 2001.

Indiana

Justices on the Court of Appeals and Supreme Court in the state of Indiana face retention two years after their initial appointment and every ten years thereafter. The only other judges to face retention in the state are the superior court judges in Lake and St. Joseph counties. These judges face retention every six years. All other superior court judges in the state compete in partisan elections.

This year, the following Supreme Court and Court of Appeals justices are facing retention:

• Steven David, Supreme Court
• Robert Rucker, Supreme Court
• John Baker, Court of Appeals
• Paul Mathias, Court of Appeals
• Michael Barnes, Court of Appeals
• Nancy Vaidik, Court of Appeals

Iowa

Following a judge's appointment, he or she face retention elections after either six years, for the Court of Appeals and District Courts, or eight years, for the Supreme Court.

This November, four Iowa Supreme Court justices will face retention votes. Three of the justices, Edward Mansfield, Bruce B. Zager, and Thomas Waterman, are new to the court, having been appointed to the court following the removal of three of the justices involved in the legalization of gay marriage in Iowa. The fourth justice up for retention, David Wiggins, has served on the court since 2006 and was also involved in the controversial gay marriage ruling. The retention vote for Wiggins will be an interesting indicator of the political climate in the state, and how it has or has not changed in the past two years.

Kansas

Kansas will have some substantial ballots, with 79 judicial retention elections this year.

• Nancy Moritz is the only justice of the Kansas Supreme Court facing retention.
• In the Court of Appeals, six judges seek retention: Karen Arnold-Burger, G. Gordon Atcheson, David E. Bruns, Richard Greene, Steve Leben, and Joseph Pierron.

Nebraska

All judges in Nebraska are selected using the merit selection system, as required by a 1962 amendment to the state constitution (for judges on the state Supreme Court and District Courts) and by statute (for all other state judges). The state does not have a system to evaluate the performances of judges who are up for retention.

This year, Justices Kenneth Stephan and Michael McCormack are up for retention to the Nebraska Supreme Court.

Oklahoma

In Oklahoma, the merit selection system of judicial selection was adopted in 1967 for judges on the Supreme Court and the Court of Criminal Appeals. Judges on the Court of Civil Appeals have been chosen using merit selection since 1987. Oklahoma does not have a system to evaluate the performance of judges who are up for retention election.

This year, Justices Douglas L. Combs, Noma D. Gurich, Yvonne Kauger, and James E. Edmondson are up for retention to the Oklahoma Supreme Court. Judges Arlene Johnson, David B. Lewis, and Carlene Clancy Smith are up for retention to the Oklahoma Court of Criminal Appeals.

Utah

This year, Utah has 25 trial court judges standing for retention. At least one judge from each Judicial District is eligible for retention, excepting the Seventh District.

For the first time, the Utah Judicial Performance Evaluation Commission will help voters decide whether to retain their judges. It will survey attorneys, jurors and court staff who interact with the judges, and utilize a method of courtroom observation as well.

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See also

• Judicial elections, 2012
• Judgepedia's Election Central
• Evaluating Appellate Judges: Preserving Integrity, Maintaining Accountability conference (2011)