JP Election Brief: An indictment, legal challenges, and First Amendment questions

July 19, 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.

Important dates

Filing deadline

• July 30: Filing deadline in Arizona

Primary election

• July 31: Primary/General election in Georgia

Primary runoff

• July 31: Primary runoff in Texas

In the News

Shake-ups in Georgia Superior Court races

The July 31 Georgia judicial election is fast approaching, and two races for Superior Court seats are seeing some shake-ups.

Georgia's primary election is July 31. Check Georgia judicial elections, 2012 for information about the candidates!

In the Tenth Superior Court District, Northern Judicial Circuit, incumbent Thomas L. Hodges will now be running unopposed for re-election, as challenger Chris NeSmith has exited the race. NeSmith pulled out of the race due to tax issues. NeSmith still owes taxes for 2007 and 2010, and though he is making payments toward the back taxes, his continued candidacy became untenable due to a complaint filed by Hodges' supporters, which then led to a ruling from an Atlanta Administrative Court judge that he was ineligible to run. Though NeSmith initially said he expected the Georgia Secretary of State to overturn the ruling, he subsequently chose to exit the race.

The Fourth Superior Court District, Stone Mountain Judicial Circuit, is also seeing some excitement. Candidate Michael Rothenberg, who is challenging Chief Judge Gail C. Flake, was indicted on theft charges on July 17th. The indictment alleges that Rothenberg diverted more than $400,000 from his investment firm, Four Five LLC, toward personal expenditures, "including meals, massages and campaign finances." Rothenberg has said that he is speaking with representatives to determine next steps. DeKalb County District Attorney Robert James has said that the investigation has been ongoing, and that the timing of the changes have no relation to the election. A warrant will be issued for Rothenberg, and he will have the option to turn himself in.

Pinellas County judicial candidates tout their qualifications to fellow Floridians

At the beginning of the month, candidates vying for seats on Florida's 6th Circuit Court came before voters to explain why they should be elected. Three contested Circuit Court seats were represented, with two candidates competing per seat. Each candidate had five minutes to speak to an audience of about 50 at a forum in Clearwater, Florida.

Florida's primary election is August 14. Check Florida judicial elections, 2012 for information about the candidates!

Here is a brief summary of the Circuit Court candidates' statements:

For Group 15:

Bill Burgess pointed to the fact that he has tried over 140 jury trials as a prosecutor. He said he would be a diligent, detail-oriented judge. Andy Steingold, who has practiced law for 25 years, pointed to his community involvement, especially as mayor of Safety Harbor.

For Group 31:

Brian Battaglia focused on his community involvement as an advocate, teacher and attorney. He also stated, "I have a lot of experience with the process and the courts." Kim Campbell described her career path as an assistant state attorney, private practice lawyer, Guardian ad Litem and as President of the Clearwater Bar Association.

For Group 45:

Jack Day, a four-year judge of the Unified Family Court, talked about founding Gulf Coast Legal Services, which provides legal services to those with low income. Agnes Theresa McCabe has spent 12 years in the state attorney's office. She stated, "Whatever kind of day you are having, the people having their children removed are having a worse day. And I think that’s important to remember."

Arizona high court steps into Superior Court race

The Arizona Supreme Court has ruled that Judge Joseph Lodge's name will not appear on the ballot in the state's primary election.

Arizona's primary election is August 28. Check Arizona judicial elections, 2012 for information about the candidates!

Judge Lodge collected 1,100 signatures in support of his nomination to the Coconino County Superior Court, more than twice the number he was required to obtain. However, on June 19, Yavapai County Judge Michael Bluff issued a decision stating that those signatures were invalid because Lodge failed to indicate to signers which of the division seats on the court he was seeking. Arizona Supreme Court Chief Justice Rebecca White Berch agreed with Judge Bluff's assessment and ordered that Judge Lodge be kept off the ballot.

Judge Lodge is currently serving as the Division 5 judge on the Coconino County Superior Court, a position to which he was appointed in 2010. He expected to face Cathleen Nichols in the August 28 primary election, but following the state Supreme Court's ruling, Nichols will now appear on the ballot as the only candidate for the Division 5 judgeship.

Missouri Circuit Court races

Former judge challenges 20th Circuit incumbent

Former Judge Cynthia M. Eckelkamp hopes to win back a position on the 20th Circuit Court this year by challenging incumbent Judge Gael D. Wood.

Missouri's primary election is August 7. Check Missouri judicial elections, 2012 for information about the candidates!

Eckelkamp served as a circuit judge for Division 2 of the 20th Circuit Court from 2004 until 2010. She stepped down in 2010, after losing her party's primary in that year's election. Eckelkamp has a bachelor's degree from Vassar College and a J.D. from Washington University School of Law. This year she will run for Division 1 which is currently held by Judge Wood.

Judge Wood has been serving as a judge for the 20th Circuit Court since 2001. He obtained a B.A. and J.D. from the University of Missouri.

Incumbent challenged in 17th Circuit

Judge William B. Collins of the 17th Judicial Circuit Court is defending his incumbency this year as he faces attorney Chase Higinbotham in the primary election on August 7th.

Judge Collins holds a BSBA in accounting from Rockhurst College and a J.D. from the University of Missouri. He was first elected as the Division 3 Associate Circuit Judge in 1994, and re-elected in 1998, 2002, 2006, and 2010.

Higinbotham holds a bachelor’s degree in mathematics from Dartmouth College and a J.D. from the University of Kansas. He runs his own law office in Belton, Missouri.

Ohio Supreme Court candidate allowed to refer to himself as "judge"

A new rules commission has found in favor of William O'Neill, candidate for the Ohio Supreme Court. O'Neill served as an intermediate appellate court judge for the Ohio Eleventh District Court of Appeals from 1997 to 2007. To make a point of that fact, he referred to himself as Judge William O'Neill multiple times in an election advertisement, after saying once that he was a "former judge".

Ohio's general election is November 6. Check Ohio judicial elections, 2012 for information about the candidates!

O'Neill was accused of violating the judicial canons which dictate the actions of judges and candidates during an election. Originally, a five-judge panel agreed that O'Neill had violated Canon 4.3(C) which does not allow a former judge to refer to oneself as a judge during a campaign for a different position than the one held. However, this week a special, newly-created commission found that canon to be unconstitutional. The commission, which was formed by the Ohio Supreme Court in order to keep the court out of the affairs of potential members, said that the use of "former judge" in the advertisement allowed O'Neill to refer to himself as judge. In the 7-6 decision, the majority said,

“

Although we might not agree the brochure is not false but misleading, the challenged rule does not address misleading speech, only the use of a judicial position that the candidate currently does not have.

”

Needless to say, O'Neill sees this as a victory. Now in his third campaign for the high court, the former judge has spent his recent campaigns challenging the status quo of judicial elections in the state. This year, he has refused donations and has a bold line on his campaign website which reads, "Money and judges don't mix. Never have and never will." In his last election, the Disciplinary Counsel of Ohio attempted to have him stop identifying himself as a Democrat. For both challenges, O'Neill's right to free speech prevented any further action by the counsel.

This year, William O'Neill is challenging Justice Robert Cupp. In 2004 and 2006, he lost election to Justice Terrence O'Donnell.

See also

• Judgepedia's Election Central