Las Vegas Sun

March 29, 2024

Should the voters pick their judges?

This election year the candidates for the 11 open judicial positions in Clark County may find their campaigns overshadowed by a bigger issue: Should voters elect them?

The Nevada Bar Association is taking a proposal to the Legislature next year to change the Nevada Constitution, creating a judicial selection system that would start with all judges being appointed.

Under the plan the state's Judicial Selection Commission would fill judicial vacancies with each appointee serving a two-year term. At the end of the term the judge would run in an open, nonpartisan election.

The winner would then serve a six-year term and at the conclusion a "retention election" would be held allowing voters to decide whether to keep or reject the judge.

If the judge is rejected, the state's Commission on Judicial Selection would fill the vacancy and the process would begin again.

It's a controversial issue - attempts to change the process have failed twice in Nevada. In 1972 and 1988 voters rejected the so-called Missouri Plan - judges are appointed and then face retention elections at the end of their terms.

Since Missouri became the first state to adopt such a system in 1940, 33 other states and the District of Columbia now use a merit selection system to choose all or some of their judges.

The concern, according to Nevada Supreme Court Chief Justice Robert Rose and others, is whether the general public knows enough about the qualifications of judges, or enough about the law, to cast an informed vote.

Opponents, however, say systems such as the Missouri Plan put politics into the system because selections would be done behind closed doors.

Vince Consul, state bar president, said the Nevada Plan would address all of the concerns.

"This is a compromise to balance a pure Missouri plan that has no contested election element to it," Consul said. "The key to our plan is it still includes the voters. They have the right to vote for a judge and also reject judges they feel aren't doing a good job."

The Legislature will have to pass the amendment and then the voters will have to vote in favor of the plan both in 2008 and 2010 before it can be made law. The earliest the plan could be in place would be in January 2011.

"The issue is all about finding a sense of balance between judicial independence and judicial accountability," Consul said. "Judicial independence is compromised when judges have to raise funds from attorneys and businesses who appear before them in court.

"This then affects the confidence people have in the justice system. The public wants accountability and has this through nonpartisan, open elections."

Rose said having people elect judges is almost like asking voters to elect doctors because "voters in neither case have enough information or knowledge about the law or medicine in the majority of races to be relied upon to make an informed choice."

"It's questionable whether voters have enough information, important information to make and informed, educated vote," Rose said. "Most of the information a voter has about a judicial candidate comes from television ads or what little they may find in the newspaper."

District Court Chief Judge Kathy Hardcastle, however, says the current system is fine the way it is because it offers the "best of both worlds."

"There are problems either way whether it's the committee or with elections," Hardcastle said. "We get good, qualified people in elections where politics are involved and you can get good, qualified people through the committee with politics involved behind closed doors."

The chief judge said in her case she "never had the political power to pull down the appointment."

Hardcastle said the current method works because it uses merit selection to fill vacancies and then gives the voters an opportunity to retain or reject the appointee in an open election.

She also noted that judges wouldn't be free from fundraising because there would still be elections.

Presiding Civil District Judge Elizabeth Gonzalez has experience with both merit selection and elections.

She was appointed by Gov. Kenny Guinn to a vacant District Court seat in July 2004 and then won the open election that November by beating former assistant district attorney and Juvenile Court Hearing Master Mike Davidson.

Gonzalez said her experience has lead her to believe that both merit selection and the voice of the people should be equally represented in any new judicial selection system being proposed in Nevada.

"Merit selection is very important because our judges are confronted with a diversity of cases and the Judicial Selection Commission is able to weed out which judges have the across-the-board experience to meet that challenge," she said.

"I also believe being elected by the public is important because we have a voice as members of the community as per what kind of judges we want on the bench."

Las Vegas Justice Court Chief Judge James Bixler agrees and says the current system is an "unhealthy environment."

Bixler is currently both campaigning to be elected to District Court and is one of 12 people who have applied to be appointed to replace District Judge John McGroarty, who has announced his retirement.

"It doesn't make good sense for the election process, the political election process to govern how we pick out judges," Bixler said. "It's kind of embarrassing, but when I vote I don't even know all the candidates for the judicial races and I'm a judge."

Matt Pordum can be reached at 474-7406 or at [email protected].

archive