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November 12, 2008

Courting change

Should Kentucky reform the way it chooses judges?

When voters visited the polls in Kentucky on Election Day, they were faced with dozens of candidates running for offices from president to senator to councilman — and on down the line to a slew of judges.

Chances are, you, the voter, had never even heard of some of these judicial candidates. Or perhaps you recognized a name, but were utterly oblivious as to the candidate’s experience or platform.

Did you skip casting your vote in that race altogether? Did you peek at the ballot in the neighboring voting booth? Or did you go with the candidate whose name sounded vaguely familiar, thanks to a television ad or yard sign, but about whom you knew nothing?

It’s a quandary voters often find themselves in when selecting judges, who in Kentucky run in non-partisan elections, meaning there’s no easy out for those who tend to opt for the default party-line vote. That moment of uncertainty in the voting booth is in large part due to a dearth of valuable information about judicial candidates, and it’s a scenario that begs the question: Are “We the People” equipped to elect our judges? If so, are changes in order? And if not, should judges be appointed to the bench?

“I think there are some good arguments to be made for appointments,” says Kurt Metzmeier, associate director of the University of Louisville Law Library and author of a book on the commonwealth’s past judicial reforms. “Kentuckians are often not well informed enough, by no fault of their own. I think the press is not very diligent in reporting the issues in a judicial election.”

One especially compelling argument for reforming judicial elections is the potential selection of unqualified judges. It’s an issue that garnered much attention this past campaign season with the candidacy — and ultimate victory — of Katie King in the race for Jefferson County District Court judge. The 29-year-old assistant county attorney and daughter of Metro Council President Jim King was the target of ample criticism because she has practiced law for less than three years, has never tried a case before a jury and has been disciplined more than once during her relatively short career.

Despite mounting evidence that King might not be the best judge for the job, she handily defeated her opponent — a seasoned lawyer and sitting judge — after spending more than $200,000 on her campaign.

“I think a lot of people will agree a somewhat unqualified candidate was elected at the district court level. You know what I’m talking about,” says Metzmeier, declining to give a specific name. “But I’m not sure this is a case where you should throw the baby out with the bath water … Not very often does someone with less than three years experience become a candidate, coming with the political expertise of a family member who has run a lot of good campaigns.”

And while some critics have pushed for reform, Metzmeier says moving from elections to appointments is unlikely, adding that such a major overhaul would require amending the state constitution.

“It’s a great idea, lots of states do it,” he says. “I’m just not sure Kentucky would be willing to make that change.”

Kentucky is one of 14 states where voters elect all judges through non-partisan races, according to the American Judicature Society. In 18 states, either the governor, the state legislature or a nominating committee appoints judges; in seven states, judges are elected solely through partisan elections; and 11 states rely on a combination of judicial appointments and elections. The federal government also appoints its judges to the bench.

In 1975, the commonwealth revamped its system of electing judges, switching from partisan to non-partisan races. At the time, Metzmeier says minimum standards for judicial candidates also were established, requiring all state judges to have at least eight years of experience, with the exception of district court judges, who need only two years.

Back then, district judges received menial compensation and no pension, and as a result minimum qualifications were set low to attract candidates. Because the state has since raised the pay and started offering pensions, Metzmeier says upping the minimum experience required would be a reasonable step toward improving judicial elections. “Most people who know anything about the law think that’s an absurd level of experience,” he says. “There are complexities of the law you just don’t understand at that point.”

In addition, he suggests the Kentucky Bar Association consider formally recommending judicial candidates to voters based on a review of qualifications.

These are changes perennial political candidate-turned-political observer Ed Springston thinks are long overdue.

The former candidate for Metro Council and mayor closely followed the local judicial campaigns this year, ultimately filing a complaint with the Kentucky Judicial Conduct Commission accusing Katie King of various campaign ethics violations. The commission is slated to consider the complaint next week, but given King has already won, the findings will have little impact.

Regardless of the outcome of his complaint, Springston says King’s victory is proof that judicial election reforms are necessary, although eliminating elections altogether is not the solution: “A more thorough vetting process needs to be in place for all (judicial) candidates. Judges should be held to a higher standard than most in elections, as the responsibility of the position is one that demands such.”