Judicial Selection and the Jury System
By
PHIL HARDBERGER, CHIEF JUSTICE
FOURTH COURT OF APPEALS
Delivered March 7, 2000
Alamo Heights Rotary Club
San Antonio, Texas
Today, I want to discuss with you two issues that have been the subject of an on-going debate both at the state and national level. Those issues involve: (1) the judicial selection process; and (2) the effectiveness of our juries. More specifically, the issue with regard to judicial selection asks whether we would be better served by judges who are appointed, as opposed to judges who are elected. With regard to juries, the debate centers on whether additional checks and balances, both legal and legislative, are necessary to limit the discretion traditionally placed in a jury to reach a verdict.
In order to debate whether change is needed in Texas’s system of electing judges, it is important to understand the evolution of that system. Work on the Texas Constitution and its organization of the judiciary began in July of 1845, fifty-four years after the adoption of the United States Constitution. The report on the Committee of the Judiciary initially recommended the creation of a supreme court composed of three justices to be appointed by the governor with the advice and consent of 2/3 of the senate. District judges, the attorney general, and the district attorney for each district were to be similarly appointed. Proposed amendments to replace the appointment system with an election system were summarily rejected at the Texas Convention.
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During the second quarter of the 19th century, President Andrew Jackson led the reform toward the adoption of partisan elections as the method for choosing judges. This movement was part of a new philosophy favoring the popular election of all public officials, known as “Jacksonian democracy.” New York’s switch to partisan elections in 1846 began a landslide change, and by the outbreak of the civil war, fifteen years later, 22 states had followed the lead and adopted the partisan election system. Texas made the switch in 1850, only five years after adopting its first constitution. Although a switch back to the appointment process was made during the civil war and reconstruction years, Texas’s Constitution adopted in 1876 provided for the popular election of judges.
Discouraged by the partisan election system, the nationwide judicial selection reform movement broke historic ground in 1940 when Missouri adopted a merit judicial selection plan. In Texas, following the completion of a five-year study of the state’s judicial system in 1946, the Texas Civil Judicial Council proposed an amendment to article V of the Texas Constitution, which included a merit selection plan for selecting all Texas judges, similar to the Missouri Plan. However, the amendment was not adopted by the legislature.
In 1987, 60 Minutes broadcast a news story entitled “Justice for Sale?,” which renewed the debate regarding the partisan election system in Texas. The focus of the news story was the case, Texaco v. Pennzoil, and the campaign contributions made to Texas Supreme Court justices while that appeal was pending before that court. Texaco representatives contributed campaign funds totaling $72,700 to seven justices while the case was on appeal, and Pennzoil lawyers countered, contributing $315,000. Four justices who received contributions from the parties did not even face re-election.
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Judicial selection systems form a spectrum from partisan popular elections at one extreme to appointment through an independent screening committee at the other. Popular election refers to direct contested election of judges by the public. Such elections may be “partisan,” in which the candidates run under a political party label, or “nonpartisan.” Appointment refers to the selection and appointment of judges by another political officer, typical a chief executive officer. Such appointment may be wholly within the discretion of the appointing officer, the appointing officer may be required to obtain advice and consent (typically from a legislative body), or the appointing officer may be required to choose from a list of possible appointees (with the list selected by a screening committee that is selected by one or more political officers or professional or quasi-governmental groups). A third selection system, commonly referred to as the Missouri Plan, combines original appointment with a subsequent retention election. Under this system, appointment is by the governor from a screening committee list, and a nonpartisan uncontested retention election is held a few years after the appointment. In the retention election, voters simply decide whether the judge should retain his or her office.
The primary advantages of a partisan election system are the fostering of the institutional independence of the judiciary from other branches of government and the recognition of the people’s right to vote. The disadvantages to the partisan election system include:
(1) The possibility that elective judicial selections would result for reasons other than ability, including straight ticket balloting, ballot position, name appeal and name identification;
(2) Determination of elections by an apathetic and uninformed electorate;
(3) Excessive special interest influence due to the need to finance campaigns;
(4) Possibility of court decisions based on purely political considerations;
(5) Drain on court time due to time needed to campaign;
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(6) Discouragement of qualified but politically unconnected persons for seeking office; and
(7) Discouragement of qualified but financial unable candidates due to costs of campaigns.
The primary advantage espoused in favor of the appointment system is decisional independence. Judges are not concerned about the impact their decisions will have on campaign contributors. The disadvantages of the appointment system include:
(1) rigging and packing of appointments;
(2) backroom lobbying and deals;
(3) excessive influence by the governor and other politicians who appoint screening committee members;
(4) excessive influence by the chief justice and other judicial members over lay and lawyer members on a screening committee;
(5) excessive influence by the bar and lawyers; and
(6) discrimination against minorities.
Critics of the retention election system contend that retention elections are universally recognized as ineffective and meaningless in terms of voter participation. For example, in Missouri, only one judge was removed in such an election in forty-eight years, and throughout the nation, only 1.6% of judges in appointment states have ever been removed.
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A survey conducted in 1998 revealed that although Texans thought that campaign contributions made to judges have an impact on courtroom decisions, the majority did not want to change the elective system for selecting judges. In fact, seventy percent of Texans believed that judges should be elected by the people. The next most popular method for selecting judges (noted by 20 percent of the survey respondents) was to have judges appointed by the governor and subject to retention elections.
Legislation was proposed during the last legislative session to reform the selection system, but no legislation was passed. So, for the present, we will continue to operate under our elective system. In fact, five of the seven justices on the Fourth Court are seeking re-election this year, and I urge each of you to vote.
The other topic I wanted to discuss with you today is juries and their value to the justice system. Juries resolve fact questions. For several hundred years, both in this country and in England, the jury was given a great deal of latitude in this task.
The tools a jury brings to this process are many and useful: twelve lifetimes of experience. Any average jury contains a mixture of community values and viewpoints: male/female; Democrat/Republican/Independent; conservative/moderate/liberal; religious/nonreligious; rich and poor. The jury has an advantage shared by no one. Pooled knowledge. They enjoy a community of knowledge, and they pool that knowledge in search of truth and justice.
Despite its long history, however, this country has witnessed a violent attack on the jury system for the past ten years. This attack reached presidential-campaign status in 1992 when Vice President Dan Quayle asserted that a “litigation explosion” was occurring, causing the number of tort claims to skyrocket and, along with them, the amount of money sympathetic juries were willing to award undeserving plaintiffs. Vice President Quayle did not specifically target juries, but the proposed reforms did: limits on jury awards for pain and suffering, for example, or caps on punitive damages. As the most visible part of the legal system, juries have been singled out as the symbol of problems, real or imagined, in the system.
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This attack has initiated a national debate about the legal system, and, implicitly, a debate about the effectiveness of our juries. This debate has intensified in the wake of several high-profile criminal and civil verdicts, verdicts with which much of the public strongly disagreed.
In Texas, where a broad constitutional right to trial by jury has always been recognized, the debate has been waged, as well, and has resulted in tort reform legislation, passed in 1995. This legislation put a cap on what juries could award in punitive damages; imposed sanctions for the bringing of frivolous lawsuits; and limited the applicability of some consumer laws.
The Texas judiciary, who should, in my opinion, always support the jury system, have on occasion joined the fray against juries. This is regrettable, and I strongly disagree. Since 1891, the Texas constitution has stated that no court above the court of appeals may reverse a jury’s determinations of the facts of a case. According to our constitution, then, the Supreme Court can review legal issues, but it may not question a jury on the facts. Indeed, even the court of appeals may overturn a fact determination only if it finds that the determination is against the overwhelming weight of the evidence. This is a strenuous standard, and it sends a strong message about our founders’ belief in the integrity of jury systems.
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The Supreme Court, in recent years, has been steadily encroaching on this constitutional provision. Most alarming is a recent decision by the Court in which Justice Hecht suggested that the issue of whether an insurance company acted in bad faith when it denied an insured’s claim should be decided by a judge rather than a jury. This suggestion, with which three justices agreed, would have far-reaching implications. It’s a bad suggestion. We have, as a state and as a nation, always valued juries for their ability to sift through various versions of the same story and to assess witness credibility. These advantages are particularly suited to determining whether someone acted in bad faith.
The legislature and judiciary are not alone in their distrust of juries. There is growing public dissatisfaction, as well. But public opinion is being shaped by a lack of information and, in some cases, unadulterated misinformation. The simple truth is that most people have not had much personal contact with the legal system. In a recent survey, only six percent of those responding mentioned actual jury service as a source of information about juries. The rest got their information from the media and from formal education, in that order.
Much of what the public believes it knows about juries, it has gotten from the skewed representations of politicians who are often backed by special interest groups. These groups, understandably enough, are interested in winning their cases, not in the abstract pursuit of justice.
Let us speak plainly. Not every case has merit. There are frivolous lawsuits. Not every defense to a lawsuit is much of a defense, either. Some parties deserve to win; some deserve to lose. Merit is not broken into plaintiff versus defense; it never has been. My point is not that one side or the other should win. In the words of the federal marshal in The Fugitive: “I don’t care.” My point is that juries have been able to figure out these things for a thousand years or so, and I want them to keep doing it.
Intrusions on the jury’s rights, whether by the legislative, judicial, or executive branches of government, are intrusions on the rights and privileges of free citizens. Every elected or appointed official runs the danger of falling into the arrogance of believing that they he or she knows more than the people who put them there. Bad mistake!
We swim in a sea of misinformation. Let us examine some of the more common claims about jury performance.
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• Claim #1 - There is an “explosion” of personal injury litigation
Not so. Between 1995 and 1996, injury claims in Texas brought by consumers represented about 5% of new case filings in district and county courts. Three times as many new filings were made in the area of family law, and almost twice as many were made in the collections area, or contract law. Nationwide, only 5% of new filings are tort claims. Far from representing an “explosion,” the Texas figures actually represent a decline in tort litigation in the 1990s.
• Claim #2 - Juries in civil cases award too much money
This claim is fueled by media accounts of high-profile civil suits. But the accounts are often incomplete. For example, the media widely reported the jury award of nearly $3 million to a grandmother who sued McDonalds’s after she was burned by a cup of coffee she purchased at the take-out window. There was a great public outcry about that award. But the public didn’t hear everything that the jury heard in that case. The jury heard that the woman suffered third degree burns throughout her inner thigh area and was hospitalized for eight days, undergoing skin grafts and the removal of dead and damaged skin. The jury heard that McDonald’s had received more than 700 complaints over ten years by other people burned by its coffee. The jury heard that McDonald’s knew that its coffee was dangerously hot, and it did nothing. And the jury heard a McDonald’s representative testify that, in spite of the terrible injuries suffered by this woman and others, McDonald’s had no intention of reducing the holding temperature of its coffee, which at the time was 185 degrees. And, when this grandmother offered to settle with McDonald’s for $20,000, McDonald’s refused.