Judicial independence is the freedom a judge should have to decide a case based on the facts and the law, not public opinion, the views of special interest groups or even a judge's own personal beliefs.

According to the American Bar Association (ABA) committee on judicial independence, each of the three branches of government has specific duties and responsibilities and a system of checks and balances was created to ensure no single branch would dominate the government. A crucial part of this governmental structure is an impartial judiciary.

Recognizing the importance of this governmental structure, each state has a similar system within their state constitutions. Unlike other elected officials, under Ohio's system, judges are not elected to represent the views of the people who vote for them. In the words of Supreme Court Justice Anthony M. Kennedy, "The law makes a promise - neutrality. If the promise gets broken, the law as we know it ceases to exist. All that's left is the dictate of a tyrant or perhaps a mob."

The ABA argues that no one is served by special interests promoting narrow agendas through unwarranted, inappropriate criticism of judges. As stated by Tennessee Supreme Court Justice Adolpho A. Birch, Jr., "Judicial independence is the judge's right to do the right thing or, believing it to be the right thing, to do the wrong thing."

• Fifteen states have nonpartisan elections for their high court.
• Seventeen have uncontested retention elections after initial appointment.
• The remaining 12 states grant life tenure or use reappointment of some type.
• With regard to the INTERMEDIATE APPELLATE COURTS, five states have partisan elections.
• Twelve states have nonpartisan elections.
• Fourteen states have uncontested retention elections after initial appointment.
• Eight states grant life tenure or use reappointment of some type.
• Eleven states do not have intermediate appellate courts.
• Eight states have partisan elections for all GENERAL JURISDICTION TRIAL COURT judges.
• Twenty states have non-partisan elections.
• Seven states have uncontested retention elections for all general jurisdiction trial courts.
• Four states use different types of elections in different counties or judicial districts.
• The remaining eleven states grant life tenure or use reappointment for their lower court judicial candidates.

While these judicial elections are non-partisan, a 2002 statewide poll conducted by Opinion Strategies, Inc. for the LWVO Education Fund found that 83% of Ohioans believe judicial decisions are affected by political contributions. There are complaints that Ohio's judiciary does not appear to be independent.

Citizens expect legislators and executive officers to be partisan, but they expect judges to be impartial when deciding a case. When an Ohioan appears before a judge in either a criminal or a civil case, he/she expects the judge to decide the case on the facts and the law, not on the basis of which attorney or which litigant contributed the most to the judge's campaign. For this reason, the system of selecting judges remains a topic for debate.

Many states use some type of merit selection, under which judges are appointed to the bench (typically upon the recommendation of a non-partisan panel), then required periodically to stand for re-election in an "up-or-down vote." The LWVO's position favors such an appointive process coupled with periodic retention elections, sometimes known as merit selection or the Missouri Plan. The American Bar Association and others have attempted to abolish competitive elections for judicial seats.

The LWVO has had a position in favor of merit selection of judges since 1921. In the 1947-52 Constitution Study, the LWVO again adopted an "appointive judiciary position." During the 50's and 60's the legislatures failed to put this on a ballot, so at the 1969 LWVO Convention, the position was dropped. A study of the judiciary article of the constitution led to re-adoption of the LWVO's position in favor of merit selection of judges in 1973. It was amended May 2003.

The position states: LWVO believes that the selection and tenure of judges are fundamental matters and therefore should be provided for in the Constitution. LWVO supports policies that promote the independence of the judiciary. LWVO supports constitutional revision to provide for:

1. Nomination of judges for Appellate and Supreme Courts by judicial nominating commissions that are carefully balanced and broadly based. Commissions must be nonpartisan or bipartisan and must include both legal and lay members and not be dominated by the former.
2. Appointment of judges by the Governor from lists provided by a nominating commission.
3. The inclusion of constitutional provisions to require appointive judges to run against their own records in noncompetitive elections.

According to Ray Schotland, a law professor at Georgetown University, approximately 14% of judges did not face competitive election in 1900. Today, after concerted efforts by various entities to end the practice of electing judges, 23% of trial judges do not face competitive elections and 47% of appellate judges do not do so. "At that rate," Professor Schotland said, "we'll end competitive elections for trial judges in only 770 years and for appellate judges in only another 160 years."

In March of 2003, the LWVO and the Chief Justice of the Ohio Supreme Court convened a one-day forum on judicial impartiality. The John Glenn Institute for Public Service & Public Policy, the Ray C. Bliss Institute of Applied Politics, and the Ohio State Bar Association co-hosted the event, which brought judges, attorneys and legislators together with business, labor and citizen groups for a discussion of what could be done to assure a truly independent judiciary. The following recommendations for reforming the election of Ohio's judges came as a result of this meeting.

Lengthen judicial terms.
Increase the term of office for common pleas judges from 6 years to 10 and for appeals court judges and justices of the Supreme Court from 6 years to 12. If judges' terms increased, they would not have to raise as much money as often to run for office, and they would be further removed from speical-interest influence.

Raise the pay.
Salaries paid to Ohio judges should be indexed to a percentage of salaries paid to comparable federal judges. Municipal judges should receive 95% of the salaries of common pleas court judges. Once indexed, the salaries of Ohio judges would be accompanied by annual cost-of-living adjustments. This recommended increase in pay should attract a greater number of qualified candidates to judicial positions.

Raise qualifications.
Increase the minimum legal experience required of judges and mandate specific training for newly elected jurists. The specific recommendation was that judicial candidates be required to complete 40 hours of course work designed specifically for prospective judges.

Finance campaigns with public money.
Candidates would not have to rely so heavily on campaign donations if tax dollars could be used to help them get their message out to voters.

Require disclosure of contributions.
If disclosure laws mandated faster reporting, comprehensive information (such as the donor's employer), and disclosure of third-party contributors, voters would have a better understanding of the special interests seeking to influence elections.

Expand the reach of voter guides.
Voters typically don't get enough information about candidates for judicial office before they go to the polls. Wider distribution of nonpartisan voter guides could help voters make better decisions on Election Day.

These recommendations met with some objection. As a January 2004 Cincinnati Post editorial argued, "None of these changes would do much to improve judicial selection in Hamilton County. We'd still have the [political party in power] picking our judges; they would just serve longer and make more money," the editorial complained.

The reform suggested by the Post is to end the system of the Governor giving county political party chairs control over appointments to fill judicial vacancies. The Post recommended that instead, the governor could rely on non-partisan screening committees to make or screen nominations, giving law school deans, local bar associations and other knowledgeable citizens a voice in the process.

According to the Post editorial, nearly half of all judges get started on the bench by appointment to a vacancy and incumbent judges overwhelmingly win re-election. The Post editorial argues, however, that because Ohio's 88 county courthouses are the last bastions of patronage employment, change is unlikely.

Proposals have been submitted by the Ohio State Bar Association to recent governors that would establish a nonpartisan qualifications commission to screen potential vacancy appointees and make recommendations to the governor. Although these proposals have been rejected by those elected officials, Governor Taft does have a screening and interview process for potential appointees.

As in some other states, judicial candidates cannot discuss their opinions on popular issues like abortion, the environment, etc. because, if they did, they might appear to be biased toward a particular viewpoint.

A judge is to apply the law to the facts of a case and then make a decision that, in many cases, he or she would not choose as a matter of politics, policy or personal viewpoint.

Ohio Chief Justice Thomas Moyer relates that when he traveled to Ukraine as part of the Rule of Law program, he was asked about how many law enforcement officers it took in the U.S. to enforce a judgment or a court order. The answer he gave? It takes none. It can be argued that this difference from many other countries is due to the restraint on the speech of judges regarding policy issues.

In a guest column in the Cincinnati Enquirer, April 21, 2002, Ann Marie Tracey, at that time a judge with the Hamilton County Court of Common Pleas, said "People must trust courts to let courts resolve their disputes. At some pivotal point we decided courts were less messy than duels and shoot-outs. Of course, people will not resort to courts if they don't think judges will treat them fairly, or that a judge's views may dictate the case outcome. A judge's stating views on disputed issues… unnecessarily invites citizens to lose this confidence."

Judge Tracey went on to write, "besides resolving disputes, judges have another role. Judges provide a 'check and balance' to the legislative and administrative branches by addressing constitutional challenges and deciphering laws in light of other laws and requirements. Selecting judges because they mirror voters' views undercuts the judiciary appropriately performing this unique role."

There are those who believe otherwise. According to a Cincinnati Enquirer editorial of April 2, 2002, this restriction on the speech of judicial candidates favors incumbents. As voters can "evaluate current judges by past decisions and decipher where they stand on abortion, gun rights, tough sentences or other issues" but have no basis on which to evaluate candidates to the bench, incumbents are more likely to be elected, the editorial suggests.

LWVCA member Gretchen Fisher, a domestic relations attorney of 16 years, counters with, "Reading an individual case decision does not necessarily provide information on where a judge stands on these issues. Judges are faced with the difficulty of distinguishing between cases based on the specific facts of each. A judge ruling that one individual must pay his or her spouse alimony in no sense means that the judge will always award alimony, or even that he agrees with the concept. The length of the marriage, disparity of incomes between the parties, amount of marital property, and probability of future income are just a few of the factors used to determine an award of alimony. Cases outside the domestic relations area have the same distinctions."

Voters cannot know the specifics of each case, and therefore, are unable to accurately evaluate a judge's position on any matter of policy. To have judges speak on their positions may only confuse the issue.

LWVO President Terry McCoy argues that public funding of elections would help to avoid smear campaigns and attack ads. If Supreme Court candidates did not have to raise significant sums of money, they could not be accused of acceding to demands from their fund sources.

Public funding would not totally insulate candidates from attacks, but it would be one important piece in the plan. According to a February 2002 report by the Brennan Center for Justice and the National Institute on Money in State Politics, how a state elects judges appears to affect the amount of money candidates raise. Partisan elections attract the most money while in merit selection states, only one of every 16 candidates even had to raise money.

Another aspect of the financing of judicial elections is that of anonymous donors. According to the Ohio State Bar Association, about $13 million was spent to elect two judges in the 2002 elections cycle. This was more than was spent in all other state Supreme Court races in the country combined. The Bar Association's February 2002 report mentioned that the rise of special interest television advertising also mirrors an increase in the use of attack ads in judicial elections. More than 80% of group ads in the television database attacked judicial candidates, as compared with only 27% of party ads and 18% of candidate ads. Fewer than 10% of group ads had anything nice to say about a judicial candidate. "More than any other phenomenon, the aggressively negative tone of television ads sponsored by independent groups defines the new style of judicial campaigns."

The problem arises from the loophole in campaign finance laws that allows special interest groups to hide their finances by avoiding words in their ads such as "elect" or "defeat" and their close synonyms. The result of courts requiring such "magic words" to trigger reporting requirements is that only 1.2% of 4,451 television spots run by interest groups in the 2000 judicial elections throughout the country were subject to such requirements.

In March of 2004, the American Bar Association adopted a resolution proposed by the Ohio State Bar Association that calls on states to enact laws requiring timely disclosure of all contributions and expenditures by so-called "independent campaign committees." These committees sponsor ads for and against judicial candidates, but, unlike political action committees, are unregulated. Those members or backers who pay for the ads remain anonymous and, according to Attorney Dennis W. Archer, a recent president of the ABA, this "creates a situation that is ripe for abuse."

Leslie Jacobs, an attorney and partner with the law firm of Thompson Hine LLP in Cleveland says, "The problem is perfectly obvious. When judges are elected, the First Amendment not only invites, it encourages bystanders with agendas to sort between the candidates' views and inclinations and then to appeal to voters' biases. Unfortunately, only the most sophisticated voters are inclined to prefer a restrained judge… Most voters seem to want a judge who they think works only for them on the issues they consider most important." According to Jacobs, "if the role of the third branch of government is to maintain our most basic standards, to use sound judgment when elected officials are responding to popular sentiment, and to protect the rights of the minority from abuse by the majority, then we must stop subjecting judges to the same process that allows [individuals] to pursue [their] own agenda by inflaming the public…"