September 3, 2009

Judicial Power: Judges are elected, but rarely challenged; Lawyers fear reprisal, expense

Racine County's judges serve at the will of the people. Our magistrates serve six-year terms with one, two or three judges up for election every year.

But these powerful, and coveted, positions are rarely contested. The last competitive municipal race in Racine County was in 2004 when Judge John Jude emerged from a field of five to replace Judge Emmanuel Vuvunas.

We found only two instances of a challenger taking on an incumbent judge in the last 20 years, and only one of those went to election. Mark Nielsen took on Judge Gerald Ptacek in 1988 after Ptacek was appointed to the bench by Gov. Tommy Thompson. Nielsen lost the election. Judge Charles Constantine was elected to the bench in 1996 after announcing he would challenge Judge Nancy Wheeler. Wheeler declined to seek re-election.

Other than those two examples, Racine County's 10 Circuit Court judges have been re-elected without challenge for years. Just this past year, judges Wayne Marik, Faye Flancher and Allan Torhorst were re-elected to six year terms without opposition.

Judge Stephen Simanek at a recent hearing

Next spring judges John Jude and Stephen Simanek are up for re-election. Simanek has already announced he's retiring, which opened up the seat Gene Gasiorkiewicz and Georgia Herrera are running for. Jude likely will seek re-election, and likely will be unopposed. (If a third candidate were to enter the race, they're more likely to compete for the open seat and set off a primary election than they are to take on Jude.)

Despite the few attorneys who run in judicial elections, circuit court judge positions are coveted. "Every attorney thinks about being a judge at some point," an attorney said.

Unlike most elected positions, there are minimum requirements to become a judge. You must have a law degree and five years of legal experience to run for election, which makes sense given the technical nature of the job. In return, the job pays well: about $119,000 per year. The salary is covered by the state and is the same for all circuit court judges in Wisconsin.

There are other benefits. Judges carry a certain prestige in the community and the the work itself is generally less stressful than being an attorney.

One lawyer summed up the difference between being a lawyer and judge with a true story about a Racine County judge standing on a tee at Meadowbrook Country Club. He had a trial the next day and noted to his golfing partners that if he was a lawyer on the case he'd be working instead of golfing. But as a judge, he didn't have the same stress.

"Life is a stress sandwich as a trial attorney," the lawyer said. "... Judges work hard. But it's a different kind of work."

But for all the benefits, few attorneys pursue judicial positions and there's little turnover among the ranks of Racine County judges. Why is that?

To investigate that question, we interviewed four prominent Racine attorneys, including three who have considered running for circuit court judge. All four agreed to talk off the record so they could speak candidly. Here are their reasons for the lack of contested judicial elections:

1. It's a long shot.
Incumbent judges are historically difficult to beat. The re-election rate for judges, who serve six-year terms and have immense name recognition, is between 95 and 97 percent. Any challenger, no matter how qualified, is likely to lose.

"Unless you've really got an issue, you're not going to win," said one attorney.

"It's hard to campaign," added another attorney. "What do you say? 'I can be fairer than that guy'?"

Incumbent judges are difficult to defeat because ...

2. Challengers fear reprisal. "If you strike the king, you must kill him," one attorney said dramatically. If you take on a judge and lose, you not only risk the scorn of that judge, but the nine other incumbent judges who have no interest in facing challengers of their own. "The others judges don't like that," said one attorney about challenged elections. "They don't want that (contested elections) to be a trend."

Another lawyer said bluntly: "You don't want to piss off a judge."

(The lawyers interviewed disagreed on the degree of reprisal challengers need to fear from judges. While one said it's a real threat to clients' cases, others said any judge would set aside personal differences and rule based on the law. But everyone agreed challenging a sitting a judge would muddy the waters, at least for awhile.)

Sitting judges are also safe from election challenges because ...

3. You just don't do it. Lawyers are fundamentally conservative in their approach to life, the attorneys said. They like order and known quantities, and you know what you'll get in the incumbent. A challenger creates uncertainty, and the entire legal community - attorneys and judges - will react against that uncertainty.

All that said, the real No. 1 reason judges go unchallenged ...

4. Money. Gasiorkiewicz and Herrera will each spend at least $100,000 between now and next April to get elected, with the total election spending probably reaching over a quarter of a million dollars. That's a lot of money for a job that pays $119,000 per year. Unless you have deep pockets, judicial candidates need major contributions to run a countywide election. On a practical level, this is how challengers are kept in check.

It's difficult to raise money in a judicial election, and few, if any, attorneys are going to give money to someone challenging a sitting judge. Actually, they'll probably give money to the sitting judge just to curry favor with the person who may hear their case.

5. Public is uninformed. This last reason I suggested to the attorneys. In my experience, it's difficult, if not impossible, for outsiders to tell if a judge is doing a good job. When I asked the lawyers how they evaluate judges, all four gave a version of this response: "If they rule in my favor on a motion, they're doing a good job. If they rule against me, they're not." It's a joke, but it suggests a problem with judicial elections.

First, criminal courts - arguably the easiest to evaluate - only make up two of Racine County's 10 courts. The others include: Traffic, misdemeanor, misdemeanor and juvenile, juvenile trial court, probate, family and two civil courts. Criminal cases are covered in the newspaper and judges are responsible for sentencing, so there's something to react to.

But how does the public tell if a judge is doing a good job with traffic cases? Or handling divorce cases well? It's difficult, the attorneys said.

"Judges work without observation," one attorney said, adding there's not much difference from one judge to the next. "Only at the margins," they said.

(That said, judges have tendencies, according to the attorneys. For example, Judge Stephen Simanek rarely grants a motion to suppress evidence, one attorney said. "I can't remember the last time Simanek granted a motion to suppress evidence," they said. That's relevant now because former mayor Gary Becker was just in court trying to get evidence suppressed. Simanek ruled against all of the motions. Similarly, there are some judges the District Attorney's office like and others defense attorneys hope for.)

One possible tool to evaluate the technical skills of a judge is how often they're reversed by the court of appeals. But even then, a lawyer said, 90 percent of a judge's decisions are non-reviewable, leaving a small sample size to work with.

Historically, two sources helped inform the public on judicial candidates. One was a survey of the Racine Bar Association's members and the other was The Journal Times. Both have lost effectiveness in recent years, lawyers said.

The bar survey, which would ask lawyers to evaluate candidates, has been watered down and may not happen at all this year, an attorney said. There's a question of whether the survey is an effective, or even appropriate, tool.

"The bar is struggling with that question," the attorney said.

In 2006, the Racine County Bar Association sent out a survey to its members asking them to rate the county's judges. The survey irritated judges, who questioned its intent. Nevertheless, the JT published some of the results. Judges Emily Mueller and Wayne Marik scored the highest on "overall judicial ability" with a 4.2 out of 5 rating. Judges Allan Torhorst and John Jude scored the lowest with 3.3 and 3.5 ratings, respectively.

In 2004, the bar association surveyed members on the five candidates running to replace Vuvunas. Jude, the eventual election winner, received the most votes. Herrera, who advanced through the primary but lost the general election, finished third in the survey.

The attorneys interviewed for this story said it's likely, but no certainty, the bar association will conduct a survey for the spring election.

The other historic filter for judicial elections, The Journal Times, no longer has the clout to sway elections, attorneys said. The paper no longer endorses in elections, and if it did, likely doesn't have enough readers to make an impact.

The issue of informing the public on judicial candidates could become more important in the next two years. After a relatively stable run among Racine County's judges, change may be coming in the next few years. Two, or even three, judges may retire, opening the door for local attorneys to run and the public to shape the makeup of the local courts.

The problem is settling on the important issues for judicial candidates. Candidates really can't talk issues, because they're expected to rule on each case based on existing state law. For example, someone running for the circuit court probably won't talk openly about how they'll enforce drug laws or whether they'll favor the mom or dad in a child custody case. They can't make election promises about how they'll rule from the bench.

Instead, the elections tend to focus on experience, endorsements, name recognition and flat-out campaigning. The attorneys we talked to said coverage of the election should focus on evaluating candidates' claims for experience and the quality of their past work, following the money that fuels their campaigns and trying to assess if the candidates have the "proper temperament" for the job.

One specific question an attorney suggested was to ask candidates if they have any policies they'll enforce from the bench. If the candidate says yes, it should raise flags, the attorney said.

"If they believe as a judge they can accomplish great things as a matter of policy, don't let them anywhere near the bench," an attorney said. "You save souls one at a time."

Somewhere in all this, it's probably worth asking if it's worthwhile to elect judges. The races do little to separate candidates based on legal philosophy, and if they did, there's no way to evaluate whether judges are following through on their campaign promises.

One lawyer interviewed suggested it's best to elect Circuit Court judges so communities maintain local control over the choices. (The alternative would be to have the governor appoint judges, which would shift control away from local governments.) The same lawyer said appellate and Supreme Court justices (all elected) should be appointed to avoid trivial elections that hinge on issues with little relevance to the judges' actual job (ie. the past two Supreme Court elections).

Another lawyer suggested the problem with the current system is circuit court judges are overpaid. In the past, judges were seasoned attorneys toward the end of a respected career. They would serve one, maybe two, terms and retire, opening up seats for other attorneys.

Now, younger attorneys are running to become judges as a way to lock in a high salary and to, basically, secure a job for life, the attorney said. Reducing judges' salaries would reduce the pool of interested candidates - likely to retirement-age attorneys willing to take a pay cut to transition out of their practice - and increase turnover on the bench, they said.

"I'm not going to say (younger candidates) were incompetent," the attorney said. "But they didn't have the experience to be a judge."

The power of incumbency, the fear of reprisal, incredibly expensive elections and no good way to evaluate judges means judicial elections will largely remain a mystery to the public for the foreseeable future. It also means incumbent judges, despite serving at the will of the people, will retain immense power as the guardian of courts that effect thousands of lives every year.

"Politics is not the check on judges," one attorney said about judicial elections.

The good news, at least for now, is Racine County's sitting judges are all good at their jobs, according to the attorneys interviewed.

"There are judges I've disagreed with all the way to the Supreme Court," one attorney said. "But for the most part we have a pretty good set of judges."

Another attorney said the local bar association - arguably the best source for evaluating judges because they work with them daily - takes a serious look at judicial candidates and works to support only qualified attorneys for the job.

"We know the quality of people's work," they said. "We know who is able to pick up on the sophisticated law we're practicing."

But they also hinted the real political battles aren't waged on election day, but within the bar association to gain support from a legal community that can make or break candidates with fundraising, endorsements and word-of-mouth campaigning.

"Who we're going to support gets very political," the attorney said.


  1. "'If they rule in my favor on a motion, they're doing a good job. If they rule against me, they're not.' It's a joke, but it suggests a problem with judicial elections."

    "The good news, at least for now, is Racine County's sitting judges are all good at their jobs, according to the attorneys interviewed."

    That says it all. No one who plays the game is going to do anything to change the game.

    Even speaking off the record, they know they are speaking to a reporter and for publication.

    Speak to them as a potential client, and you will get the real stroy: it's about who has the most influence with which judge.

    You've interviewed the choir about how the preacher is doing. Try talking to some of the people in the pews.

    (And if $119,000 a year is enough to tempt some lawyers out of private practice, well, they need more practice.)

  2. It should be difficult to oust an incumbent judge. They need a certain level of security in order to do their jobs. They must often make legally correct, though politically unpopular decisions. That is one of the reasons they have long terms.

    In addition, the general public often clamors for "tough on crime" judges while not realizing that judges spend a lot of time working outside the criminal branches - making decisions about divorces, contracts, torts, child custody, and the like. I want a judge who can handle all of those things and who is insulated from the ebb and flow of electoral politics.

  3. I don't know if they're different in Racine County, but I worked for a judge as his court administrator for a while in another state, and I noticed he'd be completely worn out from stress by the end of the day. Of course, he was a juvenile and domestic relations court judge, and many of the cases were difficult to hear, let alone to have to decide. But it sure didn't look like easy work to me.

    In New Jersey, the governor appoints judges with legislative confirmation. By tradition if not law, a political balance is kept in the vicinage. The system seemed to produce very good judges, at least while I was there in the '70s and '80s.

    California has an interesting system. Judges are appointed, but after a term they have to stand for a re-confirmation election by the voters to help weed out bad ones.

  4. Just like it should be hard to oust an alderman. Is that correct Mr. Helding? Keeping the same group of guys in power at every level only tightens their grasp on the average guy. Then the high powers don't have to deal with their voters holding them accountable as often. Makes it easier to vote in favor stupid spending that we can't afford. SP

  5. What a great story. Should open the eyes of the public as to what really happens in the area of law. A worth while reading. Thanks

  6. I totally and completely agree with Mr. Helding.

    Unfortunately there is a big difference between what is just and what is fair. It is up to the judge to be just, while the electorate usually wants whats fair.

    If you have a problem with the laws people are convicted under, it is not the judges with whom you should be upset- it is the legislature.

  7. SP-

    That's not what I said. Judges are different than legislators. A judge's job is to render decisions about the law. They must do so impartially and without regard to the prevailing political winds. When the public is calling for someone's head, it is up to a judge to look beyond the moment and protect all of our rights by protecting the rights of the accused.

    Legislators are a different story. Most of us have relatively short terms (2 years). In the case of the City Council, half of us stand for election every year. Political winds can sweep us in and out of office, as they should.

  8. No Greg, it is not the judges position to render decisions "about" the law, it is the judges position to render decisions based on the rule, intent and (sometimes) the letter of the law. Judge are supposed to base their decisions on the evidence in a case, weighed against the intent of the laws concerning it, and with a certain amount of lee-way, inturpret the laws as it applies to each individual case based on the intent of the law.

    I think this idea that California has about re-evaluating a new judge after the first couple of years is a great idea. Only, it falls short. All judges, everywhere, should be re-evaluated by the public in every major election. And the idea of appointing a judge, at any level, for life, is just plain stupid. NO ONE should ever be appointed for LIFE in ANY position, EVER!

  9. I am very glad to read an article like this. I disagree, however, that it should be difficult to unseat a sitting judge. Although they have to do their job within the parameters of the law, they have great discretion in setting bond amounts, as well as sentencing. This all speaks to the safety of our community.

    One of the chief complaints about Racine is the crime rate. This is directly related to whether or not judges allow known criminals back on the street. For example Judge Jude recently allowed an accused child rapist out on bond with only a signature!!! The charge is 1st Degree Sexual Assault of Child with use of threat or force - and he is now in the community because of this judge's choice. (Lucas Gilliam on CCAP). I think if the community knew more about things like this and some of the light sentences that are handed out - it wouldn't be as hard for sitting judges to be unseated. If anyone runs agains Jude - I will vote for them!

  10. Anon: 12:27 "...inturpret the laws as it applies to each individual case based on the intent of the law."

    Did you mean interpret? Are we talking about more than one law, as they apply to each case? "Interpret the laws... based on the intent of the law."? You mean interpret the laws based on the intent of the lawmakers who created the laws?