Being an Elected Judge in an Era of Angry Voters

It's tough being a good judge, especially when the voters are angry and ill-informed about the ethical obligations of your job. 

In Nebraska  Judge John P. Murphy  who is up for a "retention election" is being held to account for a decision to "recuse" himself form presiding over cases involving a law firm that filed a judicial complaint against a colleague.  The colleague, Judge Kent Florom was removed by the Nebraska Supreme Court for judicial misconduct; Judge Murphy objected to the actions of the law firm that filed the complaint against his former colleague.  Instead of prejudicing the law firms' clients Judge Murphy is doing what the rules of ethics require him to do--not hear the law firm's cases.  Here's the rest of the story from reporter Leslie Reed at the Omaha World-Herald:

"Opponents are asking voters to oust a Lincoln County district judge when he stands for retention on the Nov. 2 ballot.  District Judge John P. Murphy (pic, right)  of North Platte is among more than 50 Nebraska judges whose names will appear on the ballot for a constitutionally mandated vote on whether they keep their jobs.

Mike Groene, leader of the Western Nebraska Taxpayers Association, said he and other citizens have been calling radio stations and writing letters to newspaper editors in a word-of-mouth campaign against Murphy.  'There’s no political action committee — it’s just citizens getting involved who are irate with his behavior,' Groene said. 'He’s costing us tax dollars, he’s costing individuals when they appeal and he’s costing the court system.'

[Judge] Murphy came under fire recently for his decision to recuse himself from handling cases involving members of a North Platte law firm whose complaint led to the removal of Lincoln County Judge Kent Florom.

[Judge] Florom, a county judge in North Platte, was ousted by the Nebraska Supreme Court for threatening a local prosecutor and trying to influence a juvenile court case.  [Judge] Murphy said he recused himself because he disagreed with how the law firm handled its complaint against Florom.

'I did what I was supposed to do,' he said, saying he recused himself because he did not think he could be impartial in handling the firm’s cases.

However, in a pending ethics complaint against Murphy, former State Sen. Ernie Chambers of Omaha says the judge’s actions would discourage other lawyers from coming forward to report suspected judicial misconduct.  The Nebraska Constitution requires judges to go before voters at the first general election that occurs three years after their appointment. After that, they stand for retention every six years.

Groene said he was concerned about the misconduct allegation, as well as Murphy’s relatively low approval rating by lawyers who practice in his court and the number of his decisions that are overturned on appeal. Groene also said he was angered over Murphy’s decision to cancel an election on a petition drive that challenged the use of a hotel tax to pay for North Platte’s Golden Spike monument.

Murphy said it’s in the voters’ hands whether he should be retained after 27 years on the bench.

Other judges facing a retention votes this November include:

---Chief Justice Michael Heavican, who will face voters for the first time since his October 2006 appointment.

---Lancaster County District Judge Jeffre Cheuvront, who made national headlines with a 2007 order prohibiting a woman from using the word 'rape' when she testified against a man accused of sexually assaulting her.

----Douglas County Juvenile Court Judge Elizabeth Crnkovich, who received the lowest approval rating of any judge in the state in a recent performance evaluation conducted by lawyers.

The Nebraska State Bar Association makes no recommendation whether an individual judge ought to be retained or removed, said executive director Jane Schoenike.  However, it attempts to assist voters by conducting a performance evaluation every two years in which lawyers submit anonymous reviews of the judge’s skills and recommend whether the judge should be retained. The results of the evaluation are available on the bar association’s website.

The Nebraska Judicial Branch also provides an online voter’s guide on judges, including brief biographies of some judges. 'We urge citizens to take the decision very seriously. They have the ultimate responsibility,' said Schoenike.

[Judge] Crnkovich, a former juvenile court prosecutor, was appointed a juvenile court judge in 1995. She has a lengthy résumé of involvement in issues facing youths and played a leadership role in developing Douglas County’s 'problem-solving'  courts, designed to aid juveniles and their parents in overcoming chemical dependency.  However, in the 2010 bar association survey, only 37.3 percent of lawyers participating thought she should be retained in office. She received her lowest marks for temperament and demeanor and for making  'undue personal observations or criticisms' of those in her courtroom.

[Judge] Cheuvront’s controversial ruling came in a case in which a woman accused a man of taking advantage of her drunkenness to sexually assault her. He granted a defense attorney’s request that the woman be forbidden from using the word 'rape' when she testified about what happened to her.  Cheuvront nonetheless appears to be a well-regarded judge among lawyers who practice before him. Appointed to the bench in 1983, Cheuvront was recommended for retention by more than 91 percent of the lawyers who evaluated his performance.  Cheuvront said that facing a retention vote every six years is better than having to raise money and campaign for office, as judges in some states have to do.

'It’s a good balance, and it serves the people of Nebraska very well,' he said."
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Look, Judge Murphy may be a martinet but, he's right--if he can not be fair and impartial in the matters before him brought by this law firm, the code of judicial conduct requires that he remove himself.  This "angry taxpayer" is right, Judge Murphy's decision probably costs the taxpayer the services of the guy they hired to be judge.  On balance, I think removing a judge because of an "ethical" decision sets a pretty poor precedent for Nebraskans, but this sort of thing seems to be the thing of the day.  We all, are in our Robespierre-moment.