Wyoming's Judicial Selection Process: Is It Getting the Job Done?

Kite, Marilyn S., Fordham Urban Law Journal

INTRODUCTION

The rights guaranteed by the United States Constitution to the citizens of our country mean little without an independent judiciary to enforce those rights. As Alexander Hamilton commented in THE FEDERALIST PAPERS, the method by which judges are selected unavoidably impacts their ability to function independent from political influence. (1) In general, the goals of a judicial selection system should be to encourage judicial independence, recruit the highest quality judiciary, provide for accountability, create a representative judiciary, and maintain public confidence in the fairness and integrity of the judicial system. (2) Any time politics are inserted into the judicial selection process, judicial independence is compromised. (3) Public perception of political influence on the judiciary, whether through money or political affiliation, undermines the citizenry's confidence in the integrity of the system. In the words of the primary author of Wyoming's judicial selection system, R. Stanley Lowe, an orderly society needs a judiciary that commands respect. (4)

In discussing the uniquely American concept of separation of powers, James Madison noted that for each branch of government to have a "will of its own," the members of each branch should have "as little agency as possible in the appointment of the members of the others," ideally requiring the people to select the members of each branch. (5) Madison recognized that selection of the judiciary in that manner would be "inexpedient," however, in part because the primary concern in the selection of the members of that branch of government should be qualification. (6) The rejection of public election of the judiciary left appointment as the only viable method of selection. Appointment was deemed sufficiently compatible with the concept of separation of powers because, as the founders noted, life tenure for federal judges "must soon destroy all sense of dependence on the authority conferring them." (7) Thus, although federal judges are inherently affected by the political process at the outset of their judicial careers because they are appointed by the chief executive and confirmed by the Senate, lifetime appointments minimize political influence over time. (8)

Many state constitutions did not, however, follow the federal model. (9) Thousands of state judicial positions are filled every year across our country by varying methods of selection, including appointments by the chief executive, partisan elections, non-partisan elections, and, as in Wyoming, gubernatorial appointments from lists of nominees chosen by judicial nominating commissions, usually followed by retention elections. (10) Without life tenure, how can states select judges who are independent? The answer lies in the judicial nominating commission form of judicial selection. The advantage of the judicial nominating commission system, as opposed to politically-based systems such as elections or pure executive appointment, is that it focuses on the qualifications of the judicial candidate, rather than his or her political or personal connections. (11) The commission-based system is designed to emphasize the factors which should be relevant in choosing a judge, including judicial temperament, intellect, training, integrity, and experience. (12)

The purpose of this Article is to explain Wyoming's commission-based judicial selection process, study how it has performed over the years, see what lessons we can learn from that history, and consider how it can be improved. Throughout this Article, the focus will be on what attributes of a judicial selection system best result in an independent, accountable, and vibrant judiciary.

A HISTORY OF WYOMING'S JUDICIAL SELECTION PROCESS

Prior to 1972, judges in Wyoming were elected in non-partisan elections. (13) Elected judges, like all political officials, were chosen by popular vote and not, necessarily, on qualifications or merit. (14) If a vacancy occurred during the middle of a judicial term, which apparently happened quite frequently, the governor filled the vacancy by appointment. (15) As is human nature, those appointments were often made on the basis of personal relationships or political affiliation rather than strictly upon the qualifications of the candidates. (16)

In the early 1970s, a movement began among judges and lawyers in Wyoming to change from a politically-based judicial selection system to a process which, to the greatest extent possible, removed the influence of politics from judicial selection and assured appointment of qualified candidates. One of the impetuses of this movement was an American Judicature Society presentation at a Wyoming State Bar meeting about the judicial nominating commission system commonly known as the "Missouri Plan." (17) Two judges who had been elected under the old system--Judge John Ilsley of Sheridan County and Judge Alan Pearson of Park County--were impressed with the presentation and approached Wyoming attorney R. Stanley Lowe with the idea of adopting a commission-based judicial selection system in Wyoming. (18) Mr. Lowe had worked on various Wyoming court improvement projects and sat on the board of directors for the American Judicature Society, so he was well-qualified to guide and advise the state in implementing a new judicial selection system. (19)

The American Judicature Society and the Wyoming State Bar conducted citizens' conferences throughout the state to discuss the advantages and disadvantages of changing the judicial selection process in Wyoming. (20) These citizens' conferences were well-publicized and drew "widely represented audiences." (21) At one of the citizens' conferences, a "geographically and professionally diverse steering committee" was formed to promote the revisions to Wyoming's judicial selection system. (22) Around this same time, Mr. Lowe went to work as an associate director of the American Judicature Society and was, therefore, able to use all of the society's knowledge and resources to structure the best possible judicial selection system for Wyoming. (23)

In order to fulfill the mission of creating a "politics free" judicial selection process in Wyoming, it was necessary to amend Article V of the Wyoming Constitution. (24) Then-State Representative Alan Simpson of Park County (25) introduced a constitutional amendment in the Wyoming legislature, which passed on February 28, 1971. (26) The citizenry adopted the constitutional amendment at the general election on November 7, 1972 and it became effective December 12, 1972. (27) The legislature then passed enabling legislation to implement the constitutional mandate. (28)

STRUCTURE OF THE WYOMING JUDICIAL SELECTION PROCESS

Wyoming's judicial selection process applies to all levels of Wyoming state courts, including the supreme court, district courts, and circuit courts. It starts with the judicial nominating commission, (29) which consists of three attorneys elected by the members of the Wyoming State Bar and three non-attorney electors of the state appointed by the governor. (30) The constitution sets out geographic requirements for nominating commission members, ensuring that the various parts of the state are represented. (31) The chief justice or his or her designee sits as the chairperson of the commission and votes only in the case of a tie. (32) Nominating commission members each serve one four-year term, and the members' terms are staggered. (33) Nominating commission members are unpaid volunteers. The constitution expressly provides: "Members of the commission shall be entitled to no compensation other than expenses incurred for travel and subsistence while attending meetings of the commission." (34)

Wyoming has a single nominating commission for all judicial vacancies, (35) in contrast to other states which have separate commissions for trial and appellate courts and/or districts or regions. (36) The determination to have just one nominating commission was made deliberately. Because an attorney is not eligible for appointment to a judicial office while serving on the judicial nominating commission, or for a period of one year after expiration of his or her term on the commission, (37) there was a concern that multiple commissions would result in fewer qualified attorneys being able to serve as judges. According to Mr. Lowe, considering Wyoming's small population and, consequently, small pool of judicial candidates, it was important to keep as many candidates eligible for appointment to vacant judgeships as possible. (38) The drafters recognized, however, that a single commission may not be suitably acquainted with potential candidates in all regions of the state to make proper appointments. In order to rectify this situation, article V, section 4(c) of the constitution provides:

   In the case of courts having less than statewide authority, each
   judicial district not otherwise represented by a member on the
   commission, and each county, should the provisions hereof be
   extended by law to courts of lesser jurisdiction than district
   courts, shall be represented by two nonvoting advisors to the
   commission when an appointment to a court in such unrepresented
   district, or county, is pending; both of such advisors shall
   be residents of the district, or county, and one shall be a member
   of the bar appointed by the governing body of the Wyoming
   state bar and one shall be a nonattorney advisor appointed by
   the governor. (39)

The judicial nominating commission ("JNC") operates pursuant to rules adopted by the Wyoming Supreme Court on March 5, 1973. (40) The JNC rules govern meetings of the judicial nominating commission (Rules 1-2), officers (Rules 3-4), record keeping (Rule 5), procedures for nominations to fill vacancies (Rules 6-9), and procedures for judges already holding office to seek retention (Rule 10). (41)

When a judicial vacancy occurs, the commission seeks nominations for the judgeship. (42) In order to qualify to be a supreme court justice, the candidate must have been in actual practice for at least nine years, be at least thirty years old, be a citizen of the United States, and have resided in Wyoming for at least three years. (43) The qualifications for district and circuit court judges require less in the way of experience and years of residence. (44) A candidate submits an "expression of interest" indicating his or her willingness to be nominated for a vacant judicial position. (45) The expression of interest is a lengthy document, calling for information about the candidate's background, professional experience, personality, and temperament. (46) The candidate is also asked to submit a writing sample and names of multiple references. (47) The political affiliation of the candidate is not called for and is generally unknown to the commission unless it is obvious from his or her professional experience. (48)

The JNC rules expressly recognize that well-qualified persons may be reluctant to throw their names in the hat for a vacant judgeship. Thus, JNC Rule 7 provides:

   The commission should at all times take cognizance of the fact
   that the best qualified nominees may be those whom it would be
   most difficult to persuade to serve. Accordingly, the commission
   should not limit its consideration to persons who have been
   suggested by others or to persons who have indicated their
   willingness to serve. It shall be in order for the commission, if it
   sees fit to do so, to tender nomination to one (1) or more qualified
   persons, prior to, and subject to, the formal action by the
   commission in making nominations, in order to ascertain
   whether such a person will agree to serve if nominated. (49)

JNC Rule 8 governs publication of the names of the nominees for the vacancy and provides the commission may, "in its discretion, publicize some, all or none of the names of the possible nominees who have been suggested to it or whom it had under consideration." (50) The nominating commission is prohibited from describing possible nominees as "applicants" "or by any other term suggesting that they are seeking to be nominated." (51)

The nominating commission selects three nominees, (52) and the chairperson (the chief justice of the Wyoming Supreme Court or his or her designee) presents the list to the governor. (53) The list is provided to the governor with no ranking or order of preference among the three nominees. (54) The timeline for selection of a judge to fill a vacancy is quite short. The commission must submit its list to the governor within sixty days after the vacancy of a judicial office, or if the vacancy is foreseen, the commission may submit its list of nominations before the occurrence of the vacancy. (55) The governor must then make the appointment within thirty days from the date the list is submitted to him or her. (56) If the governor misses the deadline, the chief justice may make the appointment from the list. (57) Since the current system has been in place, the governor has never failed to make an appointment within the mandated time.

The appointment of a judge is not the end of the process, however. After serving for one year, a judge must be retained by a vote of the electorate at the next general election to remain in office for the remainder of his or her first term. (58) If the judge chooses to stand for retention at the end of his or her term, he or she must file a declaration of intent to stand for retention with the judicial nominating commission. (59) The retention election is nonpartisan and involves only the electorate served by the judge. (60) Thus, a supreme court justice must stand for retention by the entire state electorate, while district and circuit court judges answer only to the electorate of their respective districts or circuits. (61) A judge must be retained by the majority of those voting on …

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Publication information: Article title: Wyoming's Judicial Selection Process: Is It Getting the Job Done?. Contributors: Kite, Marilyn S. - Author. Journal title: Fordham Urban Law Journal. Volume: 34. Issue: 1 Publication date: January 2007. Page number: 203+. © 2009 Fordham Urban Law Journal. COPYRIGHT 2007 Gale Group.

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