Proof of Service; Motion for Leave to File Brief and Amicus Brief of the American Judicature Society

    + Meyer 
Hendricks 
Victor 

Osborn & 
Maledon 

Attorneys at Law 

  

‘The Phoenix Plaza 
2929 N. Central Ave. 

P.O. Box 33449 

Phoenix, Arizona 

85067-3449 

Telephone 
602-640-9000 

Facsimile 

602-640-9050 

2 

3 

4 

    
  

No. 90-813 and No. 90-974 

IN THE 

SUPREME COURT of the UNITED STATES 

OCTOBER TERM, 1990 

  

et al. 
Petitioners, 

HOUSTON LAWYERS' ASSN., 

Ve 

ATTORNEY GENERAL OF TEXAS, et al. 
: Respondents. 

  

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, et al. 

Petitioners, 

Ve 

ATTORNEY GENERAL OF TEXAS, et al. 
Respondents. 

  

PROOF OF SERVICE 

  

I, Lynda L. Smock, of lawful age, being duly sworn, upon 

my oath state that I did, on the 4th day of March, 1991, place 

in the United States Post Office in Phoenix, Arizona sixteen 

packages containing three printed copies of the Brief Amicus 

Curiae in the above-listed cases, that the proper first class 

postage was affixed to said envelopes and that they were 

plainly addressed to the individuals shown on the following 

attached listing. All parties required to be served have been    



  

  
  

  

  

+ Meyer  ) & 
Hendricks 
Victor 

+ Osborn & served. I declare under penalty of perjury that the foregoing 
- Maledon 

AwomeysatLaw 2 || 1S true and correct. 

3 Fpnola == Sm 
Lypda L. Smock, Affiant 

The Phoenix Plaza 4 
2929 N. Central Ave. 
P.O. Box 33449 5 
Phoenix, Arizona 2 

85067-3449 Subscribed and sworn to before me this 4th day of March, 

5 1991. I am duly authorized under the laws of the State of 

Telephone 7 
602-640-9000 Arizona to administer ps 

Facsimile 8 Lh ini) 
602-640-9050 [1a | | ste A). 

9 Patricia D. Palmer, Notary Public. 

0 || To be filea for: Reg : Sitiea 9. pond 

1 EDWIN F. HENDRICKS* 
DAVID G. CAMPBELL 

12 G. MURRAY SNOW 

Meyer, Hendricks, Victor 
3 Osborn & Maledon, P.A. 

2929 North Central, Suite 2100 
14 Phoenix, Arizona 85012-2798 

602/640-9000 

15 *Counsel of Record for 
16 the Amicus Curiae 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

2        



No. 90-813 and No. 90-974 
  

  

IN THE 

Supreme Court of the Enited States 

OcTtoBER TERM, 1990 

HousToN LAWYERS’ ASSN., et al. 

Petitioners, 

. 
ATTORNEY GENERAL OF TEXAS, et al. 

Respondents. 
  

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, et al. 

Petitioners, 

. 
ATTORNEY GENERAL OF TEXAS, et al. 

Respondents. 
  

On writ of certiorari to the United States Court of 
Appeals for the Fifth Circuit 

  

  

MOTION FOR LEAVE TO FILE BRIEF AND 
BRIEF OF THE AMERICAN JUDICATURE 

SOCIETY AS AMICUS CURIAE IN 
SUPPORT OF NEITHER PARTY 
  

  

EpwiN F. HENDRICKS™ 

DaviD G. CAMPBELL 

G. MURRAY SNOW 

Meyer, Hendricks, Victor 
Osborn & Maledon, P.A. 

2929 North Central 

Suite 2100 

Phoenix, Arizona 85012 

602/640-9000 

*Counsel of Record for the 

Amicus Curiae 

  

   





  
  

No. 90-813 and No. 90-974 

  
  

IN THE 

Supreme Court of the United States 

OcToBER TERM, 1990 

HousTtoN LAWYERS’ ASSN., et al. 
Petitioners, 

U. 

ATTORNEY GENERAL OF TEXAS, et al. 
Respondents. 

  

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, et al. 
Petitioners, 

U. 

ATTORNEY GENERAL OF TEXAS, et al. 

Respondents. 
  

On writ of certiorari to the United States 

Court of Appeals for the Fifth Circuit 
  
  

MOTION FOR LEAVE TO FILE BRIEF OF THE 

AMERICAN JUDICATURE SOCIETY AS AMICUS 

CURIAE IN SUPPORT OF NEITHER PARTY 
  

  

The American Judicature Society was founded in 

1913 by Roscoe Pound, John H. Wigmore, and others ded- 

icated to improving the administration of justice throughout 

the United States. Among its goals, the Society seeks to 
improve the quality and diversity of state-court judges by 

promoting merit selection as the method for choosing such 
judges. The Society has a national membership.  



  

11 

It seeks leave to file an amicus brief in this case to 

call to the Court’s attention important facts about merit 

selection which has been adopted in whole or in part by a 

majority of states as the method for selecting highly qual- 
ified candidates to fill judicial offices. 

The Society has undertaken a good faith effort to 
obtain the consent of all parties necessary to file this brief 
without motion. Although all parties have orally consented 
to the filing of this brief, the Society had not received all 

such consents in writing prior to the printing of the brief. 

Should the Society receive such written consents prior to 

filing, it will file the consents with the clerk’s office. The 
Society has not yet received the written consents of The 

League of Latin American Citizens, Jesse Oliver, and the 

Attorney General of Texas. 

Respectfully submitted, 

EDWIN F. HENDRICKS* 

DAVID G. CAMPBELL 

G. MURRAY SNOW 

Meyer, Hendricks, Victor 

Osborn & Maledon, P.A. 

2929 North Central 

Suite 2100 

Phoenix, Arizona 85012 

602/640-9000 

*Counsel of Record for 

the Amicus Curiae 

March 4, 1991 

   



111 

TABLE OF CONTENTS 

Page 

PABLEOCP AUTHORITIES, .................:. iv 

INTEREST OF THE AMICUS CURIAE. ......... 1 

SUMMARY OF ARGUMENT... =... oh. 2. 2 

ARGUMENT... isi res 3 

A. MERIT SELECTION IS A SUPERIOR 
METHOD FOR SELECTING STATE 
JUDGES. |. ivan. SO Zin crs 3 

B. SECTION TWO OF THE VOTING 
RIGHTS ACT DOES NOT APPLY TO 
MERIT SEI.ECTION. ... i065. 0.0 nan. 5 

C. THE VOTING RIGHTS ACT SHOULD 
NOT BE APPLIED TO RETENTION 
ELECTIONS. ...... ... i500 00 90 

CONCLUSION. to chia osbod ails aeisidie a 0insls sens 8 

 



  

1v 

TABLE OF AUTHORITIES 

CASES Page 

Irby v. Virginia State Board of Elections, 889 
F.2d 1352, 1357-58 (4th Cir. 1989), cert. de- 
ried, 110 S.Ct. 2589 (1090) 1... cio dv nis: bis 7 

Irby v. Fitz-Hugh, 693 F.Supp. 424, 435 (E.D.Va. 
LIL lL I Ri a Th eu a 7 

Searcy v. Williams, 656 F.2d 1003, 1010 (5th Cir. 
Unit B 1981), aff'd mem. sub nom., Hightower 
Uv. Searcy, 44511.8.984 (1982)... co viovai Jui q 

Williams v. State Bd. of Elections, 696 F.Supp. 
1563 (ND 1088). 5 iis iii Ln. dil; 6,7 

STATUTES AND RULES 

The Voting Rights Act of 1965 § 2, 42 U.S.C. § 
1973 (1088) 4, 2s. aa passim 

OTHER AUTHORITIES 

American Judicature Society, Black Justices 
Currently Serving on State Courts of Last Re- 
sort: Methods of Initial Selection (September 
1990)... ae ive ra es 4 

American Judicature Society, Judicial Selection 
Update: How Commissioners Rate Their Own 
Judicial Selection Plans (1879). ......... .. ... 4 

American Judicature Society, Model Judicial Se- 
lection Provisions (1985)... . in ovina inns. 3 

American Judicature Society, Women Justices 
Currently Serving on State Courts of Last Re- 
sort: Methods of Initial Selection 
Sept. 1990)... ......... ies ivan 5 

Fund for Modern Courts, Inc., Success of Women 
and Minorities in Achieving Judicial Office: 
The Selection Process 69 (Dee. 19585) ......... 4.5 

Overton, Trial Judges and Political Elections: A 
Time for Re-examination, 2 U. Fla. J. of L. & 
Pub. Pol'y. 9, 20 (1933-88). ................. 5 

   



No. 90-813 and No. 90-974 

  
  

IN THE 

Supreme Court of the United States 

OcTtoBER TERM, 1990 

HousToN LAWYERS’ ASSN., et al. 
Petitioners, 

Us 

ATTORNEY GENERAL OF TEXAS, et al. 

Respondents. 
  

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, et al. 

Petitioners, 

U. 

ATTORNEY GENERAL OF TEXAS, et al. 

Respondents. 
  

On writ of certiorari to the United States 

Court of Appeals for the Fifth Circuit 
  
  

BRIEF OF THE AMERICAN JUDICATURE SOCIETY 

AS AMICUS CURIAE IN SUPPORT OF 

NEITHER PARTY 
  
  

INTEREST OF AMICUS CURIAE 

The American Judicature Society was founded in 
1913 by Roscoe Pound, John H. Wigmore, and others ded- 
icated to improving the administration of justice throughout 
the United States. Among its goals, the Society seeks to 
improve the quality and diversity of state-court judges by  



  

2 

promoting merit selection as the method for choosing such 

judges. 

The cases before the Court do not concern application 
of the Voting Rights Act to the merit-based selection of 
judges, and the Society takes no position on the application 
of the Act to the selection of judges through at-large, com- 

petitive elections. But because the Court’s decision might 
be used to question the validity of merit selection systems 
now being used in a majority of the states, the Society files 
this amicus brief to inform the Court of the operation and 

spread of merit selection systems and to explain why the 

Court should not decide the present controversy in a manner 
that implicates judicial choice by merit selection. 

SUMMARY OF ARGUMENT 

Merit selection provides a superior method for se- 
lecting state judges. Merit selection systems require state 

executives to appoint judges from a short list of only the 
most highly qualified candidates nominated by non-parti- 

san commissions. This procedure increases the quality of 

state court judges, makes them less susceptible to political 

influences, results in greater representation of minorities 
and women on state court benches, and enhances the le- 

gitimacy of the courts in the eyes of the public. The benefits 

of merit selection have led thirty-three states to adopt some 

form of merit selection in the last fifty years. 

The Voting Rights Acts does not apply to merit se- 

lection procedures because such procedures are not elective. 
A system under which the state executive makes judicial 
appointments from a pool of qualified candidates, as to 
which citizens have no elective voice, simply does not result 

in voters of one class receiving “less opportunity than other 
members of the electorate ... to elect representatives of 

their choice.” 42 U.S.C. § 1973 (1988). And, although many 

merit selection systems grant the public a form of popular 

   



3 

veto over judges through periodic retention elections, nei- 

ther do such elections result in the election of public rep- 
resentatives within the meaning of the Act because Judges 
removed through retention elections are replaced by exec- 
utive appointment, not by popular election. Therefore, in 

deciding the cases before it, the Court should do nothing to 
suggest that the Voting Rights Act applies to merit selection 

of judges by the states. 

ARGUMENT 

A. Merit Selection Is A Superior Method For 

Selecting State Judges. 

Albert Kales, the Society's first director of research, 
formulated the original merit selection proposal in 1914. 

For the next several years the Society refined and expanded 

the proposal and it was subsequently endorsed by The 

American Bar Association in 1937. In 1940, Missouri be- 

came the first state to adopt merit selection. Under its most 

traditional form, merit selection calls upon a non-partisan 

nominating commission to select qualified candidates for a 

judicial opening. The state executive is required to fill the 
judicial vacancy from among the limited group of candidates 
nominated by the commission. Under most merit plans, 
when the judicial term of office expires and at regular in- 
tervals thereafter, the judge is subject to a retention election 

at which he or she runs unopposed on the basis of his or 

her judicial record. If the judge is not retained by the public, 

the vacant seat is filled by appointment through the same 
merit selection process. American Judicature Society, Model 

Judicial Selection Provisions (1985). This approach to ju- 

dicial selection preserves the appointment prerogative of 
the executive and the safeguards of public approval, while 

ensuring that persons appointed are well qualified for the 
bench. 

Merit selection provides many benefits, the foremost 
being an enhanced quality of state judges. Non-partisan 

commissions which nominate judicial candidates under  



  

4 

merit selection systems are charged with seeking out the 

best judicial talent available. State executives must make 

their appointments from candidates so identified. This pro- 

cess, while not eliminating political considerations entirely, 

places greater emphasis on judicial qualifications than an 

unfettered political appointment system or a general com- 
petitive election. A 1979 poll of jurisdictions with merit 
selection revealed, almost without exception, that judicial 

quality had improved. American Judicature Society, Judi- 

cial Selection Update: How Commissioners Rate Their Own 
Judicial Selection Plans (1979). 

Merit selection also makes the judiciary more inde- 
pendent from political influences and public pressure. 

Judges chosen through merit selection need not initially 
engage in the overtly political activities of judges selected 

through public elections, such as campaigning for office, 

aligning themselves with particular political parties, and 
soliciting campaign funds. And, because judges appointed 
through merit selection generally have a greater assurance 

of extended tenure, political factors and public opinion play 

less of a role in their decisions. 

Merit selection systems also provide more frequent 

judicial opportunities to minorities and women. Studies re- 
cently completed by the Society show that of the 20 black 
jurists currently serving on state courts of last resort, 10 

were chosen through merit selection, 7 through pure ap- 
pointment by the executive, 2 through legislative appoint- 

ment, and 1 through popular election. American Judicature 
Society, Black Justices Currently Serving On State Courts 

of Last Resort: Methods of Initial Selection (September 

1990). See also, Fund for Modern Courts, Inc., Success of 

Women and Minorities in Achieving Judicial Office: The 
Selection Process 69 (Dec. 1985) (“merit selection produced 

the highest percentage of women and minorities to reach 
the bench of the six methods studied.”). In Florida, where 

appellate judges are chosen by merit selection and trial 

judges are elected, “nineteen out of twenty-three black 

judges . .. came to the bench through the merit selection 

   



5 

process.” Overton, Trial Judges and Political Elections: A 

Time For Re-examination, 2 U. Fla. J. of L. & Pub. Poly. 

9, 20 (1988-89). 

Similarly, of the 35 women currently serving on state 
courts of last resort, 17 achieved the bench by merit selec- 

tion, 10 by executive appointment, 4 by legislative appoint- 

ment, and 4 by public election. American Judicature Soci- 

ety, Women Justices Currently Serving on State Courts of 

Last Resort: Methods of Initial Selection (Sept. 1990); Fund 
for Modern Courts, Inc., supra. In Florida, 41 of 71 women 

judges came to the bench through merit selection appoint- 

ment. Overton, supra, at 20. 

The benefits of merit selection are evidenced by the 
number of states that have adopted such a system in the 
last half-century. Missouri began the shift when it estab- 
lished a merit selection system in 1940. Since then, thirty- 

three states and the District of Columbia have adopted a 

form of judicial merit selection to choose some or all of their 
judges.! Indeed, with only one exception, every state which 

has changed its judicial selection system in the last forty- 
one years has changed to merit selection.? 

B. Section Two Of The Voting Rights Act Does 
Not Apply To Merit Selection. 

The gravamen of a claim under the Voting Rights 
Act is that members of a protected class have “less oppor- 

tunity than other members of the electorate to participate 

  

1 The states include Alabama, Alaska, Arizona, Colorado, Con- 

necticut, Delaware, Florida, Georgia, Hawaii, Idaho, Indiana, Iowa, Kan- 
sas, Kentucky, Maryland, Massachusetts, Minnesota, Mississippi, Mis- 

souri, Montana, Nebraska, Nevada, New Mexico, New York, North 

Dakota, Oklahoma, Pennsylvania, South Dakota, Tennessee, Utah, Ver- 

mont, Wisconsin, and Wyoming. 

2 The lone exception is Georgia, which switched from partisan to 
non-partisan elections in 1983.  



  

6 

in the political process and fo elect representatives of their 
choice.” The Voting Rights Act of 1965 § 2, 42 U.S.C. § 1973 
(1988) (emphasis added). While the Court may determine 

in these cases that the Voting Rights Act applies to con- 

tested, at-large judicial elections, the Act cannot apply to 

the merit selection of judges. Merit selection systems grant 

the electorate no direct voice in filling judicial vacancies. 
Rather, judges are appointed by the executive branch from 

a pool of candidates nominated by a non-partisan commis- 

sion. No voter in a protected class has less say about the 

choice of a judge than other voters. Thus, the Voting Rights 
Act, by its very terms, has no application to merit-based 
judicial appointments. 

Lower federal courts have so held. In Williams v. 

State Bd. of Elections, 696 F. Supp. 1563 (N.D. Ill. 1988), 
Illinois voters challenged state methods for selecting judges 

under section two of the Act. The court found that the com- 

plaint stated a claim as to judges who were selected through 
public elections, but dismissed the claim as to judges who 
were appointed. The court recognized the fundamental dis- 
tinction under the Act between systems that fill vacancies 

through public elections and those that fill vacancies 

through appointment: 

By its very terms, the Act extends only to 

mechanisms involved in the election of represen- 
tatives. However, the people of Cook County do 
not elect the Associate Circuit Court judges; they 

are appointed by the regular Circuit Court judges. 
Because Associate Circuit Court judges are not 

elected representatives of the people within the 

plain meaning of the Act, we hold that the plain- 

tiffs cannot challenge the appointment of Associ- 
ate Circuit Court judges. Though the plaintiffs 
contend that full relief requires reappointment of 

all Associate Circuit Court judges by properly 

elected Circuit Court judges, we cannot extend 
coverage of the Voting Rights Act beyond its 

   



7 

terms. The Voting Rights Act covers elected offi- 
cials only. Associate judges are appointed officials. 

Williams, 696 F. Supp. at 1568-69; see also Irby v. Virginia 
State Board of Elections, 889 F.2d 1352, 1357-58 (4th Cir. 
1989), cert. denied, 110 S.Ct. 2589 (1990) (considerable 

doubt as to whether section 2 applies to appointive offices); 
Searcy v. Williams, 656 F.2d 1003, 1010 (5th Cir. Unit B 

1981), aff'd mem. sub nom. Hightower v. Searcy, 455 U.S. 
984 (1982) (appointive system for school board did not im- 

plicate Voting Rights Act); Irby v. Fitz-Hugh, 693 F. Supp. 

424, 435 (E.D.Va. 1988) (same). The Society believes that 

the Act was applied correctly in Williams, and requests that 

this Court say nothing in its disposition of the cases at bar 

to suggest that the Act applies to appointive systems such 

as merit selection. 

C. The Voting Right Act Should Not Be Applied 
To Retention Elections. 

Merit selection is an appointive process, but many 

merit selection systems provide the public with a voice in 

retaining judges through popular vote. Retention elections 
function as a kind of popular veto, allowing the public to 
dismiss a judge who has already been appointed but pro- 
viding voters with no right to select judges of their choice. 
Judges dismissed through retention elections are replaced 
by judges appointed by the executive through the merit- 
based selection process, with the voters having no voice in 
the candidates nominated or selected. Thus, retention elec- 

tions do not deny protected classes the right “to elect rep- 

resentatives of their choice” within the terms of the Voting 

Rights Act, 42 U.S.C. § 1973 (1988). Because the retention 

aspect of merit selection systems is not before the Court in 

the present cases, the Society requests that the Court say 
nothing in its disposition of these cases which would suggest 
that retention elections are subject to the provisions of the 
Voting Rights Act.  



    
8 

CONCLUSION 

For the above reasons, the American Judicature So- 

ciety respectfully requests the Court not to implicate judi- 

cial choice by merit selection in its disposition of these cases. 

Respectfully submitted, 

EDWIN F. HENDRICKS* 

DAVID G. CAMPBELL 

G. MURRAY SNOW 

Meyer, Hendricks, Victor 

Osborn & Maledon, P.A. 

2929 North Central 

Suite 2100 

Phoenix, Arizona 85012 

602/640-9000 

*Counsel of Record for 

the Amicus Curiae 

March 4, 1991