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A Sorry State of Disclosure

Most states are shielding critical information about their supreme court justices from the public, either by making disclosures hard to obtain or by requiring scant information to be disclosed

State supreme court justices have the power to impact federal elections, redistricting, immigration, reproductive rights, gun rights and more, and yet most states are suppressing information about their top judges — either by making it difficult to obtain financial disclosure reports or requiring little to no information to be disclosed — in a way that shields them from accountability, according to a new report released today by Fix the Court.

In short, 24 of the 48 states that require annual judicial disclosures don’t post their justices’ reports online, and 28 of 48 require less information to be disclosed than what the federal judiciary requires. (Idaho and Utah don’t require judicial disclosures.)

“Despite all we’ve learned in recent years about the might and impact of state supreme courts, not to mention major ethics scandals from West Virginia to Wisconsin to Texas, most states appear to be okay with keeping judicial disclosures hard to locate and short on detail,” FTC’s Gabe Roth said. “Yet if the public doesn’t know what type of gifts and free trips a justice has received during the year, or what investments they have, then we can’t be certain a justice is truly unbiased no matter what cases come before them. Our report shows the clear case for urgent reform.”

Obtaining the reports:
Fix the Court began requesting state chief justices’ 2022 financial disclosure reports, the most recent year available, in mid-December 2023, and by Feb. 8, 2024, had received reports from 48 of 50 states.

Twelve of the 48 require justices to file a second disclosure — generally ones that include extra-judicial compensation, gifts and reimbursements — so there are 60 reports in total. Of the 60, less than half are posted online; only 28 are. (Counted another way, 24 states post one or both of their reports online, and 24 states do not.)

To obtain the other 32 reports, you must either fill out an online form, which you sometimes have to print out and mail in with a check; call the state supreme court or state ethics commission to find the right person to send you the report; or email the supreme court clerk, assistant to the clerk, state courts administrator, supreme court’s community relations or public information officer or law library staff, the commission on judicial qualifications, state ethics commission director, executive director of the registry of election finance, secretary of state’s help desk, or state board of professional conduct. Or you have to show up in person, and the court might not let you leave with a copy of the disclosure.

Do not despair; FTC has listed all of these contacts and details in a public spreadsheet,

Grading the states:
As noted on the third tab of the spreadsheet, FTC first gave states points based on how long it took to obtain the reports: 10 points for disclosures being online, zero points for no disclosures and 0.5 to eight points based on how long it took to receive them.

FTC then gave states points for the content graded on a curve — the curve being the federal judiciary’s disclosures. States received one point each for eight categories of disclosure included in federal judicial reports: Positions; Non-Investment Income, Filer; Non-Investment Income, Spouse; Reimbursements; Gifts; Liabilities; Investments and Trusts; and Certification.

States were also award half-points for four bits of information that are not in the federal reports but FTC believes they should be: the value/amount of the gifts received; the value/amount of the reimbursements received; a separate section on a justice’s real estate holdings; and an affirmation that the justice has attended required ethics training during the year. That added up to 10 points.

The content points were doubled since we see content as being more critical than access, meaning 30 was the highest point total. We then broke the states into four groups: “passable” (>24 points), “average” (21-24 points), “poor” (17-20 points) and “failing” (<17 points).

Fourteen states were graded as “passable”: California (29 points), Arkansas (28), Arizona (27.5), Georgia (27), Hawaii (27), New Mexico (27), Wisconsin (27), Illinois (26), Washington (26), Virginia (25.5), Louisiana (25), Massachusetts (25), Rhode Island (25) and West Virginia (24.5).

Twelve states were graded as “average”: Colorado (24), Indiana (24), Maine (24), Ohio (24), North Carolina (23.5), Texas  (22.5), Kansas (22), Oregon (22), Alaska (21), Florida (21), New Hampshire (21) and Pennsylvania (21).

Nine states, plus the federal courts, were graded as “poor”: Delaware (20), federal courts (20), Wyoming (20), Maryland (19), Montana (19), Nebraska (19), Vermont (19), South Dakota (18), Nevada (18) and Tennessee (17.25).

Fifteen states were graded as “failing”: Missouri (16.5), Minnesota (16), Mississippi (16), New York (16), North Dakota (16), Oklahoma  (16), Connecticut (15), Kentucky (14.5), South Carolina (14), Alabama (14), Iowa (13), Michigan (13), New Jersey (12), Idaho (0) and Utah (0).

The key takeaways from the report, for states:
1. Too many states are not posting their justices’ disclosure reports online, and that needs to be fixed, either by the legislature, the judiciary or some combination thereof. It’s 2024, and there’s no valid excuse.
2. There should be one financial disclosure max for each state judge or justice. In other words, consolidate.
3. The frequency with which state court staff had no idea what we were talking about when we asked for a disclosure or a gift report was astounding and needs to be rectified.

The key takeaways from the report, for the federal judiciary:
1. There should be a separate section in the federal judiciary’s reports for real estate.
2. The federal judiciary should require ethics training, and there should be a separate section in the federal judiciary’s reports where judges and justices can affirm they’ve attended the training (and the 49 states that don’t have an ethics training affirmation section in their disclosures should add one).
3. Like a third of the states do, the feds should require their justices to list the exact amount of reimbursement they’ve received for transportation, lodging and meals.

The report concludes with details about how difficult each state’s disclosure(s) were to obtain and one or two interesting facts about the content of the reports, from Alabama’s justices filing a second disclosure that are sealed and unavailable to the unique “NO CHANGE” check box in Colorado to the astronomical threshold for listing investments in Oklahoma ($50,000 in profit vs. $1,000 or $5,000 in value in most states).

Among the facts we found most interesting: in Texas, the chief justice is married to a federal judge, so Chief Justice Nathan Hecht’s report and Judge Priscilla Richman’s report are worthy of comparison given the variation in Texas’ vs. the feds’ disclosures. (To be fair, the two married in 2022 and Hecht retires later this year, so it’ll be a short-lived comparison.)

Where we go from here:
FTC’s report was inspired by and mirrors in many ways an investigation conducted by the Center for Public Integrity a decade ago. That outlet spent nine months in 2013 not only obtaining the disclosures from every state supreme court justice in the country and grading them on a rigorous 100-point scale; it also uncovered several conflicts of interest, where justices sat on cases despite having a financial stake or personal tie to a party. (One positive note: CPI’s report stated only 12 states had online disclosures; now we’re up to 24.)

FTC, on the other hand, only obtained chief justices’ disclosures and did not seek to uncover conflicts, though both are worth repeating in the future.

(Of note, 32 of 45 states were using the same disclosure forms in 2022, the year FTC asked for, as they used in 2012, the year CPI asked for. So just like in 2012, Kentucky justices still did not have to report spousal income in 2022, Michigan justices still did not have to report their debts, and Mississippi justices still did not have to report their gifts.)

In addition, FTC has not yet reached out to state legislators or state court administrators seeking new laws or regulations to require online posting of disclosures, combining the primary and second reports where applicable or expanding the required amount of information justices disclose each year.

Fix the Court — and, as Mike Lissner will say on the press call announcing the report at 12:30 p.m ET today, Free Law Project —  would be happy to join with local nonprofits or journalists in any of the 50 states to embark on that work.

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