When the Nebraska Legislature enacted the current statutes that regulate judicial nominating commissions, it was 100 percent certain that the statutes required commissions to select or reject candidates for judicial office through a public roll call vote. Last October, 100 percent of the Nebraska Supreme Court was certain that those same statutes permit, and indeed may require, judicial nominating commissions to conduct their voting in secret. This article explores this strange state of affairs. The article first analyzes Marks v. Judicial Nominating Commission, the case in which the supreme court decided that the voting of judicial nominating commissions could be conducted in secret. The analysis will demonstrate that the supreme court's result could not be reached by any fair-minded reading of the Nebraska statutes. In Marks, the supreme court decided to implement its own notion of how judicial nominating commissions should operate, even though the Legislature had clearly indicated that its opinion was different. The article will then discuss why the Marks case is important: why it is important to the process of nominating judges in this state and why it is important as an interpretation of Nebraska's public meetings law. Finally, the article discusses options for limiting the damage caused by the supreme court through the Marks decision.
Steven L. Willborn,
Off the Mark: The Nebraska Supreme Court and Judicial Nominating Commissions,
70 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol70/iss2/6