judgesonmerit.org

A recent blog compared NFL referees with courtroom judges.  Both sides want the decider to be impartial and skilled.  However, when judges are required to actively fundraise in order to successfully campaign for a

seat on the bench and special interest groups, lawyers and litigants who may later appear before the judge donate large sums of money,

how impartial are the judges?

This problem has ballooned within the last decade.  In 1990, state Supreme Court candidates raised approximately $3 million.  However, by 2000, some high court candidates raised more than $45 million.  Further, some of these contributors are corporate special interests, expecting some sort of benefit for their contribution. A Center for American Progress study reported, “In courtrooms across the country, big corporations and other special interests are tilting the playing field in their favor.”

Although judges are supposed to be impartial, there are political movements across the country to oust judges that decide against political partisans.   For example, a Pennsylvania Tea Party faction set out to defeat a few state Supreme Court justices who refused to uphold to voter ID law.  In Iowa, one party, Iowans for Freedom is leading the call to remove Judge David Wiggins.  He was involved in a unanimous ruling legalizing same-sex marriage.  An opposing party, Justice Not Politics has emerged to protect the court system, merit selection and retention.  They explain, “If politics and campaign money are allowed into the courts, justice will be for sale.”

A recent editorial in the Daily Journal (Tupelo) explains that an independent judiciary should not have to campaign for contributions.  Although the candidates for the Mississippi State Court election are all “honorable members of the

legal profession,” the fact that they have to raise money for their

campaign is unsettling.  The amount of money that candidates raise is substantial; one candidate in the Central District has raised $375,000.  His opponent has raised $290,000.

Some of this money comes from friends and colleagues expecting nothing more than an impartial judge; however, interest groups also contribute to judicial election campaigns.   The problem with these contributions is that judges are supposed to be impartial, judging by the law, not by whether a specific interest group will donate to their campaign next time.  Also, “[n]o interest group contributes to any candidate without some expectation that the candidate will represent its interests.”

Although upstanding judges will not decide cases based on interest group contributions, why have a system where interest groups might have a say? Even the appearance of special interest groups contributing to judicial elections should be avoided because it causes a lack of public confidence.

Under a merit selection system judges are not forced to campaign.  Further, judges would not be pressured by special interest groups who contribute to campaigns with hopes of the law being decided in their favor.  An impartial judge should be selected on merit, not on how much money one can raise.

A San Antonio Express-News article explains just how frequently lawyers contribute to judicial election campaigns.  Picture this: a group of probate attorneys gathering together in order to discuss the re-election of a probate judge while drinking scotch and beer.  The probate judge, Tom Rickhoff, stops by with a list of attorneys who could potentially contribute money to his re-election campaign.

Attorney Mark Stanton Smith was present at the re-election meeting, which led his opposing counsel in a guardianship case to request the recusal of Judge Rickhoff. Judge Rickhoff refused to recuse himself, leading to an appeal decided by Judge Peeples.

Smith explained that he and Judge Rickhoff were not close friends, but conceded that he had contributed money to Rickhoff’s re-election. “‘It’s a typical thing that I do to the judges that are in the courts.’” Smith admitted there had been similar meetings in 2010 and in 2006.  “The attorneys had agreed to call about 20 people each and solicit cash for the judge’s re-election.”

Judge David Peeples ruled that this was not unusual enough to require Judge Rickhoff to recuse.  However, he also noted the broader issue at stake. “‘If you are correct,’ Judge Peeples said, ‘potentially, wouldn’t (this affect) every judge in cases involving lawyers that help them significantly in their campaigns, more than just contributing money, contributing a big sum of money, work for them, send out letters, work the poll for a morning on election day, put out the yard signs, all these judges that got some of these lawyers in their court?’”

The column’s author, Brian Chasnoff, explained that this was not a denial of such contribution activity, rather it was an acknowledgement of the rampant contributions from attorneys to judges’ election campaigns. “It’s also another reason that Texas needs to find a new way to pick judges.”

A Lancaster Online editorial predicts that the new proposal for Merit Selection of statewide appellate court judges in Pennsylvania may see some political success this time around. “Many people are growing ever more concerned about the increasingly expensive and partisan elections. Also, the Luzerne County ‘kids for cash’ scandal cast a long shadow over the Pennsylvania judiciary.” The article cites the 2010 Public Opinion Strategies poll that found that 75% of people feared that campaign contributions might influence judicial decisions and 93% wanted the opportunity to vote on whether we change our system for selecting appellate judges in Pennsylvania.

As the author states, the proposal repeats what many fair courts proponents have been saying for years. And as State Representative Bryan Cutler (R-Lancaster), the bill’s primary sponsor, said, “Merit selection has a strong history in our nation and works well in many other jurisdictions. It produces exceptionally qualified candidates who represent the diverse nature of our society.”

The editorial speaks out for a better selection of statewide judges. “[F]ew can argue that voters cast an informed vote when it comes to selecting appellate court judges. This is due, in large part, because candidates are limited by judicial ethics in what they can say during political campaigns. This often reduces the campaigns to generalities, niceties and sound bites.”

We agree that the public deserves better and hope the public will have an opportunity to vote on the best way to choose qualified, fair, and impartial members of the judiciary.

Indiana’s IndyChannel.com reports that a judicial campaign fundraising flier appears to equate financial donations with favorable rulings. The flier advertises an event to support the re-election of Marion Superior Court Judge Becky Pierson-Treacy. Among the “suggested contributions,” are “$150 ‘Sustained’”; “250 ‘Affirmed’”; “500 ‘So Ordered’”; and “$1,000 ‘Favorable Ruling’”.

According to former Judge Gary Miller and others, the flier gives the impression that justice is for sale. As Miller states, such a flier, even if it were a joke, is not appropriate for a judicial campaign. A spokeswoman for the Indiana Supreme Court agrees; “We require our judges to act in a manner that promotes confidence in the judicial branch. They must always act with fairness and impartiality. Even the appearance of impropriety, or the appearance that something is unfair, is against the judicial canons.’” Indiana has reason to be upset by this flier, particularly when the public may have already suspected a connection between campaign fundraising and judicial rulings. The advertised fundraiser has since been canceled.

In a recent Montgomery Advertiser editorial, Retired U.S. Magistrate Judge Vanzetta Penn McPherson advocates a transition from judicial elections to Merit Selection of judges. Her critique of judicial elections follows the resignation of Alabama Chief Justice Sue Bell Cobb. McPherson seconds Cobb’s concern that partisan elections of judges “perpetuate the public perception that judges are selected more on campaign contributions than on ability.”

McPherson distinguishes the role of judges from governors and legislators. “The executive and legislative branches are deliberately partisan, and service in those branches is infused with political ideology.” In direct contrast, judges should rule objectively, without concern for party politics or personal ideologies, says McPherson. “It is beyond ironic that public servants summoned to administer justice blindly are expected to see clearly the differences between rich and poor, liberal and conservative, Christian and non-Christian, donkey and elephant.”

McPherson faults judicial elections beyond the involvement of money and politics. Rather, she identifies the crux of the problem to be the lack of emphasis on judicial qualifications. McPherson describes the intellectual challenges of serving on the bench and the need for judges with significant experience, strong academic achievement, effective management skills, and reasonable temperance. According to McPherson, Alabama’s codified qualifications fail to measure up. And before 2009, she says judicial campaigns were “more likely to highlight a candidate’s religious faith, church attendance and political ideology than the candidate’s abilities to fulfill the weighty tasks of analyzing legal issues and resolving disputes under the law.”

McPherson believes Merit Selection is “in the public’s best interest,” because it prioritizes a judge’s qualifications and temperament. We support her fight to change Alabama’s system of judicial selection and urge Pennsylvania to heed her call.

Saturday’s edition of the Birmingham News featured an editorial urging Alabama to enforce its sixteen-year-old law regulating judicial campaign contributions. The law requires that judges recuse themselves from cases in which a party or their lawyer donated $2000 or more to the judge’s campaign ($4000 for appellate judges). However, the law has not been enforced due to a standoff between the Alabama Supreme Court and the state Attorney General’s office: the Supreme Court refuses to write the rule required for the law to take effect, saying that the law requires preclearance from the U.S. Justice Department (due to Section V of the Voting Rights Act). However, the Attorney General has refused to seek pre-clearance, demanding that the judges author the rule.

A three judge-panel in D.C. recently refused to hear a challenge to the law, writing that the law had not harmed the plaintiff in any way. The judges wrote that the law was not likely to be enforced in the near future and that “until one of these two Alabama political institutions changes its policy, it is at the least a game of political chicken, with both players staring (or perhaps winking) at each other.” During the past decade, Alabama has had the most expensive judicial elections in the country, and the law would minimize the effect of campaign cash on the courts. Given the influence of campaign contributions on the Alabama judiciary, the editorial suggested that the state either enforce the law, or move to merit selection for statewide judgeships.

Enforcement of the law would indeed be a welcome step in the right direction and would hopefully curb the costs of Alabama’s judicial elections. However, it may not be a cure-all: the law does not require recusal for third-party spending. As we have seen recently in Wisconsin, even where direct contributions are limited, independent expenditures may still drive up the cost of judicial elections, enabling mud-slinging on both sides. Merit selection has been implimented successfully in several of Alabama’s counties and state-wide merit selection is a solution that Alabama should explore.

Gavel Grab features a review of an article written by Professor Keith Swisher of the Phoenix School of Law. Swisher’s piece, published in the Georgetown Journal of Legal Ethics, looks at the ethical implication of the widespread practice of lawyers contributing to judicial campaigns.

Swisher concludes that campaign contributions do affect case outcomes, citing a 2009 study by Professor Joanna Shepherd that used a model comparing retiring and nonretiring judges to show that campaign contributions did indeed affect judge’s votes. He also cites a 2007 study by Margaret Williams and Corey Ditslear that shows a substantial minority of judges on the Wisconsin Supreme Court appeared to change their voting in exchange for campaign contributions. Finally, he cites a study by Chris W. Bonneau (a staunch supporter of judicial elections) & Damon Cann, which found a “quid pro quo” relationship between contributions and how judges voted in Michigan and Texas.

Given this, Professor Swisher argues that campaign contributions to judges disturb the administration of justice and widen the “wealth rift” between wealthy and poor litigants. He also argues that, under several ethical models, it is immoral for lawyers to contribute to judges. However, he also notes that due to an attorney’s obligation to their client, it may be immoral for an attorney not to donate to campaigns.

Swisher advocates limits on attorney contributions to judges, the use of Caperton-style recusal motions to disqualify judges, research into the opposition’s campaign contributions, disclosure by lawyers of their contributions to presiding judges and even withdrawal in certain cases. Professor Swisher’s article underlines the problems with judicial elections, and highlights the need to work for change.

This week, Alabama State Supreme Court Chief Justice Sue Bell announced her resignation effective August 1st, 2011. In her statement, she cited the failure of AL courts to modify their judicial selection system as one of her reasons for leaving. “Alabama appellate court justices should be selected either on merit, and retained or rejected by a vote of all the people, or at least cam­paign without the added po­litical emphasis of party la­bels,” declared Cobb. According to former president of the Alabama State Bar Association, J. Mark White, “She tried every way possible, along with the bar, to get a more civilized and economical way to select our judges.”

The numbers representing campaign costs in Alabama’s partisan elections are astounding. A study conducted by Justice at Stake revealed that AL Supreme Court candidates raised over $40.9 million in the past decade. According to a Thomson Reuters News & Insight article, “Cobb herself received $2.62 million in contributions during the 2006 Alabama Supreme Court election, a multi-candidate election that was the costliest state judicial race ever, with candidates raising a total of $13.5 million, according to Follow the Money.” In her resignation, Cobb explained that this method of judicial selection “perpetuate[s] the perception that judges are selected more on campaign contributions than on ability.”

Calls for judicial selection reform can be heard throughout the country. New York recently changed their recusal standards in an effort to restore public confidence in judicial impartiality. An impassioned editorial beseeches Alabama to do the same: “If anything, Alabamians should question judges’ impartiality even more than people do in other states, and the numbers from national polls already are high. In a Harris Poll last June, 71 percent of those surveyed nationally believe campaign contributions to judges have some or a great deal of influence on their decisions.”

The Justice at Stake survey lists Pennsylvania second after Alabama in campaign contributions, receiving around $21 million. However, recusal rules alone will not solve the problem. PMC agrees with Chief Justice Cobb that judges should not be obligated to raise millions of dollars to earn a seat on the bench and worries about qualified candidates who may be dissuaded by the need to raise enormous amounts of money. Cobb explained, “Another statewide race at this point in time would require me to raise millions of dollars while constantly endeavoring to appear and remain impartial and would require me to sacrifice precious time which I could be spending with my family.”

The report indicates that campaign contributions for the 2008, 2009, and 2010 Louisiana Courts of Appeal elections came primarily from lawyers, law firms, lobbyists and candidates themselves. These sources combined supplied sixty-three percent, sixty-eight percent, and fifty-six percent of all funds in 2008, 2009, and 2010 respectively. Similarly, in contested races, candidates received sixty-one percent of funding from these same top donors. For self-funded candidates, spending over the three years added up to almost $1.4 million. Meanwhile, lawyers and law firms donated $1.5 million to campaigns across the board.

These top two funding sources are of particular importance to PMC. First, when candidates are expected to contribute significantly to their own campaigns, those with less money but potentially better qualifications are prevented from entering the race. As a result, the public unknowingly loses the opportunity to have a fairer and more qualified judiciary. Second, when law firms and lawyers donate nearly forty-five percent, $1.1 million, to candidates running for an open seat, elected judges risk pressure from donors regarding decisions and, even if they resist that pressure, public skepticism of impartiality, if not outright distrust. Raising money for campaigns is a problem in all states that elect judges. By taking money out of the equation, Merit Selection increases public faith in the judiciary and gives qualified candidates, who could not otherwise afford to, a better opportunity to reach the bench.