Jul 15 2011

New article looks at the ethical implications of lawyers’ donations to judges campaigns

Published by under Merit Selection

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.

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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.


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Jan 29 2010

The Time is Now

PMC Deputy Director Shira Goodman attended this week’s Georgetown Law-Aspen Institute conference focused on selecting judges in the wake of the Caperton and Citizens United decisions. Goodman reports that there were two clear messages: First, judicial elections are about to become even more expensive, partisan and divisive. The second and more optimistic message is that now is the time for judicial selection reform.

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Justice O’Connor said the recent Supreme Court decisions should serve as a warning for states that elect judges and urged them to consider changing to Merit Selection. She explained that the Caperton decision demonstrated how contributions and campaign spending can poison the judicial system. In her view, Citizens United signaled that the problem of campaign spending in judicial elections could quickly be getting even worse.

This comes as no surprise, as we have long been concerned about the growing problem of mixing money with choosing judges. We hope that Justice O’Connor and others are correctly predicting that these recent decisions will serve as a wake-up call.

Pennsylvania needs to have a serious dialogue about how we choose appellate court judges. We hope that dialogue can proceed. If not, we will lose what Justice O’Connor has called the “one safe place” we have — fair and impartial courtrooms.

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Aug 11 2009

“What Should be Unacceptable is the Election of Judges”

Published by under Judges,Opinion

Former federal judge H. Lee Sarokin offers a thought-provoking blog post on the Huffington Post entitled, “When Does a Campaign Contribution Become a Bribe?”  Judge Sarokin opens with this striking image:

Can you imagine a lawyer or litigant walking up to the bench in the middle of a trial and handing the judge a check as a campaign contribution! Is it any less unseemly if the check was delivered a week or a month before?

He then continues to explain the Caperton decision and the lack of any rule explaining how high a campaign contribution must be to be deemed “too high.”  Judge Sarokin seems to agree with us that it’s not the amount of the donation, it’s the very fact of the donation that is problematic.  He sums this up with an indictment of the judicial election system:

What should be unacceptable is the election of judges. 39 of the states elect judges. Contributions to judicial campaigns now total in the hundreds of millions of dollars. The campaigns themselves have become political, demeaning and adversarial. As in any election, there are those who contribute merely to advance the candidacy of someone in whom they believe. But for many there is an expectation of a quid pro quo. How else does one explain contributions to both of two rival candidates?

Judge Sarokin closes by enumerating additional problems with elections, including the lack of relevant information available to voters and the fact that judicial elections become popularity contests, rather than exercises to find the most qualified judges:

Judges should not be treated like American Idol contestants. One of the principal roles of the judiciary is to protect minorities against the tyranny of the majority. Election of judges reverses that noble goal and demeans the judiciary. The influence of money should have no place in our judicial system.

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Jul 22 2009

Something’s Still Rotten in the State of West Virginia

Published by under Judges,News

A little over a month has passed since the Caperton decision, and things still seem to be rotten in the state of West Virginia. Both the Charleston Gazette and the Associated Press (via Forbes.com) are reporting new accusations of judicial impropriety in a case involving Massey Energy, the coal company that was accused in Caperton of buying a WV Supreme Court Justice through campaign donations.

County Judge Michael Thornsbury is presiding over a separate pollution case involving Massey.  A motion filed by plaintiff’s attorneys to have Judge Thornsberry removed from the case alleges that seven thousand dollars donated by Massey’s lawyers to the Judge’s election campaign may have bought the company suspect judicial decisions in its favor, including denying the plaintiffs’ motion for a class-action suit, and foisting a settlement offer upon the plaintiffs with very little notice.

The Caperton decision spoke of how the appearance of impropriety could dangerously erode public confidence in the judicial system. These West Virginia cases, which highlight the problem of judges accepting campaign donations from the lawyers and parties before them, undermine the public’s confidence even further.

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Jul 20 2009

A Little Bit Can Go a Long Way

Published by under Judges,News

A judge in New Orleans is facing removal from the bench because she is alleged to have made a damages award to a plaintiff not based on the merits of the case but because she wanted to help his lawyer, who had contributed to her election campaign.  Interestingly, the numbers at issue here — both the damages award and the campaign contribution — are pretty low, especially by Caperton standards.  But that’s the point, it doesn’t matter how much the contribution is — a little bit can go a long way.

NOLA.com reports that the Louisiana Supreme Court will hold a hearing on whether to remove Judge Joan Benge from the bench because of a 2001 car accident case in which she awarded $4,275 to a plaintiff .  Benge reportedly was leaning towards making no award, but decided to award damages because of her “affinity” for the plaintiff’s lawyer and upon advice from a fellow judge who ultimately himself served time for corruption.

Testimony submitted to the Judiciary Commission, which investigated Benge and recommended her dismissal, reveals the following interactions regarding the damages award:

[W]hile considering how to rule, Benge called [then Judge] Bodenheimer to vent about the trial. She said [the plaintiff] likely would get nothing from the suit but for her affinity for [John] Venezia [the plaintiff’s lawyer], who had contributed $925 to her campaign for judge and later gave her another $1,425.

“I’m struggling with it,” she told Bodenheimer, “because if it wasn’t for Venezia, you know, I’d probably zero it. It would probably be my first zero.”

. . . . And at a Christmas party that year, after Benge issued her ruling, Venezia recalled her telling him, “I didn’t like the case. . . . The only reason I gave you anything was because of you.”

Venezia’s contributions amounted to about $2300. That’s it.  The Judiciary Commission itself noted:

“She could have made the award because Mr. Venezia had contributed to her campaign, because she hoped to receive his political support in the future, because she hoped to receive, or did not want to lose, the political support of others in the future, because she personally liked Mr. Venezia, or because she felt a loyalty to Judge Bodenheimer.

“It is not clear what her reason for making the award was. What is clear is that the award was not based on Judge Benge’s assessment of the evidence in the case.”

And that’s the point.  It’s not clear exactly why  Benge ruled as she did, but the fact of the contribution and her own admission to the contributor demonstrate that her decision was not guided by the law and the facts of the case.

This case may be unusual because of the record of virtual admissions by Benge.  But even in cases where the answers aren’t so apparent, questions will arise when judges preside over cases involving campaign contributors.  As this case demonstrates, it’s not the amount of the donation, it’s the fact of the donation. There’s only one solution: get judges out of the fundraising business.

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Jul 15 2009

Making the Case for Merit Selection

In a guest column for the Times-Tribune in Scranton, PMC Board Chair Bob Heim makes the case for Merit Selection.  Heim begins with a discussion of the U.S. Supreme Court’s decision in Caperton and then offers this insight about the problematic role of money in judicial elections:

There’s no question that, , if one side of a case contributed to a judge’s campaign, the other side will worry. . . .

The presence of money in judicial elections may not violate the Constitution. But it violates our citizenry’s trust in the impartiality of those who sit in judgment.

Heim continues: “There is a simple solution: Get judges out of the fund-raising business by changing the way we choose them.”  He points out that in addition to solving the money problem, Merit Selection focuses on the qualifications of the candidates and ensures that judicial selection would on longer be based on the irrelevant factors that so often have a big influence in judicial elections, like ballot position, county of residence, and fundraising prowess.

Heim concludes by noting that the legislature needs to understand that judicial selection is an important issue to the people of Pennsylvania. He urges: “Let your legislators know you care.”

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Jul 06 2009

A No-Brainer

In a recent column, Jen Huntley of the Reno News and Review reacts to the Caperton decision:

When I read about the Supreme Court decision requiring judges facing civil cases involving significant donors to their own election to recuse themselves, my first response was—this is a no-brainer! How could anyone be impartial in a decision where one of the litigants had donated millions of dollars to get them elected? More to the cynical point—why would anyone contribute that kind of money to get a judge elected unless one thought they might want that judge’s good favor somewhere down the line?

Huntley goes on to explain that she learned from discussing the case that the decision may lead to new problems, like an increasing number of recusal motions. She raises an interesting question about judges who try to recuse but later are ordered by a higher court to hear the case:

In Las Vegas, a judge attempted to recuse himself from a case involving a litigant who had contributed a small sum to the judge’s election. The Nevada Supreme Court instructed him to hear the case anyway.

We have an easy solution for both problems: get judges out of the fundraising business and eliminate the question of recusal in cases involving campaign contributors.  Huntley also seems to recognize that the electoral system is the root of the problem:

Caperton raises the potential for corruption that flows from the system of electing, rather than appointing, judges. Americans adopted the electoral system because it seemed less corrupt. But with election costs skyrocketing, interested donors have more opportunity to try to create a favorable judicial climate for themselves.

Electing judges doesn’t make sense.  Judges should not have to wrestle with whether to recuse because a contributor is in court.  And court-users and the public should not have to worry about whether or not the judge might be biased because of campaign contributors. The solution is clear: Merit Selection gets judges out of the fundraising business.  To us, that’s a no-brainer.

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Jul 02 2009

“The Real Answer is to Adopt Merit Selection”

Bob Ewegen over at the Blackacre Journal shared his thoughts about Caperton earlier this week.  After a colorful retelling of the facts, Ewegan notes:

If you’re a fan of author John Grisham, you may recognize the plot of his latest legal thriller, The Appeal, which Grisham admits was inspired by the events in West Virginia.  And as rank as the fictional outcome or the real events may seem to fair-minded Americans, the same outrage could have been perpetrated in any of the thirty-nine states that still elect at least some of their judges in contested elections.

Ewegen notes that his state, Colorado avoids these problems because Colorado uses Merit Selection: “This system is infinitely preferable to letting rich litigators rig the scales of justice by paying millions to elect judges predisposed to their side to the courts that will decide the manipulators’ cases.”

Ewegen goes on to explain the Supreme Court’s decision in Caperton and concedes that the decision, combined with long-existing requirements that judges recuse if they have a direct financial outcome in the case may solve some problems.  But, he argues, “the real answer is for the thirty nine states that still elect judges in contested elections to adopt merit systems like Colorado’s.”

We agree and hope Pennsylvanians will be given the opportunity to decide whether to change the current judicial election system and adopt Merit Selection for the appellate courts.

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Jul 01 2009

We All Deserve an Even Playing Field

Published by under Judges,Merit Selection,Opinion

In the wake of Caperton, an editorial in the San Antonio Express-News urges Texas to adopt Merit Selection for its judges.  Leading the charge for reform in Texas is the current Chief Justice of the Texas Supreme Court, Wallace Jefferson.  His support for Merit Selection continues a tradition begun by his predecessors on the bench; he is “the third successive Texas Supreme Court chief justice to advocate reforming the state’s judicial selection process.”

Jefferson had warned of the danger posed by money-packed judicial elections even before the Caperton decision came down, telling the state legislature earlier this year: “If the public believes that judges are biased toward contributors, then confidence in the courts will suffer.”  The Express-News‘ editorial board concurs:

The judiciary system depends on an even playing field to maintain fairness.  And the influence of money and partisanship must be reduced to deliver the even playing field that Texans deserve.

That’s something everyone deserves — including Pennsylvanians.  The way to achieve that even playing field is by getting judges out of the fundraising business. The way to do that is to adopt Merit Selection.

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Jun 29 2009

One Dollar Is Too Much

Published by under Judges,News,Our Perspective

As the Caperton decision continues to make waves around the country, an article in the Bucks County Courier Times highlights its impact in our region.  The context is the current judicial election contest in Bucks County.  (PMC and PMCAction do not endorse or support any judicial candidates, but we report about campaign activities or candidate statements that are relevant to our work).

Dave Zellis, one of four candidates in the race for the Bucks County Court of Common Pleas, is rejecting campaign contributions from lawyers.  His opponents have declined to match this move, and Zellis has faced criticism for having contributed to judicial campaigns himself in the past, but Zellis feels vindicated by the Caperton decision.  Responding to criticism from his opponents’ supporters that the Supreme Court wasn’t sufficiently precise in defining “substantial donations,” Zellis countered:

How do you define a substantial donation. . . . To the average resident trying to make a living in this economy, $100 is substantial. This perception that judges expect something in return from the lawyers standing before them in court-even if that’s not true-gives the justice system a bad name. It has to stop.

That perception of impropriety lies at the heart of the Caperton decision and underscores a fundamental problem of judicial elections-whether the donation is $3 million or $30, it creates the perception that a judge, who is supposed to be impartial, may feel beholden to a campaign donor. As PMC Executive Director Lynn Marks explained:

When you’re in court sitting with your attorney and looking across at your opponent or opponent’s attorney who made a contribution -it doesn’t matter how much they gave; it matters that they did.

It’s true the Caperton decision doesn’t specify the dollar amount at which an appearance of impropriety begins-it doesn’t need to. One dollar having passed from any party before the court to the judge behind the bench is one dollar too much. It’s time to get judges out of the fundraising business.

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