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In the wake of the United States Supreme Court’s decision in Caperton v. Massey, many states decided to review their rules governing recusal.  Michigan  last week formally issued a new recusal rule that includes a provision empowering the entire Supreme Court to review and overrule the refusal of one of the justices to recuse. Our friends at Gavel Grab have a detailed analysis of the continuing bitter debate between the current justices regarding this rule.

What grabs our attention is the particular focus of the dissenting justices on the “rights of elected judges” and those who voted for them.  Here’s part of Justice Maura Corrigan’s commentary dissenting from the rule change:

For the first time in our state’s history, duly elected justices may be deprived by their co-equal peers of their constitutionally protected interested [sic] in hearing cases. Starting today, those contesting traffic tickets will enjoy greater constitutional protections than justices of this Court.

When it comes to the courts and fair trials, we’ve always been most concerned about the litigants having a fair trial.  Certainly, a litigant’s right to have a fair and impartial judge outweighs a judge’s right to hear a particular case.  And, frankly, a litigant’s rights — even in traffic court — should be of more concern to everyone who cares about justice than the judge’s right to preside over a particular case.

Chief Justice Marilyn Jean Kelly made a similar point in her response to the dissenters:

[I]t is a gross perversion of law for Justice Corrigan to allege that, ‘In one administrative order [the recusal rule], the majority takes away the right of every citizen of Michigan to have his or her vote count.’ The accurate statement is, with this rule, the Court permits a justice’s recusal where that justice is unable to render an unbiased decision and unable or unwilling to acknowledge that fact. The justice system and this Court can only be stronger for it.

Winning an election does not give a judge the right to preside over any or every case that comes before the Court.  Nor does voting for a particular judge give the public the right to have that judge preside over any or every case that comes before the Court.  A judge should only hear a case if it is certain he or she can be fair and impartial.

The results at the ballot box should not dictate when a judge is free from bias in a particular case.  In face, as we have argued repeatedly, it is precisely because judges are elected that strong recusal rules are necessary. The fact that some — including some state Supreme Court justices in Michigan — seem to believe that election returns are more important than ensuring a fair and impartial court — should be of great concern to us all.

The Appeals Court panel considering the charges of judicial misconduct filed against Wisconsin Supreme Court Justice Michael Gableman for a misleading election ad has recommended that the charges against him be dismissed.  The question will now go to Justice Gableman’s colleagues on the state Supreme Court for final resolution.  Gavel Grab has a good summary of the case and events leading up to it, and you can read the panel’s decision here.  What worries us is the possible further erosion of the differences between judicial elections and other elections and what it might mean for Pennsylvania.

The case focused on the Wisconsin Supreme Court Rule governing judicial campaign conduct. The pertinent part reads:

A candidate for a judicial office shall not knowingly or with reckless disregard for the statement’s truth or falsity misrepresent the identify, qualifications, present position, or other fact concerning the candidate or an opponent.  A candidate for judicial office should not knowingly make representations that, although true, are misleading, or knowingly make statements that are likely to confuse the public with respect to the proper role of judges and lawyers in the American adversary system.

The panel found that the ad in question  — which focused on Justice Gableman’s opponent and a criminal case he handled as a public defender — did in fact violate the second part of the Rule.  None of the statements in the ad were false, but taken together they were misleading.  However, the panel also concluded that only the first part of the Rule is mandatory (the “shall not” clause), while the second part (the “should not” clause) is aspirational.  Violations of the second clause cannot be the basis for the imposition of discipline.

One judge wrote in concurrence to note that he believed the conduct violated the entire Rule but that the Rule itself was in violation of the First Amendment.  He found the rule to be “an unconstitutional arrogation to a government tribunal of the electorate’s responsibility and sole power to assess campaign speech.”

What’s troubling is the continuing erosion of the special rules regarding judicial elections that recognize that judges are different from other public officials. The more judicial elections become just like other elections — with major fundraising, campaign speeches, heated debates on hot-button issues, and misleading, sensational ads — the more difficult it is for the public and the judges to recognize the unique role judges play.  Once that recognition fades, it will be very hard to recapture when a judge actually takes the bench.  We see that now with the widespread public perception that “justice is for sale” to the biggest campaign contributor.  If judicial candidates may permissibly mislead voters in their campaigns, we will witness an ever decreasing confidence in the courts.

There has been a movement across the nation to challenge and strike down rules and regulations that set up special conditions for judicial elections.  Pennsylvania’s Code of Judicial Conduct (which regulates judicial candidates as well) provides in Canon 7B1(c) that “Candidates, including an incumbent judge, for a judicial office. . . should not . . . misrepresent their identity, qualifications, present position, or other fact.”  Will Pennsylvania be the next state to find that “should not” is just an aspiration and judicial candidates are free to mislead the voters in their quest to reach the bench? Let’s hope not.

From our friends at Gavel Grab:

Former Wisconsin Justice Louis Butler Jr. . . . . nominated by President Obama to the federal bench in Wisconsin, was asked by a GOP senator at a confirmation hearing in Washington about his defeat in two elections for the state’s high court.”

We can only imagine the very slight smile that must have formed on the corner of Butler’s lips as he made this reply:

‘After 16 years on the bench, I may be a better judge than politician,’ replied Butler, according to an article in the Milwaukee Journal Sentinel.”

Butler was defeated last year in an ugly contest with then-Judge Michael Gableman, who now faces an ethics complaint accusing him of lying in a campaign ad aired against Butler.”

Some judges would no doubt make excellent and effective politicians, and some politicians would likely make fine judges. But we think using mere “electability” as the decisive factor in how we choose our judges leaves too much to chance, and gives too much weight to factors other than a candidate’s qualifications.  For choosing our judges, being a good politician should not be more important than being fair, impartial, and wise. Judges should be chosen on merit.

We recently reported that PMC joined Justice At Stake and 19 other partners in filing an amicus brief in the Citizens United case.  As we noted, this campaign finance case likely will have important implications for the future of judicial elections.  This issue — particularly the poisonous influence of money in judicial elections — was the focus of our amicus brief.  Gavel Grab offers in-depth coverage of the case, including a three-part series on briefs filed in this case.

Pennsylvanians for Modern Courts (PMC) has joined the Justice at Stake Campaign and 19 other judicial reform groups across the country, in filing an amici curiae (“friends of the court”) brief with the United States Supreme Court in Citizens United v. FEC case on September 9. The case focuses on campaign finance laws regulating corporate spending in elections.

The Citizens United case should be of particular concern to everyone worried that money is polluting the political process.  The Court is being asked to remove restrictions on campaign spending by corporate groups.  Such a decision “could trigger an election spending war in which companies, unions and other groups could tap directly into their treasuries.”

This would remove a major bulwark preventing runaway spending in judicial elections, a system already suffering from the corrupting influence of campaign cash. Said Justice at Stake’s executive director Bert Brandenburg: “The public needs to be confident that our courts are fair and impartial, and not swayed by election cash. No one wants justice to be for sale.”

As the brief argues:

“Special interest spending on judicial elections-by corporations, labor unions, and other groups-poses an unprecedented threat to public trust in the courts and to the rights of litigants. . . Unleashing corporate treasury funds on judicial elections . . .  will distract judges from their most important job: guaranteeing impartial justice to the litigants who come before them.”

PMC is proud to join the Justice at Stake Campaign and our other partners in opposing any steps that would increase the influence of money in the judicial selection process. Our judges need to be concerned with following the law, not the currents of election cashflow.

More information about Citizens United is available on Gavel Grab.

Not surprisingly, there’s been a lot written about the United States Supreme Court’s decision this week in Caperton. The Philadelphia Inquirer has written several articles focused on the decision, and its impact on Pennsylvania, including the views of those who believe Merit Selection is the answer.  As Rob Beyer, a former Pennsylvania judge, explained:

‘The Supreme Court’s Caperton decision is a narrow ruling concerning an extreme situation, but it highlights the fundamental inconsistency between selecting judges in partisan elections and the principle, required by constitutional due process, that judges not only must be impartial, but must maintain an appearance of impartiality.’

Beyer explained that he was hopeful that the decision would generate support for the adoption of Merit Selection in Pennsylvania.

The New York Times’ report on the decision can be found here; today’s article focuses on the probable impact of the decision.  The Times’ editorial on the decision concludes:

Chief Justice Roberts is fond of likening a judge’s role to that of a baseball umpire. It is hard to imagine that professional baseball or its fans would trust the fairness of an umpire who accepted $3 million from one of the teams.

Our friends at Gavel Grab offer extensive coverage of the decision as well as important analysis.

Our partners at Justice At Stake commissioned a survey about the public’s attitudes towards the influence of campaign contributions on judicial decision-making , and guess what they found:  “An overwhelming percentage of U.S. adults believes that judges cannot be completely impartial and should not participate in cases that involve large campaign contributors.” As reported on Gavel Grab and in Justice At Stake’s press release, 81% of those surveyed also believe that judges should not be making their own decisions about recusing in such cases but instead should abide by the decision of another judge.

Reflecting on the poll results, Justice At Stake Executive Director Bert Brandenburg explained:

Americans overwhelmingly believe that campaign cash has no place in the courtroom. . . . They are very skeptical that a judge can be impartial when one side has spent big dollars to help put them on the bench.

As Pennsylvania’s judicial election season heats up, we should be asking ourselves why we continue to put would-be judges in the position of funding their campaigns with contributions from parties and lawyers likely to appear before them in court.  Why do we tolerate a system that undermines confidence that justice will be meted out impartially? It’s time for a change.  We need to get judges out of the fundraising business. Merit Selection can do that.

Our friends at Gavel Grab have a very interesting post about the recent decision of a federal court judge striking down various restrictions on the conduct of judicial candidates in Wisconsin.  In short, “State judges can now join political parties, endorse political candidates, and seek  campaign contributions. . . .”  The decision of U.S. District Judge Barbara Crabb in Siefert v. Alexander can be found here.

An article in the Milwaukee Journal Sentinel focuses on the rule allowing candidates to join political parties, but we’d like to discuss the rule change that will now allow judicial candidates to personally solicit campaign contributions.  Pennsylvania has a rule in place similar to the one struck down in Wisconsin that prohibits judicial candidates from personally soliciting campaign funds.  Instead, they must create campaign committees to handle the fundraising.  But Judge Crabb points out that the use of campaign committees does not solve the problems inherent in fundraising for judicial elections:

Defendants may mean to say that a campaign solicitation from a judicial candidate is more coercive because of the possibility that the potential donor will find herself in that candidate’s court after he is elected.  If that is so, defendants give no reason to believe that the problem is solved by the use of campaign committees.  As plaintiff and other courts have pointed out, a campaign committee does not stop a candidate from discovering who donated and who did not, rendering illusory any belief by the potential donor that he is freer to say no to the committee than the candidate himself.

Judge Crabb also rejected the argument that using campaign committees for fundraising helps increase public confidence:

To the extent judicial fundraising undermines confidence in the judiciary, it is a result of judges’ deciding cases involving those to whom a judge is financially indebted and may be again at the next election cycle.  Neither defendants nor the cases they cite identify any reason to believe that voters are less suspicious of such a relationship simply because the contribution request is signed by the committee chairman rather than the candidate.

In Wisconsin, judicial elections will not look more like elections for other public offices.  But for a position that’s so different from that of other public officials, perhaps it’s time to explore making the selection process for judges totally different.  It’s time to stop electing judges.

Thanks to Gavel Grab for alerting us to this news from Ohio: now folks can contribute more to judicial campaigns in Ohio.  According to the DispatchPolitics, “Candidates for judicial posts in Ohio will be able to collect 15 percent more from virtually all types of contributors next year under new limits approved this week by the Ohio Supreme Court.”  The news article and Gavel Grab’s post have a chart showing the new contribution limits.

The increase follows the mandatory four year review of contribution limits.  Asked why the increase was made, a spokesman for the Ohio Supreme Court “said the justices opted for the increases so ‘candidates’ buying power stays in pace with inflation.’”  Another sign of how important money is in judicial elections.

During its Friday conference, the United States Supreme Court voted to grant certiorari in Caperton v. Massey, the case from West Virginia that asks whether judges should be required to recuse in cases involving significant contributors to their election campaigns.  This case will be watched closely by judges in election states and by all those concerned about the escalating influence of money in judicial selection.  As Gavel Grab reminds us, “three in four Americans believe that campaign contributions can influence a judge’s decisions in court.”

The issues in this case touch a key problem with judicial elections — the role of money in campaigns and whether and how such contributions affect decisions in the courtroom.  The outcome will be interesting not just for any rules it might set down but for how it may change the face of judicial elections.  If new recusal requirements are imposed, will it dramatically change the campaign contribution game? If no requirements are set and recusal is left to the discretion of the individual judge, will even more money start flowing in to judicial candidates?  And what will this do to the public perception of how the courts work?

We will continue to post about this case as the briefs are filed and arguments are held, but we note that the whole issue of recusal in cases involving campaign contributors would be eliminated if we chose our judges a different way.