The Daily Herald, a suburban Chicago newspaper, reports that three judicial candidates running in Kane County are refusing or limiting campaign contributions from attorneys.  John Dalton, one of the candidates refusing all attorney contributions explained:

“The citizens of Kane County have the right to a fair trial and an impartial judge. . .. Accepting contributions from attorneys would bring my independence and integrity into question.”

Two other candidates who declined to adopt the same guidelines also claimed to be guided by concerns about ethics and judicial independence:

“Isn’t Mr. Dalton really saying he can’t be impartial here?” [Leonard Wojtecki] said. “I know of no lawyer or judge who is going to throw away their career for a campaign contribution.”

Added [D.J.] Tegeler, a Geneva attorney: “My ethics are not to be bought. If I ever feel down the road I need to recuse myself, I’ll do it.”

But candidate Thomas Patrick Rice’s comments hit the nail on the head:

Rice, a Batavia attorney, called the debate “ludicrous” and a “ploy” for publicity. He said judicial candidates might as well refuse all donations, according to his opponents’ philosophy, because anyone could wind up in a courtroom at any time.

“I may be the only one who has the guts to tell you this, but you have to take the money,” he said. “Until we have (nonpartisan) merit selection, you have to have a campaign that costs money.”

That’s exactly right — when you have judicial elections, there’s no way to get money out of the mix.  The answer, then, is to get money out of the judicial selection system. The way to do that is Merit Selection.

Let’s take a closer look.  It’s not really clear whose money will be turned away.  Is it lawyers practicing before the judge now, or lawyers practicing before the Supreme Court now?  The campaign itself admits it is “impossible to predict the future,” and that recusal may be warranted if a donor later appears before the judge.  And, as the report points out, the pledge “does not mean Baker won’t accept contributions from other lawyers, including those who might share firms and offices with people who practice before her or lawyers who’ve been before her in the past.”

The blog opines that this is a tactical move by the campaign: trying to convert anticipated low fundraising into a statement of reform.  This may be an unfair characterization; perhaps the judge was motivated by only the best intentions. But that doesn’t change the fact that she may still take contributions that can create potential conflicts.

The blog also notes that a more appealing position would be for a candidate to turn away all donations from lawyers. We believe there’s an even better solution to the issue of campaign fundraising: get judges out of the fundraising business altogether. Stop the flow of money to judicial candidates from lawyers, law firms, businesses, unions and individuals who litigate in the state courts.  Merit Selection is the way to do this.

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 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.

[T]he judicial branch of government quickly could erode into a commodity that is “bought and sold by the political power brokers of the moment.”

The chief justice warned of special interests “who demand that the courts rule on the basis of their particular ideological views.”

“For them, justice is determined by whether their special cause wins,” he said. “(O)ften they see no further than their own interest” and “know no limits to the extent they will fight or spend money to get their way,” even though it “may destroy the legal system in the process.”

Chief Justice Price urged the lawyers to educate the public about the need for an independent judiciary:

The task, he said, is to “focus the attention of the people of Missouri on the fact that, when they need a lawyer or when they must appear before a judge, the courtroom should not already be tilted against them by some special interest, no matter how rich, no matter how powerful.”

The editorial agreed with the Chief Justice’s assessment, calling it “right on the mark.”  Although the Chief Justice did not comment on the various proposals that have been put forth to amend Missouri’s Merit Selection system, the editorial writers called the efforts to change the system the “greatest single political threat to justice in Missouri.”

The editorial called for lawyers and nonlawyers to work together to preserve Missouri’s judicial selection system.  This makes sense to us — judicial selection is an issue that affects everyone.  That’s why we’ve been working to promote a dialogue in Pennsylvania about whether to change the way we select appellate judges and move from an electoral system to Merit Selection.

Pennsylvanians are working to bring reform to their judicial selection process. A state on the other side of the continent won a resounding victory defending merit selection.

A recent suit brought in federal court in Alaska had alleged that the state’s non-partisan, merit-based judicial selection procedure violated the Equal Protection Clause of the 14^th Amendment because the Alaska Bar Association, not an elected official, names three of the seven members to the nominating committee that recommends judicial candidates to the Governor for appointment.

The case was dismissed on Friday.  A full written order is forthcoming. “Federal courts have never thrown out a state’s merit selection process, according to Alaska Judicial Council director Larry Cohn,” reports the Anchorage Daily News. “A ruling like that, coming barely two months after conservative activists brought the case, is the equivalent of a first-round knockout.”

This ruling should be a boon to states like Pennsylvania currently fighting for merit selection – says Jonathan Blitzer on the blog of the Brennan Center for Justice.  Pennsylvania is one of only six states that still hold partisan elections for all levels of judges.  The merit-selection system has served Alaskans well since the state’s constitution was adopted in 1956.

For more information about the merit selection bill currently before the Pennsylvania legislature, check out our extensive coverage here.

That raises the question: Will the state get the best impartial justice possible or the most partial justice that well-financed campaign contributors can buy?

Introducing partisan elections to the judicial branch endangers judicial independence within the government system of checks and balances. Electing judges by majority vote in partisan ballots flies in the face of the judicial branch’s responsibilities to be independent of partisan influences and to check the power of the majority from trampling on the constitutional rights of the minority.

How would you like to appear in court before a judge elected with the support of interests who oppose your case?

This is a question we have been asking in Pennsylvania, where we elect all our judges in partisan elections.  The Wisconsin State Journal agrees with us on the solution: “Adopting merit selection is the best way for Wisconsin to restore public trust in impartial justice.”

There may be some confusion in this race because there are two Bob Hunters on the N.C. Court of Appeals. The Bob Hunter running for Supreme Court is Robert C. “Bob” Hunter, who is a Democrat from McDowell County. The other is Robert N. “Bob” Hunter, a Republican from Greensboro in Guilford County who was elected to the Court of Appeals in the 2008 election.

Judicial elections often depend on name recognition, so making sure voters know which Bob is running is important.  But another source of confusion here is that the party identifications Betts uses to help distinguish the judges won’t be available to voters:

Of course, N.C. appellate judicial elections are non-partisan and ballots do not indicate which political party a candidate is allied with. But the parties themselves usually try to make sure voters know of their political inclinations.

So much for nonpartisan elections.

The judge, a 61-year-old Republican in a mostly Democratic district, said contributions from attorneys, developers or others with special interests could give the impression of influence over a judicial decision. Hockenbury said it’s never been an issue, nor does he want it to be.

Although the judge did raise money in his previous campaigns, he has decided not to this time around.  It’s interesting to note that in his initial election, Judge Hockenbury raised about $22,000.  So, we’re not talking about Caperton-size contributions here.  But still, the judge recognized that the role of money in judicial elections creates dangerous perceptions.

Judge Hockenbury has chosen one solution to the problem of money in judicial elections. But we think a broader, systemic solution that would get judges out of the fundraising business altogether would be even better.