Mar 03 2014

New Pennsylvania Code of Judicial Conduct Rule Bars Judges From Hearing Major Donors’ Cases

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In January, the Pennsylvania Supreme Court announced the adoption of a revised Code of Judicial Conduct which will go into effect July of this year. One major area affected by the revised rules revolves around campaign contributions to judicial candidates. Under

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the new rules of judicial conduct, judges will have to recuse or disqualify themselves from hearing cases involving parties whose campaign contributions “would raise a reasonable concern” about a judge’s ability to be fair and impartial.

Unlike some states which have enacted fixed monetary limits, the Pennsylvania Code’s rule on campaign contributions is far more subjective. Because the new code does not explicitly define what a “reasonable concern” is, it would be left to the discretion of the judge to make his/her own interpretation based on the facts and the parties involved. “Ultimately, each judge will have to weigh the donations and the timing of those donations when considering recusal,” said Northampton County President Judge Stephen Baratta. Pennsylvania Chief Justice Ronald Castille believes that in adopting the “reasonable concern” standard, it ensures even application by judges across the entire state.

WIth judicial candidates now running campaigns that generate contributions in the millions of dollars, public perception has been a significant issue, not just in Pennsylvania but nationwide. A 2013 poll by the Brennan Center and Justice at Stake found that “the public is skeptical of allowing campaign contributions in judicial contests. Nearly 90 percent of voters across the country think campaign donations have at leas some influence on judges’ decisions and more than nine out of ten people said judges should recuse themselves when one party in the case has donated directly or indirectly to a judge’s campaign.”

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Jan 31 2012

Trying to Solve the Money Problem

Published by under Merit Selection

We know that the public is increasingly concerned about the influence campaign contributions to judicial candidates may have in the courtroom.  Yet, many states, including Pennsylvania, continue to elect judges in expensive elections that essentially require judicial campaigns to seek funds from lawyers, law firms, businesses, unions and other special interest groups with frequent litigation in the state courts.  A recent New York Times editorial summed up the problem: “there is an urgent need to protect judicial integrity from the flood of campaign cash.”

The editorial goes on to praise a new rule adopted by the Tennessee Supreme Court prohibiting judges from hearing cases when campaign spending by lawyers or litigants raises a reasonable question of their impartiality.  “It requires judges to step aside when the level of campaign support raises a reasonable concern about his or her ability to be fair.””  The rule applies to direct contributions to a judicial campaign or independent expenditures that indirectly support a campaign.  Republican legislators in Madison County, Illinois have proposed a similar new rule. It would require attorneys to disclose to the judge and all parties to a lawsuit any campaign contributions of more than $500 made to

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that judge by the attorney or their firm within the past five years. The judge would then have to recuse  from the case if a motion to do so was filed by any party to the case who did not make a contribution.

The New York Times opined that it would be beneficial for many more court systems to follow suit and specifically identified Pennsylvania as a problem: “campaign spending problems have plagued judicial races in states like Illinois, Alabama and Pennsylvania.”  The new recusal rules are important steps in reducing the influence of campaign contributions and restoring public confidence in the impartiality of the judiciary.  But the best solution is to get judges out of the fundraising business by choosing them in a way that gets money out of the process.  That way is Merit Selection.

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Nov 28 2011

What is Recusal Really For?

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In a thoughtful piece in the Huffington Post, Lisa McElroy and Amanda Frost explore the issue of recusal. The context is the Proposition 8 case in California and claims that the presiding judge should have recused because of his sexual orientation. The article’s central premise gets to the heart of what recusal is really for, namely, cases where the judge has a personal financial interest in the outcome of the case or a close relationship with the parties or lawyers in the case such that his or her impartiality can reasonably be questioned:  “But essential aspects of the human condition — such as sexual orientation and loving relationships — cannot be grounds for requiring that a judge step aside.”

The article demonstrates a critical appreciation for what we should strive for when selecting judges, the most qualified,fair and impartial judges we can get:

The truth is that every judge comes with a race, gender, sexuality, family, friends, and a host of other biological characteristics and personal experiences that color their view of the world. That’s a good levitra mail no prescription thing. We want black (and white) judges to decide cases about affirmative action. We want female (and male) judges to decide cases about gender discrimination. And we want gay (and straight) judges to decide questions about same sex marriage. Even if we could find race-less, gender-less, asexual hermits to serve as our judges, why would we want such isolated individuals to address the vital issues facing our society? Rather than try to strip judges of their humanity, we should instead seek to fill judgeships with thoughtful people who strive to understand perspectives that differ from their own and remain neutral when deciding cases questioning viewpoints they personally hold.

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McElroy and Frost get it just right.

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Jul 15 2011

Something We Should Do in the Meantime

A Times-Tribune editorial asserts that although merit selection is the best way to select judges, strict disclosure requirements and clear recusal rules are necessary in the meantime. The author remembers the state Supreme Court race of 2009 in which politics played a central role. During the campaign, there was much concern that Democratic or Republican success in legislative redistricting depended upon the political party of the elected judge. “After such partisan wrangling during campaigns, the public is expected to believe that the judges who emerge from it are not affected by it.” The article predicts that these issues will come up again later this year if the Supreme Court rules on legislative redistricting. Furthermore, with the influx of special interest money, the independence of the judiciary – or at the very least public confidence in that independence – is threatened. “Until Pennsylvania finally gets around to merit selection, it should mandate comprehensive disclosure as the second-best option.” We agree.

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Jun 28 2011

Stricter Recusal Standards Offer Only Part of the Answer

A recent editorial in West Virgina’s The Charleston Gazette implores the American Bar Association’s House of Delegates to consider model recusal standards at its session in August. West Virginia has been at the center of conversations about recusal reform since 2009’s Caperton v. Massey. After a trial decision in favor of Caperton, Massey contributed $3 million to a judicial race that ultimately elected Justice Brent Benjamin to the West Virginia Supreme Court. The Caperton case stirred public skepticism of the court when the case came before the West Virginia Supreme Court and Justice Benjamin refused to recuse himself; the Court then ruled in favor of Massey, twice. Caperton appealed to the US Supreme Court arguing that Massey’s significant financial contributions during the 2004 judicial election was cause for Justice Benjamin’s recusal. The Supreme Court agreed, affirming the need for respect for, and impartiality of, the courts: “We conclude that there is a serious risk of actual bias – based on objective and reasonable perceptions – when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”

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According to the Brennan Center for Justice at NYU Law School, “Judicial election spending has spiraled out of control in the past decade, with high court candidates raising $206.9 million in 2000-2009, more than double the $83.3 million raised in the 1990s.” While clearer recusal standards will help to avoid corrupt results and hopefully regain the trust of the public, they do not address the root of the problem – that judicial elections, and their reliance on campaign contributions, create a climate of distrust. When candidates must raise money to run for the bench, elected judges may feel indebted to their contributors, and their decisions may affect the availability of future campaign funds. Furthermore, when the public watches a judge, who benefited from campaign contributions, rule in favor of that donor, trust is eroded regardless of the merits of the decision.  A June 15th New York Times editorial asked “Can Justice Be Bought?” Stricter recusal standards offer only part of the answer. Moving away from judicial elections and instead supporting a system that prioritizes a judge’s ability to analyze the law over his or her ability to raise money provides a more workable solution.

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Apr 25 2011

A Call For Recusal Reform in Illinois

In a 4/25 editorial, the Chicago Sun-Times calls for new standards to require a judge to step down from cases involving campaign contributors. The paper laments the increasing price tag of judicial elections, and the perception that campaign contributions to judges have an influence on their rulings.

How do judges raise money to run for office without creating at least the appearance — if not the reality — that somebody’s buying a favorable judicial ruling down the line?

It’s a problem that’s getting worse, as big money has started pouring into Illinois judicial races. Last fall, more than $3 million was funneled into the retention campaign of Illinois Supreme Court Chief Justice Thomas L. Kilbride — the most in state history for a retention race.

As judicial campaign spending continues to increase, mandatory recusal rules are an increasingly important tool. They help mitigate the appearance that impartial jurists might be influenced by campaign donations. They also prevent judges who might be tempted to show favoritism from ruling on cases involving donors. But we think a better solution would be to relieve appellate judges of the need to raise campaign funds in the first place.

Under Merit Selection, there is less potential for influence, real or perceived, because judges can reach the bench without needing campaign donations. Appellate judges are evaluated based on their knowledge, experience and skill, instead of their ability to amass campaign funding. And when they go before the voters in retention elections, they’re not running against a political opponent. They’re running on their service on the bench, a record that the public can look to when deciding if they deserve to be retained.

Potential conflicts of interest aren’t completely eliminated, of course, but one important source is taken out of the equation. Judges can rule without the specter of campaign donor influence hanging over their decisions, and the public can be more confident in the fairness and impartiality of the courts. That’s one important reason why we support the switch to Merit Selection for Pennsylvania’s appellate judges.

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Feb 23 2011

North Carolina Voters Wary of Courtroom Cash

Published by under Judges,News,Our Perspective

A new public opinion poll in North Carolina show just how corrosive judicial elections are to public confidence in a fair and impartial judiciary. The poll, which was conducted by the North Carolina Center for Voter Education, and our friends at the Justice at Stake Campaign, ” finds that 94 percent of North Carolina voters believe campaign contributions have some sway on a judge’s decision, including 43 percent who say campaign donations can greatly affect a ruling.”

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“Trust in the courts is eroded when judges have to dial for dollars from parties who appear before them,” said Bert Brandenburg, executive director of Justice at Stake, and we couldn’t agree more. Poll after poll after poll has shown that the public is convinced that the decisions of elected judges are influenced by campaign donations.

States have tried several ways to combat this perception. North Carolina has a first-in-the-nation system of public financing that allows judicial candidates (who can raise a small initial fund) to run for the bench without having to assemble huge campaign warchests. Recently, court rules in New York were modified to prevent court administrators from assigning a case to a judge if any of the lawyers or participants in the case donated $2,500 or more in the previous two years.

Our opinion is that the best way to restore trust in the impartiality of Pennsylvania’s appellate courts is to relieve our appellate court judges and justices of the burden of campaign financing in the first place. If campaign donations don’t play a role in putting appellate judges on the bench, then the public doesn’t have to wonder if those donations had an influence on the way those judges rule. That’s why we believe Merit Selection is a superior solution.

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Jan 06 2011

A Guide to State Rules on Disqualification

Published by under News,Resources

The American Judicature Society Center for Judicial Ethics has announced the creation of a resource that promises to be a useful tool for court watchers. The Society’s new document, called “Judicial Disqualification Based on Commitments and Campaign Contributions,” tracks the adoption of state rules that require disqualification of judges based on relationships with, or campaign donations received from, a party or attorney involved with the case.

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The document, which will be updated as state rules are adopted or modified, is available on the Society’s page devoted to judicial disqualification.

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Jan 19 2010

Court chasing its tail in Wisconsin

The Wisconsin Supreme Court has proposed an order ruling that judges can’t be forced to recuse themselves from hearing a case solely on account of having received a campaign contribution from one of the litigants. The order offers a valid argument supporting this rule:

Disqualifying a judge from participating in a proceeding solely because the judge’s campaign committee received a lawful contribution would create the impression that receipt of a contribution automatically impairs the judge’s integrity. It would have the effect of discouraging ‘the broadest possible participation in financing campaigns by all citizens of the state’ through voluntary contributions . . . because it would deprive citizens who lawfully contribute to judicial campaigns, whether individually or through an organization, of access to the judges they help elect . . . .

Can’t deny that – it’s certainly a problem.

The problem is, not disqualifying a judge who receives money from a litigant creates an even worse impression: that justice can be bought. In no other country can a litigant give money to a judge without committing bribery (the US is the only country with jurisdictions that elect appellate judges). Of course we are not equating contributing to a judicial campaign with an act of bribery, but it sure may feel that way to a litigant who did not contribute a hefty sum to the judge when her opponent did.

There is a profoundly elegant solution to this otherwise intractable mind-twister. Stop electing judges. There, that was easy.

Incidentally, the article points out that the order comes at a time when the court is being slammed with requests that Justice Michael Gabelman recuse himself from all criminal cases because of statements he made during his campaign that basically equated defending accused criminals with supporting crime. The truthiness of those claims were almost grounds for having Gabelman removed from the court altogether. Race-to-the-bottom campaign statements are just another reason why judges don’t belong in elections.

HT: How Appealing

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Dec 15 2009

Judges “Unfriending” Lawyers in Florida

Published by under Judges,News

Judges in Florida should take advice from the country music song and “find out who your friends are.” According to the Law Blog of the Wall Street Journal, Sunshine State jurists have been advised by the Florida Judicial Ethics Advisory Committee (FJEAC) to avoid becoming Facebook “friends” with lawyers who may appear before them in court.

Facebook is a social networking website that allows its 350 million + users to “friend” other users. By creating a network of Facebook friends, users are then able to share personal information, stories, articles, pictures, videos, and a host of applications with people on their network. While the website began as a social tool for college students, it has since expanded to become an all-purpose utility for businesses, charities, organizations, and individuals to share their products, causes, and messages across the world wide web (Pennsylvanians for Modern Courts has a Facebook page, located at  Users can become “fans” of the myriad organizations with pages on the website and thereby stay informed through updates.

Political candidates, including judges in states that still elect judges in popular elections, often create Facebook pages as a means of developing support and distributing information to those interested. And though many working folks prefer to use websites devoted to the career-minded (such as LinkedIn) for their online professional networking, Facebook is becoming an increasingly popular destination for such vocational contact-exchanges.

According to the Law Blog, “while [Facebook] ‘friending’ connotes a level of intimacy greater than, say, an exchange of business cards, it falls well short of establishing or confirming true friendship.” The FJEAC, however, considers the social component of Facebook to great a threat to the independence of judges, and issued this advisory opinion. The opinion poses a series of questions and brief answers, followed by this explanation:

The Committee believes that listing lawyers who may appear before the judge as “friends” on a judge’s social networking page reasonably conveys to others the impression that these lawyer “friends” are in a special position to influence the judge. This is not to say, of course, that simply because a lawyer is listed as a “friend” on a social networking site or because a lawyer is a friend of the judge, as the term friend is used in its traditional sense, means that this lawyer is, in fact, in a special position to influence the judge. The issue, however, is not whether the lawyer actually is in a position to influence the judge, but instead whether the proposed conduct, the identification of the lawyer as a “friend” on the social networking site, conveys the impression that the lawyer is in a position to influence the judge. The Committee concludes that such identification in a public forum of a lawyer who may appear before the judge does convey this impression and therefore is not permitted.

The St. Petersburg Times noted that the ethics ruling requires that judges not only refrain from friending lawyers that may appear before them, but actually “unfriend” any whom they have already friended. The paper points out that “Judges are not bound by the ruling but tend to follow the committee’s advice.” That didn’t stop one Circuit Judge, Pat Siracusa, from dropping 82 friends. Another, Judge Rex Barbas, had a more practical question: “How do you unfriend somebody?” he asked. “And do I get in trouble if I can’t figure it out?

Whether or not this is a trend that other states will follow has yet to be seen. In Pennsylvania, there is currently no such requirement. In fact, there is not even a requirement that a judge recuse his or herself from a case involving a party or attorney who has contributed money to the judge’s election campaign. And, as the St. Petersburg Times article indicates, this leads to some less-than -kosher relationships in the courtroom:

In close-knit courthouse circles, the lines between attorneys and judges are hardly black and white. Lawyers contribute to judicial campaigns. Judges hear cases argued by lawyers they once practiced alongside or have known for years. Judges disclose the connections in open court and sometimes remove themselves from a case if they are too close to the players.

“Sometimes” remove themselves, but not always. The problem of money in judicial selection seems to us a bigger problem than the “friending” issue, but the underlying concern is the same: how do we maintain public confidence that judges are impartial and unbiased? We believe that requires more than rules about social networking — it requires judicial selection reform.

To join a discussion about this topic, become a fan of our Facebook page and leave your thoughts!

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