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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Mar 23 2011

Public Financing Challenge at The Supreme Court

Published by under News,Our Perspective

On Monday, 3/28, the Supreme Court is scheduled to hear oral arguments in McComish v. Bennett, a case that challenges a portion of Arizona’s Citizens Clean Elections Act. The ruling could have serious consequences for states that use public financing to allow elected judges to run for the bench without having to raise campaign funds.

The challenged part of the law allows a publicly financed candidate, facing an opponent spending private funds, to receive an extra infusion of public money if their opponent’s spending goes over a certain amount. This “trigger provision” ensures that publicly financed candidates won’t be at a disadvantage, limited to a certain level of spending, while their privately financed opponents are free to spend as much cash as they can raise.

At issue is whether or not the provisions represent a limitation on the rights of candidates who choose not to accept public financing. According to our partners at the Justice at Stake Campaign:

[a] federal judge declared the Arizona provision unconstitutional, saying it violated the First Amendment because it caused candidates without public funding to limit their campaigning, fundraising and spending of campaign money. The Ninth U.S. Circuit Court of Appeals disagreed, saying the provision imposed “only a minimal burden on FirstAmendment rights,” that there was no evidence of it chilling free speech rights, and that it was needed to fight a perception of corruption.

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Four states – North Carolina, New Mexico, Wisconsin and West Virginia – have turned to public financing plans, to help alleviate the need for campaign fundraising by appellate judge candidates. A ruling against the Citizens Clean Elections Act would likely invalidate similar trigger provisions contained in all four of those plans. Candidates who opt into public financing in future judicial elections will be forced to limit their spending, while candidates who choose to raise their own funds will be free to spend as much as they can amass. How many aspiring appellate judges will choose public financing, knowing that they won’t be able to respond if their opponents outspend them?

While we respect any attempt to mitigate the influence of campaign spending on the outcome of judicial elections, we think that a better solution is to completely eliminate campaign financing as part of the process. Let appellate judges reach the bench based on their experience, skills and qualifications, not on the back of a huge campaign war chest. That’s why we support Merit Selection for appellate judges i

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Pennsylvania.

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Aug 27 2009

People Are Talking About Merit Selection

Dialogue and debate are critical when  important decisions are at stake.  That’s why it’s heartening to learn that people are talking about Merit Selection in different forums in several states.  This includes Pennsylvania, where the Courts Subcommittee of the House Judiciary Committee will soon be holding hearings on Merit Selection.

But Pennsylvania is not alone.  In West Virginia, the Independent Commission on Judicial Reform appointed by Governor Joe Manchin is hosting three public hearings, including one focused on Merit Selection.  As the West Virginia Record reports, Governor Manchin responded favorably to the announcement of the hearings:

Our judicial system is too important, not to act without listening to public concerns. . . . I thank the commission’s members for taking time out of their daily schedules to listen to West Virginians’ suggestions and ideas.

Texans, too, are talking about Merit Selection.  As reported in an op-ed in the Lake County Sun, the Caperton decision is renewing attention to the problems inherent in electing judges:

[Former Chief Justice] Phillips said the recent Supreme Court ruling should begin anew a national debate on how judges are chosen. [Chief Justice] Jefferson’s view was that the decision challenged Texans to do more to eliminate the perception that cash campaign contributions influence court decisions.

Op-ed author Willis Webb urges “Let the debate begin. . . again.”

We are looking forward to productive dialogue and debate in Pennsylvania.  The most important thing is to provide the opportunity for the public to weigh in on the critical question of how we select our appellate judges.

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Aug 03 2009

West Virginia Judge Does Not Have to Recuse

Published by under Judges,News

The West Virginia Supreme Court has ruled that Judge Michael Thornsbury is not required to recuse from the case involving Massey Coal Company.  According to the Associated Press (via Forbes.com), the high court found that “Conflict-of-interest allegations are not sufficient grounds for disqualification.”  However, the Supreme Court also ordered Judge Thornsbury to hold a hearing on the administration of the medical monitoring fund and what fees it can charge and to report back to the Supreme Court on that issue.

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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 14 2009

A Good Place To Start

The Charleston Daily Mail reports that the Independent Commission on Judicial Reform appointed by Governor Joe Manchin will be focusing on “judicial selection, campaign finance rules, and the right to appeal.”  Since these have been major issues in West Virginia recently, this seems to us like a good place to start.  We hope that Pennsylvania will also have an opportunity to focus public dialogue, study and debate on judicial selection.  Such discussion is the first step toward allowing the people to decide for themselves the best way to select judges.

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Mar 02 2009

U.S. Supreme Court to Hear Caperton Tomorrow

Published by under Judges,News,Opinion

On Tuesday March 3, the United States Supreme Court will be hearing oral argument in Caperton v. Massey — the case from West Virginia involving whether or not judges must recuse from cases involving major campaign contributors.  PMC Executive Director Lynn A. Marks explained in PMC’s press release why this case is so important:

Pennsylvania elects all judges in partisan elections and has seen first hand the steadily increasing influence of money in judicial elections.  Coupled with that has been the decreasing public confidence in the impartiality of our courts.  The more money that comes in, the less confidence people have.

Earlier this year, PMC joined an amicus brief urging the Supreme Court to set some standards governing recusal in such cases.  A key part of the argument was that the essence of due process is a fair and impartial judge.  The brief discussed the history of judicial selection and noted that because of the increasing expense of elections and the growing importance of campaign contributions, “judicial elections have created a crisis in public confidence.”

As PMC Associate Director Shira Goodman explained in PMC’s press release:

Money in the judicial selection process has led the public to believe that the scales of justice are out of whack. This is unacceptable. A strong decision by the Supreme Court requiring recusal in at least some cases will help rebalance the scales.

We will be watching and reporting on the oral argument and further developments.  We also recommend that readers check out Justice At Stake’s Caperton Resource Page, as well as this recent article from the Pittsburgh Post-Gazette.

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Feb 26 2009

Perception and Reality — Linked Together When it Comes to the Courts

Published by under Judges,Opinion

A column by Detroit Free Press assoicate editor Ron Dzwonkowski offers a straightforward, no nonsense approach to the upcoming United States Supreme Court case of Caperton v. Massey.  As we’ve reported, this is the case from West Virginia that presents the question of whether judges have to recuse (step aside) in cases involving campaign contributors.  Mr. Dzwonkowski writes:

Where the courts are concerned, if it looks bad it is bad, so don’t do it. In the legal system, fairness is paramount and the appearance of fairness is … whatever comes right under paramount.

We agree that when it comes to the courts, perception is as important to reality.

His common sense reasoning leads Mr. Dzwonkowski to urge the Supreme Court to decide that: “A judge cannot rule on a case involving anyone, any company, any group, that gave the judge money or otherwise helped the judge win his or her judgeship.”

Lots of folks will be watching next week’s oral argument and the anticipated decision later this spring with great anticipation.   Here in Pennsylvania, it’s election season, so the decision could have immediate impact.  We’ll be following the case closely.

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Dec 11 2008

Is There a Better Way for West Virginia?

Lots of folks in West Virginia are talking about changing the way judges are selected. This is no surprise, after expensive, divisive elections and an electoral history that has brought a tremendously important case about campaign contributions to the United States Supreme Court.  Here’s what they’re talking about.

Lincoln Walks at Midnight reports that Governor Manchin had asked the West Virginia Judicial Association to consider changing to a nonpartisan election system. Although the Executive Committee brought the issue to the membership, the body rejected the proposal.

Then, a House-Senate Committee took testimony over the weekend about how to improve the selection process.  The Charleston Gazette reports that Senator John Yoder urged the adoption of a Merit Selection system:

“Nobody has ever argued that merit selection takes politics out of the selection of judges,” Yoder told an interim committee studying alternatives to partisan election of judges.

“What it does take out is the money – the appearance that justice is for sale,” he said.

Yoder said merit selection removes the perception of judicial bias, based on which lawyers and special interests contribute to their campaigns.

“There’s a perception you can tell the outcome of a case by who the attorneys are that have contributed to the judge,” he said.

The money problem was a shared concern, even of those who urged different reforms.  The point is, the money problem in judicial elections is getting worse.  Merit Selection offers the best solution by taking judges out of the fundraising business.

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Nov 19 2008

What They’re Saying in West Virginia

Published by under Judges,News,Opinion

The fact that the United States Supreme Court has decided to hear Caperton v. Massey — the West Virginia case involving campaign contributors and recusal of judges — is of course big news to lawyers and judges.  But it’s also important to members of the public who come to the courts to settle disputes.  Here’s what Hugh Caperton, plaintiff in the case, told The Charleston Gazette about the issue of campaign contributions:

“In this country, money has begun to pervade and permeate every election that’s held. And I agree that it’s the right of each citizen to support their candidate. But you can’t have Supreme Court seats being propped up by millions of dollars from one individual or group,” he said. “It makes the appearance of impropriety so great that normal citizens like myself lose faith in the judicial system.”

Our justice system is based on the public’s trust and confidence that the judges will follow the law and apply it to the facts presented.  When people worry that campaign contributions might influence a judge’s decisions, that confidence is undermined.  We can’t afford that.

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