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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

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 http://www.facebook.com/CourtReform).  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.

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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 Harrisburg Patriot-News featured an op-ed by PMC’s Lynn Marks and Shira Goodman this weekend. The op-ed opens with a question about the money spent in the election — millions by the candidates and perhaps millions more by political parties and other third-party special interests:

Only 20 percent of registered voters voted for a Supreme Court candidate. So, what did that money buy? Diminishing public confidence in our court system.

Marks and Goodman go on to explain the problems caused by the role of money in the electoral process and the inability of the recusal system to address these problems.

Marks and Goodman conclude, “The solution to the problem of money and judges is to get money out of the judicial selection system. The only way to do that effectively is to change the way we pick appellate judges.”  They explain why other proposals, such as campaign finance reform or public financing, would not be as effective “because both maintain the role of money in the selection process.”

The real solution is Merit Selection.  “With a merit selection system, appellate court candidates don’t have to raise money from those who are likely to appear before them. This results in public confidence in the process and trust that the scales of justice are in balance. And, that, in the words of that Mastercard commercial, “is priceless.””

An editorial in the  Wisconsin State Journal urges the adoption of Merit Selection in the face of increasing concerns about the role of money in judicial elections and the pressure on judges to state their opinions during judicial campaigns.  In fact, there is now a pending recusal motion based on a Supreme Court justice’s campaign trail statements about sentencing decisions and procedural issues in criminal cases. The editorial notes:

[The recusal] request points to the serious consequences when judicial elections become charged with politics and outside money, as Wisconsin’s have. Justices who are supposed to be accountable for upholding the law instead become accountable for campaign promises.
More ominously, justices risk becoming accountable to the interests who bankroll their multi-million-dollar campaigns.

The stakes are described by the question: Is Wisconsin getting the best impartial justice it can provide, or is it getting the most partial justice that well-financed, partisan interests can buy?

Studies across the nation reveal decreasing public confidence in the courts, in large part due to the role of money in judicial campaigns.  It is crucial to maintain the public trust in the fairness and impartiality of our courts.  Without that trust, the foundation of our system is undermined.

Why continue to use a system of judicial selection that results in a lack of public confidence in our judges and courts?  The Wisconsin State Journal has a good solution for Wisconsin and Pennsylvania: “Reform is required. Merit selection is the right choice.”

The Southeast Texas Record reports that a judge in Texas is being asked to recuse because of campaign contributions made to him by lawyers representing defendants in a toxic exposure case. During a recusal hearing before a different judge (following the original judge’s denial of the recusal motion), the plaintiffs argued:

“We don’t think we can get a fair trial from Judge Floyd. . . It’s undisputable he has taken money from the (defendants’) law firm … we believe the payment is a violation of due process.”

Both parties discussed Caperton v. Massey during the recusal hearing: defendants argued that Caperton was much more “egregious”, while plaintiffs noted “the case shows a growing ‘national concern’ to whether judges should preside over any case where donated money turns out to be the focal point.”

Which all raises the question: why are states like Texas and Pennsylvania still choosing judges in a way that requires fundraising from lawyers and parties that later appear in court?

PMC’s letter to the editor in response to the Philadelphia Inquirer’s editorial on Caperton v. Massey identifies Merit Selection as the way to get judges out of the fundraising business.  In the letter, PMC argues that rules requiring recusal in cases involving campaign contributions are a good first step, but more is needed to address the poisonous role of money in judicial selection:

It’s time to get judges out of the fund-raising business altogether. Today, when most of those surveyed are worried about the impact of contributions on how judges rule, we need a system that takes money far away from the scales of justice. When you go to court, you want a judge who considers the facts and the law; you shouldn’t be worrying about whether your lawyer or the opposing side gave a campaign contribution. Replacing elections for appellate court judges with merit selection is the way to eliminate this concern.

Our friends at Gavel Grab offer a complete analysis of the Caperton v. Massey argument, including commentary from PMC, the League of Women Voters and other amici.  Gavel Grab quotes PMC Associate Director Shira Goodman:

“Pennsylvania, which elects all judges in partisan elections, 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 the people have. The scales of justice need to be rebalanced. A strong decision by the Supreme Court requiring recusal in at least some cases will help to do that.”

Also posted on Gavel Grab is an email Justice At Stake sent to its Partners (including PMC) about the case, concluding with this encouragement:

We now must wait until the Supreme Court rules, but the last few months already represent an extraordinary victory in educating the public on threats to our courts, and in commanding media attention on the critical issue of protecting impartial courts from special-interest money.

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.

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.