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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.

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.

The New York Times reported this Saturday that the United States Supreme Court is nearing a decision whether to grant certiorari in Caperton v. Massey.  The West Virginia case, which we have covered before, “turns largely on whether millions of dollars in campaign support from an interested party creates an appearance of impropriety so strong that recusal is required.”  Gavel Grab and Slate offer good analyses of the questions raised by this case.

If the Supreme Court decides to hear Caperton, it could determine when a judge would have to remove him or herself from a case in which a campaign contributor is a party.  Many people question the impartiality of judges hearing cases involving contributors to their own campaigns.

‘If the public believes that judges can be bought,’ said Keith R. Fisher, a lawyer for the bar association [one of several groups that have urged the Supreme Court to hear the case], ‘that is really poisonous and undermines public confidence in an independent judiciary.’

How much campaign money does it take to give the impression that justice is for sale?  When does the appearance of impropriety become so great that a judge must step aside?  Merit Selection eliminates these questions because it allows judges to focus on the law, not on expensive political campaigns.

Joseph Russo, currently a Common Please Court judge in Ohio and candidate for the Ohio Supreme Court, is worried about the perceptions created when judicial candidates take large contributions from parties that later appear before them in court.  The Cleveland Plain Dealer reports that Russo has proposed a mandatory recusal process for judges and justices in cases involving campaign donors.

Under Russo’s proposal, a Supreme Court justice would be required to recuse in a case involving an entity that donated more than $10,000 in the aggregate to his or her campaigns during the past seven years.  Lower court judges would be subject to a similar process, though the dollar amounts triggering recusal would be lower.  Russo explained his reasoning in making the proposal:

‘The concern I have is that groups of people giving you money, a law firm or a corporation, and now they want to come before you in court to hear their case. . . .  My plan would immediately wipe out that perception about justices voting with the money.’

Russo’s opponent, incumbent incumbent Justice Maureen O’Connor,  opposes the measure, and notes that although other states have considered similar mandatory recusal programs, none has adopted one.  Read more about the campaign and the candidates on Gavel Grab.

O’Connor’s observation raises an interesting question.  If recusal is not the solution, maybe there’s a better way to deal with the problem of campaign contributions and the perceptions they create.  We think the answer is getting judges out of the fundraising business altogether by adopting a Merit Selection system for the appellate courts.

This past weekend, the Pittsburgh Post-Gazette article addressed the concerns about the effect of large  contributions to judicial campaigns and the public perception that justice is for sale.  The context was the ongoing case involving West Virginina judicial elections, Caperton v. Massey,

The case, which we have covered before, revolves around whether the Due Process Clause of the Fourteenth Amendment was violated by a judge’s refusal to recuse himself from a case involving a major campaign contributor.  It illustrates the problems with the recusal system, which relies on judges to voluntarily step aside when their impartiality might reasonably be questioned.  Different judges interpret the recusal guidelines differently: some feel that only evidence of bias should disqualify a judge, while others believe that “the mere appearance of impropriety, regardless of whether it is supported by fact, can compromise the public confidence in the courts.”  (Gavel Grab has more about recusal and Caperton v. Massey.)

The article offers a thorough history of the case, a survey of how much it costs to run a judicial campaign in various states and a primer on past recusal cases.  Explaining that the parties are waiting to hear whether the United States Supreme Court will take the case, the article quotes Mr. Fawcett, the lawyer representing Mr. Caperton: “As soon as people start to think there’s a possibility justices can be affected by campaign contributions, quickly you’re at a point where the pillars of the system can collapse.”

We will be watching the case and keeping you posted on its status.  But this is another good reminder of what electing appellate judges in expensive partisan campaigns just doesn’t make sense.

A case in Northampton County points out another side effect that comes from electing judges. Sometimes, the electoral process itself will result in an entire court being unable to preside over a case because of potential conflicts.

The Allentown Morning Call reports that Northhampton County President Judge F. P. Kimberly McFadden issued an order recusing all county judges from presiding over a case involving Thomas E. Severson, a political consultant who has worked on several local judicial campaigns. Judge McFadden also requested that the Administrative Office of Pennsylvania Courts (AOPC) appoint an out-of-county judge to preside over the case.

Such requests are not unheard of. They’re made when, for some reason, all of the judges in a county may have potential conflicts of interest in a particular case. The ethical thing for judges to do in that situation is to allow another judge to take over. But we find it interesting that in this case, it’s the litigant’s involvement in the judicial election process that has created the conflict.

A similar situation arose last year in Philadelphia when President Judge Darnell Jones recused the entire Philadelphia Court of Common Pleas from a case involving a challenge to Congressman Bob Brady’s filings for his mayoral campaign. The reasoning here was that Bob Brady is very involved in local judicial elections and therefore an appearance of conflict could arise in any sitting judge — whether Brady supported that judge’s election or not — presiding.

But what about others involved in the election process — like campaign donors?  Should there be rules requiring recusal when a campaign donor is involved as a lawyer or party?  Currently there are no rules that explicitly require that, but as we posted here, a case has been filed with the United States Supreme Court raising this question as it relates to significant campaign contributors.

One way to solve the problem is to take money and campaigning out of the system of picking judges.  We can do this for the appellate courts by switching to Merit Selection.

A petition for certiorari has been filed in Caperton v. Massey – the case arising out of the mess of recent West Virginia judicial election campaigns. We’ve written about the situation stemming from the refusal of a justice to recuse in a case involving a significant campaign contributor. The case has made it through the West Virginia courts, and a high-powered legal team led by former Solicitor General Ted Olsen is appealing to the U.S. Supreme Court. The main question presented for the Court’s consideration is whether a judge’s failure to recuse in a case involving a major campaign contributor violates the Due Process Clause of the Fourteenth Amendment.

Several amicus briefs have been filed in support of the petition, including some filed by our national partners, the Brennan Center for Justice, the Committee for Economic Development and the American Bar Association. Gavel Grab has a post about the various briefs here.

This case presents an important opportunity for the high court to set standards for when judges should recuse in cases involving major campaign donors, and we’re eager to see what happens. Of course, we think the whole problem could be avoided by getting judges out of the fundraising business through the adoption of Merit Selection.

The problems caused in West Virginia by one company’s contributions to judicial election campaigns continue to plague the state. Now, even though one of the Justices involved lost his reelection bid, there is an effort to have a case involving that contributor reexamined, with a focus on whether another Justice should have recused from the case. Theodore B. Olson, former solicitor general of the United States and private counsel to Ronald Reagan and George W. Bush, will spearhead efforts to get the issue before the United States Supreme Court.

In a press release announcing his involvement with the case, Mr. Olson succinctly sums up the crisis of public confidence created by partisan judicial elections:

The improper appearance created by money in judicial elections is one of the most important issues facing our judicial system today. A line needs to be drawn somewhere to prevent a judge from hearing cases involving a person who has made massive campaign contributions to benefit the judge.

We think the best solution to the problem is to get appellate judges out of the fundraising business altogether. The way to do this is Merit Selection.