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State Judicial Elections
By James Sample – 03/22/08
(cross posted from The Wall Street Journal):
Certain American values transcend partisan divisions. One is that money should not influence the courts. But with record sums pouring into judicial elections, the ideal of due process is giving way to a perception of pay-to-play justice.
This is not a matter of red versus blue. Seventy-six percent of Americans believe that campaign contributions influence judicial decisions, according to a 2001-2002 survey by Greenberg Quinlan Rosner Research and American Viewpoint; 46% of state court judges agree, according to a written survey by the same organizations. Separate recent empirical studies in the New York Times and the Tulane Law Review support the proposition that contributions not only correlate with decisions, but alter them.
John Grisham's latest bestseller, "The Appeal," is a shadowy tale of a chemical company that buys a favorable legal ruling by funding the election of the judge who makes it. Farfetched? Not according to West Virginia Supreme Court Justice Larry Starcher. In a scathing opinion last month, he decried a "cancer" of moneyed influence in his court, asserting that "John Grisham got it right when he said that he simply had to read The Charleston Gazette to get an idea for his next novel."
Read the full Wall Street Journal piece here.
Tags: Democracy, Campaign Finance Reform, Fair Courts, Independence & Accountability, Judicial Advertising, State Judicial Elections
By James Sample – 01/25/08
The Supreme Court's reversal of the lower court decisions in
Lopez Torres v. New York State Board of Elections was a major victory for the defenders of New York's judicial selection status quo. As counsel to the plaintiffs, the Brennan Center, along with all those
observers who
understand the
seamy realities of how New York's system actually works in practice, was certainly disappointed by the decision.
That said, as we indicated in an op-ed in Tuesday's New York Law Journal, the First Amendment claim rejected by the Supreme Court is just one chapter in an 87-year story. The battle to end the Byzantine process by which New York's trial court judgeships are determined, will go on both legislatively and in the courts.
Today, a wonderful and deeply personal profile story in the New York Times looks at the remarkable woman and jurist behind the case that bears her name. The profile examines the courage of our lead plaintiff, whose story serves as a valuable reminder of why the fight for a truly accessible selection process is not only worth fighting, but is an essential component the larger struggle for truly fair and independent courts.
Tags: Democracy, Fair Courts, State Judicial Elections
By James Sample – 01/22/08
It is not every day that a U.S. Supreme Court justice writes a separate one-paragraph opinion merely for the purpose of pointing out that, as a matter of policy, a state law is "stupid." That is remarkable enough, but when the law in question governs the third branch of government in a state that -- were it a nation -- would be the world's 11th largest economy, such bluntness should not be ignored.
To that end, Rich Samp of the conservative Washington Legal Foundation and I have jointly written this op-ed to for the New York Law Journal.
You can read the entire piece here.
Tags: Democracy, Fair Courts, Diversity on the Bench, Independence & Accountability, State Judicial Elections
By James Sample – 12/13/07
*Cross-posted from The Huffington Post
The sun may start rising in the west over Wisconsin. Justice Annette Ziegler has recused herself from a case.
As detailed in this space last week, Ziegler has ruled on cases involving a bank that her husband helped to run; has ruled on cases involving a company in which she owned $50,000 in stock; and recently even sat on a case
involving an organization that spent $2 million -- more than the total
expenditures of her entire campaign -- to help her get elected.
In sum, whatever attributes Ziegler might have previously demonstrated, an Aristotelian radar
for the rules of ethics was not one of them. The Wisconsin Ethics
Board, which reached a settlement with Ziegler that included
substantial fines, noticed. Editorial boards around the state noticed. A special three-judge panel
convened to address her violations of the Code of Judicial Conduct and
Wisconsin ethics rules applicable to all public officials, noticed. The
Governor of Wisconsin, who called a special legislative session to address the problem of justice-for-sale noticed. Bloggers noticed. Governmental reform groups noticed.
This week, the Wisconsin Supreme Court itself (yes, including Justice
Ziegler), clearly having noticed, even sent a truly remarkable letter
to Governor Doyle unanimously endorsing the concept of judicial public financing.
Nearly everyone in Wisconsin, save one person, it seemed, had noticed.
Yet now, maybe, finally, possibly, could-it-be true, and could-it-be-because-of-all-of-the above, Justice Ziegler has noticed?
The details of yesterday's recusal are here.
If you believe in due process, feel free to scream Eureka. And have
little doubt that interest groups everywhere are mortified by this rare
failure of a quid to produce even the appearance of a quo. But also
realize this: so far it seems that Justice Ziegler's newfound
enlightenment does not extend to mathematics.
Yesterday's decision to recuse, in light of $17,000 in combined
contributions from groups representing home builders and real estate
agents, stands strikingly at odds with her continued participation in
the case involving the Wisconsin Manufacturers & Commerce, who
independently spent $2 million to support her election.
Give a candidate a choice between $2 million in supportive
independent expenditures (a choice they technically could not make) and
$17,000 in direct contributions, and no candidate in their right mind
would choose the latter. So if $17,000 appropriately triggers recusal .
. . hmm, I suspect all of Wisconsin sees the problem.
Maybe soon, Justice Ziegler will too.
Tags: Democracy, Fair Courts, Independence & Accountability, State Judicial Elections
By James Sample – 12/05/07
*Cross-posted from The Huffington Post
Slate's Dahlia Lithwick, writing at GavelGrab,
cogently points out that today's Supreme Court oral arguments in the
latest rounds of Guantanamo litigation represent the kind of historical
marker where it's worth taking note because, in her words, "you're
going to want to tell your great grandkids about what happened to the
rule of law in America back in the day."
She's right. As Jonathan Hafetz makes clear in "Ten Things You Should Know About Habeas Corpus"
there can scarcely be a more egregious violation of due process than
detention without review. But while far less fundamental than the
survival of habeas corpus in the form of real hearings, before real
courts, with real procedural protections, America's state courts are
facing a due process crisis of their own.
In short, the influence of big money in our nation's state courts is
nearing the point where, well, "you're going to want to tell your great
grandkids about what happened to the rule of law in America back in the
day."
While the outside threats to judicial independence are serious and metastasizing,
the unfortunate -- and for many, uncomfortable -- fact is that the
de-legitimizing of America's courts is at least partly an inside job.
When judges fail to police themselves, and when the judiciary fails
to adequately police the judges who fail to police themselves, we all
lose. For the most recent case in point, we turn to a blizzard of news
amidst last week's blizzards in Wisconsin.
Wisconsin serves as the latest reminder that bias and/or the appearance of bias is not limited to duck-hunting.
Sometimes, as in the case of now-Wisconsin Supreme Court Justice,
Annette Ziegler, it involves ruling on cases involving a bank that your
husband helps to run, or ruling on cases involving a company in which you own $50,0000 in stock, or, one week ago, sitting on a case
involving an organization that spent $2 million -- more than the total
expenditures of your entire campaign -- to help get you elected. The
last of these instances led to a flurry of editorials in Wisconsin
urging her to step down from the case, and even from the bench.
Justice Ziegler is merely one acute illustration of an increasingly
chronic problem. Indeed, for the last few years, now-Illinois Supreme
Court Justice Lloyd Karmeier was Exhibit A
for the failure of the rules of self-policed judicial disqualification
to keep pace with a rising tide of money in judicial elections. Alas,
it appears that his judicial colleague to the north, Justice Ziegler,
is on pace to give him a run for the, um, money.
In almost every state in the country, including Wisconsin, the
general standard on recusal closely mirrors that of the American Bar
Association -- namely that a "judge shall disqualify himself or herself
in a proceeding in which the judge's impartiality might reasonably be
questioned."
For political candidates, money is oxygen. And in a $5 million race, $2 million buys a lot of breathing.
As detailed in the press stories, Wisconsin Manufacturers &
Commerce spent more than $2 million last spring supporting Justice
Ziegler. Now, it has filed a brief and helped to finance the appeal of
a case that could trigger an estimated $350 million in tax refunds to
businesses. Justice Ziegler has declined to recuse herself. So let's
take those words for a test drive: might it be reasonable to question Justice Ziegler's impartiality under the circumstances?
Well, is habeas corpus a fundamental right? Not only are the answers
to those questions the same, they are grounded in the same fundamental
right -- due process.
The fact of the matter is that, whatever one's view of state
judicial elections, they are not going away any time soon. What to do?
Public financing, which makes eminent sense in the legislative and executive contexts,
makes even more sense in the non-constituent-based judicial branch.
Recognizing this, in recent years North Carolina and New Mexico have
adopted judicial public financing as a way to get ahead of the
special-interest tidal wave.
For lawyers, state courts may lack the sex appeal of their federal
counterparts. But sexy or not, they are also where the vast majority of
American justice occurs. In elective state judiciaries, short of public
financing, strengthening the enforcement of recusal rules is critically
important.
For the wonky few, the Brennan Center's initial recommendations in that regard are available here.
But for the rest of us, standing by while scenarios like Justice
Ziegler's become the rule rather than the exception is not a serious
option. Not unless you actually want "to tell your great grandkids
about what happened to the rule of law in America back in the day."
Tags: Democracy, Fair Courts, Independence & Accountability, State Judicial Elections
By James Sample – 03/06/06
*Cross-posted from Slate
In 1920s Chicago, it was widely known that Al Capone and his
associates had bribed so many public officials that "justice" was
available only to the highest bidder. Even when justice was genuinely
served, a perception of pervasive corruption undermined public
confidence that the rule of law prevailed. Today, a similar confidence
problem is brewing in courts around the country. And in Illinois, the
appearance of South Side Chicago "justice" did not go away. It just
moved to Springfield.
Today, the U.S. Supreme Court declined to hear the case of Avery v. State Farm Automobile Ins. Co., an appeal out of the Illinois Supreme Court. Avery
is the fallout from the most expensive state judicial campaign in U.S.
history: the 2004 race for a seat on the Illinois Supreme Court. In
that race, Illinois Appellate Judge Gordon Maag and his opponent,
then-Circuit Judge Lloyd Karmeier, combined to raise $9.3 million in political contributions—nearly double the previous national record for any state judicial election.
The
context of that campaign, and the events that followed the election,
demonstrate the tension between expensive judicial elections and public
confidence in our courts. Longtime Supreme Court analyst Lyle Denniston
neatly summarized the ethics component of Avery
as follows: "Should an elected judge, who accepts large campaign
donations, sit on a case that directly affects the financial or
business interests of the donors and their associates? Put as an
ethical question, the answer would seem to be obvious: No." Sometimes,
however, ethics alone do not suffice to protect constitutional rights.
By passing on Avery, the Supreme Court missed a
golden opportunity to clarify the protections required when politics
and constitutional rights collide in the courtroom.
In May 2003, the Supreme Court of Illinois heard oral arguments in Avery.
The dispute involved a class action against State Farm on behalf of 4.7
million policyholders in 48 states. The appeal was not decided until
after the November 2004 election. In other words, the appeal was pending before the Supreme Court of Illinois, and had been for over a year, by the time of the 2004 campaign. The stakes in Avery
were hardly trivial. State Farm's appeal sought to overturn a $1
billion lower-court verdict, including $456 million in contractual
damages.
Illinois lacks campaign contribution limits. As a
result, the $9.3 million raised by Karmeier and Maag did not represent
hundreds of thousands of $20 checks from Aunt Gladys and Uncle Merle.
Rather, the sum largely represented contributions from frequent
litigants in the Illinois courts. And State Farm more than lived up to
its slogan. "Like a good neighbor" the company was indeed "there" for
Judge Karmeier, who received more than $350,000 in direct contributions
from its employees, lawyers, and others directly involved with the
company and/or the case. Karmeier got an additional $1 million from
larger groups of which State Farm was a member or to which it
contributed. As is often the case, he won both the fund-raising battle
and the election.
Although Karmeier himself described the fund
raising as "obscene," his concern for appearances waned almost
immediately upon election. Once seated on the Illinois high court, he
refused to recuse himself from the Avery appeal. He then cast
the deciding vote on the breach of contract claims, overturning that
verdict against State Farm. The public, not to mention the opposing
litigants, could be forgiven for questioning whether justice was truly
served.
Was Justice Karmeier's decision legitimate,
well-reasoned, unbiased? Very possibly yes, but we will never know.
Overshadowing the merits of his decision is a single stark fact:
Without Karmeier's vote, State Farm would have faced further
proceedings on claims valued at up to $456 million. That's either a
coincidence or an impressive rate of return on State Farm's investment.
Which of the two it was is almost irrelevant—especially where a
correlation between a contributor and a decision can't be known. In
either case, the cost to the courts themselves is immeasurable.
Thirty-eight states, including Illinois, elect their supreme courts. Recent studies
of judicial elections indicate that the trend toward high levels of
judicial-campaign fund raising in the states began in the late 1990s.
During the 1999–2000 cycle, state supreme court candidates raised $45.6 million—61
percent more than just two years earlier, and more than double the
amount raised in 1994. Nine states broke aggregate candidate
fund-raising records in the 2003–04 election cycle. This explosion in
fund raising is not a coincidence. In 2003-04, 35 of 43 high court
races were won by the candidate who raised the most funds; that's a
success rate of 81 percent.
The high price of winning, however,
falls hard on the public. Evidence shows a steady decline in public
confidence in fair courts. Polls
show that 76 percent of Americans believe that campaign contributions
have at least some impact on judges' decisions in the courtroom. Far
more worrisome? The fact that nationally, judges now share this view:
According to a 2002 written survey of 2,428 state lower, appellate, and supreme court judges, nearly half the judges surveyed themselves believe that campaign contributions influence judicial decisions. Not even the judges believe their colleagues consist only of "Untouchables."
The
statistics illustrate that the public intuitively knows what
constitutional theorists strive to prove—that judicial independence
matters. Elected legislators are expected to serve
interest-group constituencies. They are expected to build coalitions;
to promise outcomes; and to be held accountable for those promises. The
representative branches function best when officials are lobbied by
contributors and non-contributors alike. But judges—including elected
judges—are different. They function best when "lobbied" not at all, or
only within the adversarial process and on the basis of law. Judges are
accountable for the fundamental American promise of fair trials before
impartial arbiters. Therein lies the tragic consequence of money's
increasing influence in judicial elections. In the long term, we all suffer—including interest groups—when any decision reinforces suspicions that the biggest donor, and not the best case, wins.
The
system cannot be left to police itself. First, it's unreasonable to
expect lawyers to police judges: Recusal motions are risky propositions
for litigants who can ill-afford to antagonize judges before whom they
will appear. Second, it's wrong to expect judges to fully police
themselves: According to the ABA's Model Code of Judicial Conduct,
a "judge shall disqualify himself or herself in a proceeding in which
the judge's impartiality might reasonably be questioned." The Illinois
Supreme Court has the same rule. Is it a stretch to assert that Justice Karmeier's impartiality "might reasonably" have been questioned in Avery?
Of course not. But Karmeier got to make that decision in his own case,
as is the standard practice. In most instances it's effective.
Litigants deserve due process more than "most" of the time.
In a 2002 concurrence in Republican Party of Minnesota v. White,
Justice Anthony Kennedy wrote that maintaining the integrity of the
judiciary and respect for its judgments is a vital "state interest of
the highest order." States with judicial elections employ various
mechanisms to reduce or sever the link between contributors and judges.
States attempt to reduce the influence of money through publicly
financed judicial campaigns, and through campaign-contribution limits
that prevent large donations from individuals and organizations. In
varying degrees, states have adopted canons of judicial conduct
intended to place a buffer between judges and traditional interest
group politics. No measures are panaceas, however, and as the role of
money increases in judicial elections, the backup safeguard of
mandatory recusal in any case involving a real or perceived conflict of
interest may soon be necessary to preserve the respect to which Justice
Kennedy refers.
Today, the Supreme Court passed on the chance
to give states guidance as to when judicial recusal might be
constitutionally required. States do not have the corresponding luxury
of ignoring that question. The precise contours of the optimal recusal
system are subject to honest debate and careful consideration. Still, Avery
demonstrates that objective, peer-enforced standards, applied in
extreme circumstances, should at least be part of the discussion.
Thirty states will hold supreme court elections in 2006. Although they will now lack the guidance that Supreme Court review in Avery
could have provided, they are nonetheless in a position to thwart the
corrosive influence of big money in their courtrooms. In that respect,
they have much to learn from another Illinois case from 75 years ago.
In
his 1931 trial on income tax evasion, Al Capone initially pleaded
guilty, believing he would be able to plea-bargain. When U.S. District
Court Judge James H. Wilkerson refused to cut a deal, Capone changed
his plea, and his associates attempted to bribe the jury. But, in an
extraordinary measure designed to ensure impartial justice, Wilkerson
switched juries at the last moment. Wilkerson stated:
"It is time for somebody to impress upon the defendant that it is
utterly impossible to bargain with a federal court." States around the
country must work to ensure that bargaining with elected state judges
is—and appears to be—equally impossible. More modest means of doing so
will suffice. But the appearance problem is just as real.
Tags: Democracy, Fair Courts, Independence & Accountability, State Judicial Elections
By Michael Waldman – 02/24/06
*Cross-posted from The Huffington Post
The desultory fight over Samuel Alito's nomination to the Supreme Court
didn't exactly create a "teachable moment" on the central role of
courts in our lives. But there's a sharp and growing debate in the
states over an issue just as profound for democracy: How do we pick
judges? How can we ensure they provide equal justice, rather than
merely mimicking the special interests that put them on the bench?
This issue was thrown into sharp relief in a landmark ruling in New
York recently. Last month, federal Judge John Gleeson overturned the
state's system for picking Supreme Court judges. (That's what New
Yorkers call trial court judges. Here in the Empire State, we think
big!) These jurists are picked in an arcane system that wouldn't appear
out of place in On the Waterfront. Even though there is an
election in November, voters don't really get to choose the candidates.
They're picked by local party leaders. The Brennan Center for Justice
at NYU School of Law represented a brave local judge,
Margarita Lopez Torres. She refused the corrupt Brooklyn Democratic
boss's demands that she hire an underqualified-but-highly-connected law
clerk, and was denied a place on the ballot. In her lawsuit, the
federal judge ruled that the entire state's system needed to be
overhauled, starting with fair primary elections. Meanwhile, the party
boss is headed to jail for corruption.
Real primaries where voters have a real say is a good start, and
certainly is better than boss-run courts. But we can do more. In
particular, campaign reform makes at least as much sense for judicial
races as for their congressional cousins.
A recent incident in Illinois showed the problem. A class action
suit against an auto insurance company worked its way up through the
courts. The appeals court - one level below the state Supreme Court -
ruled for plaintiffs. Soon after, a new Justice was elected to the top
court. Both sides in the case had poured funds into the race. The
candidate who got over $1 million from the defendant's employees and
its allies won. When the state's top court heard the case, the new
Justice refused to recuse himself and cast the deciding vote on a $450
million claim for the insurer. This kind of ethical morass happens all
the time, when judges are forced to raise funds from people or
interests who practice in front of them. It's especially acute in big
statewide races, where justices run in high-stakes, highly-funded
campaigns. The U.S. Supreme Court may hear this case. We weighed in to ask the justices to decide whether the Constitution's requirement for due process means a judge should refrain from hearing a case like this.
Another solution is even broader. A state as Red as North Carolina
recently enacted public financing for judicial races. Short of that,
the Supreme Court can make clear that states can set spending limits
for judgeship candidates. As you Con Law buffs will remember, Buckley
v. Valeo held it was OK to pass laws that limit corruption, but the
mandatory spending limits in federal law weren't needed and thus were
off limits. Vermont recently passed mandatory spending caps, and to no
one's surprise, the Court is deciding whether they are constitutional.
We represent a group of current and former state court judges, who urge
the Supremes to give states the chance to set mandatory caps for judicial elections.
In the end, the U.S. Supreme Court will help decide whether we can
free state courts from the same special interest influence that has led
to so much loss of trust in Congress. In what will be either sweet or
bitter irony, Justices Roberts and Alito will now help decide whether
the thousands of state judges can provide what the motto promises on
the Supreme Court building: Equal Justice Under Law.
Tags: Democracy, Campaign Finance Reform, Public Financing, Fair Courts, State Judicial Elections
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