January 2009: Money and State Court Elections Under Scrutiny

Washington Watch | January 2009
By Bruce Moyer

This is the column I’ve been wanting to write for years. The subject is central to the integrity of our nation’s court system, yet it has remained largely a state court issue, unlinked to federal jurisprudence.

All that changed last month, when the U.S. Supreme Court agreed to take a case that spotlights the escalating role of campaign contributions in the election of state judges, testing whether elected judges may participate in cases involving key campaign contributors. The case, Caperton v. Massey, 08- 22, tests whether campaign contributions to judicial candidates create a conflict of interest and deny due process under the Constitution to litigants because of the unavailability of a neutral adjudicator.

The growing role of money in electing state judges has finally attracted the Supreme Court’s attention—and not a moment too soon. Thirty-nine states choose either all or some of their judges by election, and campaign spending on state elections is escalating rapidly. This year, candidates in state Supreme Court election campaigns alone spent $32 million—and that number does not count the amount spent on hundreds, perhaps thousands, of other state judicial elections in which money is spent.

Retired Supreme Court Justice Sandra Day O’Connor has criticized the role of money in state judicial elections: "There is too much special interest money and influence in state court elections," O’Connor said recently. "It endangers the public’s faith in the justice system. If courts are going to stay impartial, leaders in every state need to get moving on reforms."

Historically, the U.S. Supreme Court has displayed a reluctance to take cases involving judicial ethics, even though the state system is far less regulated than the federal courts. Unlike federal judges, who must disqualify themselves from any case in which they have the slightest personal or financial interest, the states have no criteria for disqualifying judges, and, in most places, the judges decide on their own whether to recuse themselves.

The case before the U.S. Supreme Court comes from West Virginia, where a justice on the state Supreme Court, Hon. Brent Benjamin, was elected to the bench with the assistance of a large campaign donation from Don Blankenship, the chief executive officer of the Massey Coal Company. Blankenship was the largest backer in Justice Benjamin’s election campaign, contributing $3 million and raising at least a half-million dollars more—60 percent of Benjamin’s total campaign funds.

At the time, the Massey Coal Company had been successfully sued for fraud by Harman Mining Company and its founder, Hugh Caperton, and ordered to pay $50 million in damages. After the election, Massey Coal appealed that verdict to the state Supreme Court, where Justice Benjamin twice refused to disqualify himself and twice was part of 3-2 majorities that threw out the verdict. Justice Benjamin has since issued a lengthy defense of his actions, pointing out that he had no financial interest in the outcome of the case and that the campaign money went to an independent group, not to his campaign.

In urging the U.S. Supreme Court not to hear the case, lawyers for Massey said that due process required only the absence of an actual judicial conflict of interest, as when a judge has a stake in the outcome of a case. The Court, the company’s brief said, "has never adopted a ‘looks bad’ due process test."

Caperton says that Justice Benjamin’s participation in the case created an appearance of bias that was strong enough to violate Caperton’s constitutional rights. "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. It makes the appearance of impropriety so great that normal citizens like myself lose faith in the judicial system."

Former Solicitor General Theodore Olson will argue the case for Caperton, probably in March or April 2009. "The issues raised by massive campaign contributions to judges from litigants and their attorneys," Mr. Olson told the New York Times, "go to the very heart of what it means to be given a fair trial."

Reform advocates are hoping that the U.S. Supreme Court will direct state court judges to establish and abide by disqualification rules for campaign contributors. Let's hope so. That would be a good start at a corrosive problem.

Bruce Moyer is government relations counsel for the FBA.
© 2009 Bruce Moyer. All rights reserved.

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