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December, 2006


Are Judges Violating the Law By Hearing Cases Tainted by Campaign Contributions?
By Barbara A. Kauffman

Bert Brandenburg, Executive Director of the Justice at Stake Campaign, told over 300 state court leaders assembled at a California Judicial Council Summit in San Francisco November 1-3, 2006 that opinion polls indicate that 3 out of 4 voters and 1 out of 4 judges believe that campaign contributions influence judicial decisions.
An American Judicature Society handout entitled "Is Justice a Gamble?" provided to participants at the Summit included statements that "According to a recent national survey, 78 percent of Americans believe that judges' decisions are influenced by campaign contributions" and that "One of the most-cited reasons for public distrust of the judiciary is a perception of judges as politicians who are beholden to campaign contributors."

Speakers at the Summit included, among others, retired US Supreme Court Justice Sandra Day O'Connor. O'Connor expressed concern that the judicial election process has changed with the influx of special interest group money and noted that while our country has always had "periods of unhappiness with judges", the unhappiness with judges today is at a "very intense level."

The Justice at Stake poll statistics mentioned by Brandenburg are quoted by O'Connor in her concurring opinion rendered in a 2002 US Supreme Court case, namely Republican Party of Minnesota v. White, 536 U.S.765.

Justice at Stake poll statistics regarding the belief of Americans and judges that campaign contributions influence judges' courtroom decisions are also mentioned in the November 2006 California Administrative Office of the Courts publication entitled "State Judicial Elections, The Politicization of America's Courts" which was passed out to participants at the November Judicial Summit.

Brandenburg's statistics are apparently not news to the Judicial Council of California. According to the September-October 2000 issue of Court News, available through the California Administrative Office of the Court's website:

--"In 1995 a committee appointed by the Chief Justice of the Ohio Supreme Court found that 9 out of 10 Ohioans believed that judicial decisions were influenced by contributions to political campaigns."

--"A 1997 Arizona poll found that 84 percent of those polled disagreed with the following statement: "It is appropriate for judges to accept campaign contributions from persons and corporations who may later be litigants in court."

--"In 1998 the Pennsylvania Supreme court issued a report that found that 88 percent of Pennsylvania voters thought judge's courtroom decisions were influenced at least some of the time by campaign contributions."

Further, the American Bar Association raised the problem posed by campaign contributions in a 1997 report by its Commission on Separation of Powers and Judicial Independence. The report is entitled "An Independent Judiciary: A Report on Separation of Powers and Judicial Independence" and includes the following statement:

"A number of witnesses were concerned that raising money to finance judicial elections posed an apparent, if not a real threat to judicial independence. Chief Justice Thomas Moyer of the Ohio Supreme Court explained the problem:

`One of the defects in the state systems... is that for those of us who live in states where the judges are still elected in regular elections, there is the perception - no matter how. . . earnestly we assure the people that funds coming into our campaign don't influence our decisions, we're talking against human nature. I mean, if you can identify an interest group. . . that has contributed "x" number of dollars to a judicial candidate, the presumption by most people is that has some influence on the judge's conduct.'"

Our own California Supreme Court Chief Justice Ron George cited the above 1997 ABA report in his January 26, 2005 lecture at New York University School of Law, published in November 2005 New York University Law Review (Volume 80, Number 5, the "Brennan Lecture" on Challenges Facing an Independent Judiciary.)

The problems posed by the above polls and reports are potentially enormous and far-reaching, particularly in small counties where attorneys and actual or potential litigants routinely make contributions to judges before whom they may appear.

Judicial conduct of California state judges is governed by the California Code of Judicial Ethics. Under the Code, it is legal for California state judges to accept campaign contributions and even to solicit campaign contributions from attorneys who appear before them.

Canon 5 of the Code provides that "A judge or judicial candidate shall refrain from inappropriate political activity", but the Advisory Committee Commentary regarding Canon 5 states that "In judicial elections, judges are neither required to shield themselves from campaign contributions nor are they prohibited from soliciting contributions from anyone including attorneys. Nevertheless, there are necessary limits on judges facing election if the appearance of impropriety is to be avoided."

So can a judge who has received a campaign contribution from someone involved in a case continue to hear the case without a) disclosing the contribution and b) obtaining a valid waiver of disqualification signed by the parties and their attorneys and filed in the record?

Canon 2 of the California Code of Judicial Ethics provides that "A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities." The Advisory Committee Commentary regarding Canon 2 provides that "the test for the appearance of impropriety is whether a person aware of the facts might reasonably entertain a doubt that the judge would be able to act with integrity, impartiality, and competence."

Canon 3 of the Code provides that "A judge shall perform the duties of judicial office impartially and diligently." Subsection E(1) of Canon 3 provides that "A judge shall disqualify himself or herself in any proceeding in which disqualification is required by law" ("law" is defined as including court rules as well as statutes, constitutional provisions, and decisional law.) Subsection E(2) of Canon 3 provides that "in all trial court proceedings, a judge shall disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no actual basis for disqualification."

California Code of Civil Procedure section 170.1 (a)(6)(A)(iii) provides that a judge shall be disqualified from hearing a matter if "a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial."

Simply put, a judge may accept and solicit campaign contributions.

The question is, may a judge hear a case involving someone who has made campaign contributions to the judge?

The test is an objective one: Would a person aware that a campaign contribution had been made to the judge by someone involved in the case reasonably entertain a doubt that the judge would be able to be impartial?

The answer, gleaned from the polls and reports mentioned above, would appear to be a resounding "yes."

It would therefore appear that the judge in question must a) disclose the contribution at the outset of the case; and b) disqualify himself or herself if any party doubts the judge's ability to be impartial unless i) the amount of the contribution or the relationship of the contributor to the judge or litigation is so minimal as to make such doubt unreasonable; or ii) the parties and attorneys execute and file a valid waiver pursuant to California Code of Civil Procedure section 170.3(b).

Unfortunately, judges often don't volunteer information about campaign contributions and other financial ties a judge may have to a party, litigant or attorney. Depending on the circumstances of the case, it may therefore be prudent to ask the judge about such ties at the outset of a case, and/or investigate the matter outside of court. A judge's campaign and financial disclosure information is available to the public through the governmental election and/or court clerk's office. A person facing litigation might want to discuss these issues with legal counsel to determine if a disqualification request is warranted.

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