Thursday, June 18, 2009
A recent U.S. Supreme Court decision put the spotlight on concerns that judges could be influenced by large campaign contributions. How large is large? In the case of Caperton vs. Massey Coal Company, the chief executive of Massey contributed $3 million to the election campaign of a West Virginia candidate to the state Supreme Court. Brent Benjamin won that election and just 3 years later overturned a $50 million claim against Massey. What a deal! Three million dollars to win $50 million. In a close decision, the high court ruled that judges have to recuse themselves from cases where substantial campaign contributions create the impression of bias. But the court didn’t establish how much money is too much money.
In 39 states, including California, judges are elected. They’re supposed to be fair and impartial, impervious to bias and certainly not bought by money. But judges are human, too, and thus occasionally susceptible to influence. For example, in San Diego in the mid-1990s, three Superior Court judges were found guilty in a corruption case that found Judges Michael Greer, Dennis Adams, and James Malkus had accepted more than $100,000 in gifts from attorney Patrick Frega. Cars, cruises, dinners, furniture, vacations were all part of the booty. In return, Mr. Frega received advice and access, and he accumulated an impressive record of winning cases.
That case was not about campaign contributions and indeed California is remarkably free of successful nefarious activities by special interests to buy judicial influence through remarkably generous campaign contributions. Unfortunately, however, in other states, judicial elections are looking like races for other political office: expensive and negative. In other words, they are ripe for the Masseys and the Fregas of our world to exploit those elections for personal gain.
While California’s Supreme Court and appellate court judges are appointed, and stand for confirmation by a vote of the people every 12 years, trial court judges are elected every six years. So who contributes to those races? One report from a coalition of citizens, taxpayers, businesses, local governments, insurers, and medical organizations found that judicial candidates tend to contribute about 44 percent of the total funds to their campaigns. Next highest on the list are attorneys – mostly plaintiff attorneys and their firms. Then there are other judges, politicians, political parties, labor organizations, businesses and law enforcement. And here’s a point of interest: there’s no limit on political contributions to judicial candidates, unlike candidates for other political offices. What a temptation for those who would do no good!
And there’s another danger. Most voters know little about the judicial candidates. Their names are far down on the ballot. There’s minimum electioneering, speech-giving, and issue-discussion. So those races are, if not under the radar, not well covered by the press or highly publicized by candidates and their supporters.
In San Diego, what we generally hear is that the candidate is a lawyer, wants to be a judge and will uphold the law. But there are endorsements and there are special interests that can say anything. It takes a dedicated voter to look for the message in those endorsements. By the time the voter gets to the end of our long ballots, motivation often lags. But the San Diego County Bar Association does provide a rating on all judges running in contested races for the San Diego Superior Court. However, this is limited to four categories: well qualified, qualified, not qualified, and unable to evaluate. These ratings may mean more to attorneys than to the lay voter. Yet they represent information and that’s always good.
I am pleased to report that California isn’t sitting by and letting potential corruption proceed. Two years, California’s Chief Justice Ron George established the Commission for Impartial Courts and if you want to be impressed with the breadth and depth of the commission’s work, be sure to read the recommendations. The best part is that you have until August 10th to submit your comment on the proposal. Now that’s a huge step toward avoiding a Caperton v. Massey case in California.