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June 2000Futures Trading in Judicial Electionsby David B. Koch The greatest scourge an angry heaven ever inflicted upon an ungrateful and a sinning people, was an ignorant, a corrupt, or a dependent Judiciary."1 John Marshall (1830) Money in elections presents us with a tremendous challenge, a tremendous problem, and we are remiss if we do not at once address it and correct it."2 Anthony Kennedy (1999) Perception of the Judiciary A candidate calls her opponent sympathetic to big business and the financial elite. Her opponent responds that she is nothing more than a mouthpiece for trial lawyers, citing numerous financial contributions from the plaintiff's bar. A scene from a hotly contested legislative race? No. Sound bites from a contentious gubernatorial contest? Guess again. Unfortunately, this may be a preview of things to come in Washington judicial elections. Across the country and in our state, there is concern about the process by which judges are selected and the influence of campaign contributions on an independent and fair judiciary. In November 1999, PBS's investigative show Frontline addressed the adverse effects of campaign cash on America's courts in an hour-long report entitled "Justice for Sale." The report includes interviews with Supreme Court Justices Stephen Breyer and Anthony Kennedy, both of whom lament the effect of campaign contributions on the public's perception of judicial integrity.3 Indeed, a recent study reveals that while the public generally respects judges, there remains significant concern that campaign money influences judicial decision-making. In 1999, Washington's Office of the Administrator for the Courts commissioned a study to gauge public perception of state and local courts. Five hundred (500) randomly selected Washingtonians were questioned on subjects including fairness, independence and accountability. The results were compared with a larger 1999 national survey.4 Public perception of the courts is good, but not outstanding. When asked if "judges are generally honest and fair in deciding cases," 76 percent of the national respondents answered in the affirmative. In the Washington survey, that number was 73 percent. But more precise questions revealed troubling attitudes. Sixty-two (62) percent of those surveyed nationally and 59 percent of those surveyed in Washington agree that "when a person sues a corporation, the courts generally favor the corporation." Moreover, 78 percent of the national survey participants agree that "judges' decisions are influenced by political decisions" and 70 percent agree that "elected judges are influenced by having to raise campaign funds." In Washington, those numbers are 76 and 66 percent, respectively — not exactly a shining endorsement of the current system. Some are proposing drastic change — providing state-managed funding to those candidates rated "qualified" by a commission, and imposing term limits.5 The American Bar Association suggests that judicial candidates be removed from the electoral process and appointed based on "merit selection,"6 described as:
This writer does not join in the call for radical reform. The necessary changes can be made without sacrificing the right of Washington's citizens to elect their judges. But changes must be made, or we risk a further loss of confidence in what has accurately been described as the cornerstone of the rule of law — an independent and fair judiciary.8 Why All the Fuss? One need only glance at the newspaper headlines to understand that many are troubled by campaign finance. The perception is that money can buy a sympathetic ear. Many are nonetheless willing to live with the current system because, after all, when we support a president, legislator or governor, we do so because they share our views. We don't hand them a check and our vote because we expect neutrality on the issues. We demand partisanship. But the judiciary is different. It has a special role, recognized in the preamble to Washington's Code of Judicial Conduct (CJC):
In the words of Supreme Court Justice Stephen Breyer, the public's belief that campaign contributions influence judicial decisions "threatens the institution of the judiciary. To threaten the institution is to threaten the administration of justice and the protection of liberty."9 Yet, despite the judiciary's unique role in the concept of justice, judicial elections have the flavor of their executive and legislative counterparts. Part of this is inherent in the election process: candidates need to raise funds to educate the public on their credentials. But the manner in which contributions are accepted in Washington may be contributing to public skepticism. Washington's CJC attempts to mitigate the appearance of judicial favor by insulating candidates from financial sources. Candidates, including incumbent judges, for a judicial office that is filled by public election between competing candidates cannot personally solicit or accept campaign contributions. They may establish committees of responsible persons to secure and manage campaign funds and to obtain public statements of support. Such committees may solicit campaign contributions and public support from lawyers and others. Candidates must comply with all laws requiring public disclosure of campaign finances, which may require knowledge of campaign contributions. When an unsolicited contribution is delivered directly to the candidate, receipt and prompt delivery of the contribution to the appropriate campaign official is not prohibited.10 While the candidate is prohibited from directly soliciting financial support, the CJC does not prevent candidates from learning the source and amount of campaign contributions. Nor does the Washington Public Disclosure Act (Act),11 which contains specific campaign reporting requirements. The Act's purpose is to assure the public of integrity, honesty and fairness in elected officials.12 The problem, however, is that it treats judicial candidates just like candidates for any other office, and fails to acknowledge the judiciary's special role. Rather than shield judicial candidates from the source of donations, the Act permits full knowledge. Mandatory contribution reports, filed with the Public Disclosure Commission, must include "[t]he name and address of each person who has made one or more contributions during the [reporting] period, together with the money value and date of such contributions and the aggregate value of all contributions received from each such person during the campaign .…"13 The campaign must have a treasurer, but the candidate is not prohibited from serving in that capacity.14 The candidate may maintain records of contributions.15 Moreover, both the treasurer and the candidate (assuming they are not one and the same) must certify that certain reports are correct.16 If nothing else, the system breeds an appearance of impropriety, as damaging to the rule of law as actual misconduct. Under the CJC, "Judges should not allow family, social, or other relationships to influence their judicial conduct or judgment…nor should judges convey or permit others to convey the impression that they are in a special position to influence them."17 The current record-keeping and reporting provisions violate the spirit, if not the letter, of this prohibition. It is hardly surprising that to 70 percent of Washingtonians, the judicial campaign resembles the futures market. Like the futures trader who speculates today on the price of March soybeans, some campaign contributors forecast future litigation and bet on a pay-off. Supporters of the current scheme may argue that disqualification standards mitigate any appearance of impropriety. "Judges should disqualify themselves in a proceeding in which their impartiality might reasonably be questioned."18 This may suffice in some instances where a known campaign contributor is also a party in the proceeding. But in many cases, the contributor is not a party, but a person or group with implicated interests — for example, the business community, Mothers Against Drunk Driving or the Sierra Club. Where the court is presented with an issue of importance to a non-party contributor, the judge's impartiality is still open to question. Yet, the CJC would not require recusal.19 Nor would contribution limits solve the problem. Last year, the ABA amended its Model Code of Judicial Conduct to include a contribution limitation measure. The new provision provides:
Each jurisdiction is left to set its own contribution cap. This provision suffers the same deficiency found in other limitation provisions. It would not prevent a political action committee or anyone else from mobilizing individuals to submit contributions for a common cause — whether restoration of salmon habitat, health care reform or business tax reductions. And it would not prevent these individual contributions from being bundled and presented to the campaign with the candidate's full knowledge. The technically separate contributions can have a shared impact on the candidate. Or so it may appear. What's the Solution? In any state where judges are elected, there will remain those who question the integrity and independence of the judiciary. That is not unique to the electoral system; judicial appointments raise similar allegations that judges are beholden to those who appoint them. There are changes we can implement, however, to reduce public skepticism and the potential influence of campaign money. Judicial candidates should be truly insulated from the source of financial contributions. The committee system, where individuals solicit and receive contributions on behalf of candidates, should remain. But only committee members, and not candidates, should know the source of those contributions. When the ABA adopted the 1972 Model Code, upon which Washington's CJC is based, the ABA specifically envisioned shielding the identity of contributors from judicial candidates.21 Ironically, in recognizing the benefit of such a rule, the ABA looked to Washington state. The notes to the 1972 Code state that nondisclosure "has worked effectively in the state of Washington."22 Washington should return to its former practice. An amendment to Canon 7 of the CJC, with additional amendments to the Public Disclosure Act, would accomplish this goal. Colorado is a model. Its Code of Judicial Conduct provides:
Washington's CJC should contain similar language, and the Disclosure Act should prohibit judicial candidates from serving as treasurer and require that only the treasurer maintain records and certify the accuracy of campaign reports. As a concomitant feature, this system of "anonymous" donations will decrease contributions from those seeking to hedge their bets and may level the financial playing field to some degree for those unable to compete with such contributions. Of course, in a system of elected judges, the reality will remain — some qualified judicial candidates will always have vastly more financial support than other qualified candidates. But this system's greatest benefit lies in its effect on public perception. Anonymous contributions will help allay fears that judges have been purchased with big money from those with business before the court. Conclusion The problem is serious and change is needed. More than half of Washington citizens suspect that corporations are judicially favored over the individual, three-quarters believe that judges are affected by political decisions, and two-thirds think that elected judges are influenced by the need for campaign funds. The current system must be modified. We can ill afford this degree of skepticism surrounding judicial independence, the cornerstone of the rule of law. That is something we can all bet on. David Koch is an attorney with Nielsen, Broman & Associates in Seattle, where he handles state and federal appeals. He is licensed in Washington and Alaska and is a member of the United States Supreme Court Bar. Mr. Koch has appeared in more than 200 cases in the Washington appellate courts, and in 1999 was the subject of a Seattle Times profile. NOTES 1 Proceedings and Debates of the Virginia State Convention of 1829-30 at 616 (1830). 2 Frontline: Justice for Sale (PBS television broadcast, November 23, 1999). 3 For a videotape of the program, discussions regarding judicial campaign finance, and links to related websites, go to www.pbs.org/wgbh/pages/frontline/shows/justice. 4 How the Public Views the Courts; A 1999 Washington Statewide Survey Compared to a 1999 National Survey. GMA Research Corporation, Belle-vue, Washington. Survey results can be viewed at http://www.courts.wa.gov/. 5 See Reforming State Supreme Court Elections, by Todd DeGroff, Bar News, March 1999. 6 American Bar Association Report to the House of Delegates, from Ad Hoc Committee on Judicial Campaign Finance, Standing Committee on Ethics and Professional Responsibility, ABA Judicial Division, and ABA Special Committee on Judicial Independence, at 1 (1999) (reaffirming the ABA's commitment to merit selection of judges). 7 Jona Goldschmidt, Merit Selection: Current Status, Procedures and Issues, 49 U. Miami. L. Rev., 1, 2 (1994). 8 See State v. Hansen, 122 Wn.2d 712, 723, 862 P.2d 117 (1993) (Utter, J. dissenting). 9 Frontline: Justice for Sale (PBS television broadcast, November 23, 1999). 10 Code of Judicial Conduct, Canon 7(B)(2). 11 RCW Chapter 42.17. 12 RCW 42.17.010. 13 RCW 42.17.090(1)(b); see also RCW 42.17.105 (requiring special reports during a defined period preceding primaries and general elections). 14 RCW 42.17.050(1)(a). 15 RCW 42.17.080(4). 16 RCW 42.17.080(6). 17 Code of Judicial Conduct, Canon 2(B). 18 Code of Judicial Conduct, Canon 3(D). The test for disqualification is an objective one and assumes that "a reasonable person knows and understands all the relevant facts." Sherman v. State, 128 Wn.2d 164, 206, 905 P.2d 355 (1995). Although the canon uses "should," it is treated as mandatory. See State v. Carlson, 66 Wn. App. 909, 918, 833 P.2d 463 (1992), review denied, 120 Wn.2d 1022 (1993). 19 See Carlson, 66 Wn. App. at 917-18 (finding that campaign relationships are not within the purview of the disqualification provisions). 20 ABA Model Code of Judicial Conduct, Canon 5(C)(3) (1990 & supp. 1999). See Carlson, 66 Wn. App. at 917-18 (finding that campaign relationships are not within the purview of the disqualification provisions). 21 Commentary to Canon 7(B)(2), 1972 Model Code of Judicial Conduct ("Unless the candidate is required by law to file a list of his campaign contributors, their names should not be revealed to the candidate.") 22 E. Wayne Thode, Reporter's Notes to Code of Judicial Conduct 99 (1973). 23 Colorado Court Rules, Code of Judicial Conduct, Canon 7(B)(2)(e) at 331 (West 2000). |
