Judicial independence in the age of runaway campaign spending: how more vigilant court action and stronger recusal statutes can reclaim the perception of an independent judiciary.

• Author: Raley, Charles R.

"I never felt so much like a hooker down by the bus station in any race I've ever been in as I did in a judicial race.... Everyone interested in contributing has very specific interests. They mean to be buying a vote."--Ohio Supreme Court Justice Paul E. Pfeifer (1)

INTRODUCTION

Justice Pfeifer's quotation illustrates a prominent dynamic in modern judicial elections: the involvement of interest groups, attorneys, and wealthy litigants who pledge substantial amounts of campaign money to judicial candidates in the hope that the candidates will later rule in their favor. (2) This aspect of judicial campaigns leads to elected judges hearing cases that involve their campaign supporters, (3) a practice that produces scenarios suggesting judicial bias. (4) Unfortunately, such scenarios are the norm in the nation's courtrooms. According to a New York Times review of campaign contributions and the outcomes of cases before the Ohio Supreme Court, (5) justices "routinely" heard cases after receiving campaign contributions from either the parties to the cases or those filing amicus briefs in support of the parties. (6) Furthermore, justices ruled in favor of their campaign contributors around 70 percent of the time and "almost never" recused themselves in these situations. (7) Moreover, at least one study has shown that state supreme court justices in many other jurisdictions have "routinely adjust[ed] their rulings to attract votes and campaign money," which suggests that the Ohio Supreme Court is not an outlier. (8)

The story of Duane Adams poignantly demonstrates the extent to which judicial independence is jeopardized by elected judges hearing cases that involve their campaign contributors. Adams was a plaintiff in a class-action lawsuit against DaimlerChrysler and Ford Motor Company for violations of Ohio's lemon law. (9) Adams leased a 1996 Dodge (10) that soon became "nothing but trouble" and made him feel unsafe. (11) DaimlerChrysler gave Adams a refund for the car, but deducted over $6,000 from the refund for mileage that Adams put on the car. (12) After an appeals court allowed the resulting lawsuit to move forward, the case went before the Ohio Supreme Court in May 2004. (13)

At that time, Justice Terrence O'Donnell was running for reelection, and, as part of that effort, DaimlerChrysler and Ford contributed a total of $1,500 to his campaign fund. (14) Furthermore, the law firms representing DaimlerChrysler and Ford chipped in $115,000 to the campaign committees of Chief Justice Thomas Moyer, Justice Maureen O'Connor, Justice Evelyn Lundberg Stratton, and Justice O'Donnell. (15) All of these donations occurred after the Supreme Court had granted review of Adams's lawsuit. (16)

Eight days after the 2004 election, Moyer, O'Connor, Lundberg Stratton, and the reelected O'Donnell (17) voted for their campaign contributors by dismissing the class action lawsuit. (18) Meanwhile, the three dissenters received campaign contributions from the plaintiffs' lawyers. (19) The result, combined with the campaign contributions, made Adams feel like the members of the majority "should be prosecuted for what I consider is taking a bribe." (20)

Adams' lawsuit and the trends described in the New York Times article create the perception that state judicial systems lack independence. (21) The public's pessimistic view of judicial independence has only intensified in the past twenty years with the explosion of fundraising and campaign spending in judicial campaigns. (22) Since public confidence is a prominent source for judicial credibility, policymakers and legal reformers must address the public's negative perception as the crux of solving the judicial independence problem. (23)

Although there are a variety of proposals to combat the perception of a judiciary biased by campaign contributions' in states with elected judges, recusal is the most effective tool. A recusal-based solution would effectively prevent judges from hearing cases that involve their campaign supporters. Furthermore, it would be constitutionally sustainable, and would attract strong support from policymakers. (24) These characteristics place recusal at a distinct advantage over other commonly-proposed solutions that are either impractical or ineffective. (25)

The law surrounding recusal, however, is extremely unsettled, leaving its potential to protect judicial independence unrealized. (26) Even the United States Supreme Court weighed in on judicial recusal in Caperton v. A.T. Massey Coal Company, (27) but did little to clarify the law. The Court found that West Virginia Supreme Court Justice Brent Benjamin violated the Due Process Clause when he failed to recuse himself after receiving $3 million in campaign contributions from the owner of the defendant corporation, rendering him objectively biased towards the defendant. (28) Although Caperton advances the cause of ensuring judicial independence in state systems through recusal, it does not create a workable standard for future cases. Furthermore, Caperton does not offer guidance on what judges should do when hearing less "exceptional" cases involving their campaign contributors. (29) Most codified recusal rules similarly fail to create cognizable requirements that prevent elected judges from hearing "unexceptional" cases involving their campaign supporters. (30)

The nebulous recusal standards articulated in Caperton and found in state statutory and ethics codes reflect our nation's failure to adequately protect judicial independence. A two-prong remedy is necessary to protect judicial impartiality: (1) more vigilant action by the Supreme Court and (2) stronger state statutes. The Court can accomplish the first prong by reading the Caperton standard expansively to include less exceptional facts. To effectuate this expansive reading, the Court should employ a presumption that, in the absence of contrary evidence showing a lack of bias on the judge's part, the existence of a substantial campaign contribution by a litigant, attorney of record, or special interest group who has filed an amicus brief in support of one party necessitates a judge's recusal. In accomplishing the second prong, states should follow Alabama and California's lead (31) and adopt laws requiring judges to recuse themselves when they hear cases involving their campaign contributors whose donations exceed a certain limit.

This Note offers a justification for the above two-prong solution to the judicial independence problem in our state courts. In doing so, this Note addresses the current legal principles surrounding judicial recusal in state systems with elected judges, the impact of judicial campaigns and fundraising on those principles, and how those principles should be changed. Part I introduces the relationship between campaign contributions and judicial decision making, the amount of fundraising present in modern judicial campaigns, and the public's perception of judicial independence. Part II then proceeds to discuss the current legal principles governing judicial recusal. This discussion focuses on three sources: the Supreme Court's recusal jurisprudence, the states' judicial ethics codes, and the states' statutory codes. Next, Part III outlines various proposals offered to address the appearance of impropriety resulting from judges hearing their campaign supporters' cases. Finally, Part IV presents the two prong recusal remedy needed to protect judicial independence. Implementing this remedy advocates that the Supreme Court read Caperton broadly, and that the states adopt recusal statutes similar to Alabama's and California's.

1. DEFINING THE PROBLEM: THE EXPLOSION OF CAMPAIGN FUNDRAISING AND THE PERCEPTION OF JUDICIAL BIAS

   Before understanding the Supreme Court's and state policymakers' response to judicial recusal, it is necessary to first discuss the dynamics of modem judicial campaigns. The states' current structure of judicial elections produces an environment that requires elected state judges to obtain contributions from interested parties and members of the bar. Such solicitation and acceptance of contributions creates a troubling situation in which elected judges hear cases that involve their contributors.

   1. Campaign Contributions and Judicial Decision Making

      The requisite threshold question in analyzing modem judicial campaigns is what relationship exists between campaign contributions and judicial decision making. Political science and legal commentary posit two primary viewpoints of this relationship: the quid-pro-quo view (32) and the ideological-matching view. (33) The quid-pro-quo view envisions the following situation. First, a judicial candidate runs for office and receives campaign contributions from individuals, members of the bar, and special interest groups. Then, the judicial candidate wins, assumes his or her role on the bench, and feels indebted to those who bankrolled his or her campaign. Finally, quid-pro-quo advocates argue, the judge decides cases involving his or her campaign contributors based on the receipt of the contributions. (34) The courts, including the United States Supreme Court, have shown a willingness to accept the quid-pro-quo view of the relationship between campaign contributions and judicial decision making. (35)

      Conversely, the ideological-matching viewpoint imagines the following type of situation. A judge runs for reelection after acquiring a judicial record of sentencing convicted criminal defendants to shorter terms than those requested by the government. (36) During the judge's campaign, criminal defense attorneys contribute money in recognition of the judge's record and its congruence with their own ideology. (37) Thus, campaign contributions flow to judicial candidates because the ideological position of a contributor matches that of the judicial candidate. Therefore, under this view, donations are not meant to "buy a vote" or to create a quid-pro-quo relationship, but...