Basic Fairness

Contributions to Judicial Candidates
By Charles McElwee

Several recent newspaper articles have reported on the analyses made by the People"s Election Reform Coalition (PERC) of campaign contributions from business interests to successful gubernatorial and legislative candidates in the 1996 election. These PERC articles led The Charleston Gazette to editorialize that campaign money from industry chiefs casts a shadow on state actions, leading to suspicions of government for sale. For some unexplained reason, PERC omitted from its analyses the contributions made to court candidates in that same election.

In 1998 one justice of the Supreme Court of Appeals and a number of circuit judges will be elected for unexpired terms. Two years from now another justice and all State circuit judges will be elected for full terms. It is, therefore, timely that we examine contributions to the elections of judicial candidates and consider how, as the Gazette has recently editorialized, campaign money can give an appearance of justice for sale.

The place to begin is with the West Virginia Code of Judicial Conduct, which establishes standards for the conduct of judges and candidates for judicial office. The Code (1) directs a candidate for judicial office at the start of the campaign to "instruct his or her campaign committees to solicit or accept only contributions that are reasonable under the circumstances"; (2) permits campaign committees of a judicial candidate to solicit and accept "reasonable campaign contributions" from the public generally and Afrom lawyers"; and (3) declares that "campaign contributions of which a judge has [actual or circumstantially-inferred] knowledge, made by lawyers or others who appear before the judge, may be relevant to disqualification [under the disqualification section of the Code]." While a candidate for judicial office is barred from personally soliciting or accepting campaign contributions, the candidate is allowed to learn from various sources who has contributed and the amount of contributions to his or her election campaign.

The Code thus recognizes that election campaign contributions of which a judge has knowledge -- even if only by inference -- may be unreasonable even though they are within the limits allowed by law. There also may be "circumstances" which render campaign contributions unreasonable when but for such "circumstances" the same contributions would be reasonable. Either the unreasonableness of contributions or their unreasonableness under the circumstances may cause a judge's impartiality to be reasonably questioned in a proceeding before the judge, and require, under the Code, his or her disqualification in that proceeding.

The standard declared by the State Supreme Court of Appeals for determining a judge's disqualification is whether a reasonable and objective person knowing all the facts -- in this case the amount and circumstances of campaign contributions to a judge and the judge's actual or inferred knowledge thereof -- would harbor doubts concerning the judge's impartiality in a particular case pending before the judge. Stated somewhat differently, the crucial question is: do the amounts and circumstances of campaign contributions to a judge create an appearance of impropriety for the judge to preside in a given case? Our highest State Court has said that if the circumstances offer a "possible temptation" to the average person as a judge not to hold the balance nice, clear and true between the parties, a judge should step aside.

Let us consider some concrete instances in which contributions to a judge's election campaign, when viewed in light of the "circumstances," might cause a harboring of doubts of judicial impartiality, an appearance of impropriety, or a "possible temptation." While the assumed facts are not based on any actual situation, they could readily occur in a judicial election.

Assume that a lawyer for the plaintiff in a case pending before a judge contributed, along with his or her spouse, $4,000 ($2,000 in the Primary Election and $2,000 in the General Election) in connection with the judge's currently on-going campaign for reelection. The defendant and the defendant's lawyer have made no contribution to the judge. Would you harbor doubts concerning the judge's impartiality in the case? Would these circumstances, in your opinion, give an appearance of impropriety for the judge to preside over the case and make rulings therein? The same questions may be asked if the lawyer for the defendant and the lawyer's spouse had made the contributions.

Assume that a lawyer for the plaintiff in a case pending before a judge contributed, together with other lawyers in the same law firm, and their spouses, $8,000, $10,000, or even $20,000 to the judge's current campaign for reelection, while the defendant's attorney and other lawyers in the same firm and their spouses have made no contributions to the judge's campaign. Would you harbor doubts concerning the judge's impartiality in the case? Again, the same question may be asked if the defendant's lawyer and his firm colleagues and their spouses had been the ones who had contributed large amounts to the presiding judge.

Finally, assume that a lawyer for the plaintiff in a case pending before a judge is a member or part of a class -- say of personal-injury lawyers representing almost no one but plaintiffs or of defense litigators representing almost no one but defendants -- and the lawyer, together with the partners and associates in his or her law firm, their spouses, and other lawyers in the class of which the lawyer is a part, contributed in the judge's preceding election by far the greatest percentage (say 50%, 60% or 70%) of the judge's election campaign contributions. Would you harbor doubts concerning the judge's impartiality or create a "possible temptation" to the average judge not to hold the balance nice, clear and true between the parties?

Here is a reason why you may. Assume that a judge of a circuit court won an election a couple of years ago to fill a vacancy for an unexpired eight-year term and intends to run for the full term two years hence. That judge knows, or can reasonably be inferred to know, two things:

First, that in the recent election 60% of the contributions to his or her campaign came from a class of lawyers who, one would reasonably assume for present purposes, share common professional or economic interests that may be helped or hurt by rulings of the judge.

Second, the judge knows that in two years' time substantial contributions will have to be secured again if the election is to be won.

Since the judge knows the principal source of campaign funds in the last election came from a particular class of contributors and that this source can be tapped again in the forthcoming election, would it not create an appearance that the judge may carefully craft judicial rulings so as to preserve the support of the very class that has been, and can be again, the major source of campaign contributions? Wouldn't these circumstances cause you to harbor doubts about the judge's impartiality or create a "possible temptation" to the average judge not to hold the balance nice, clear and true between the parties.

As a general rule, candidates for judicial office get comparatively little attention even though the judiciary is of at least as much importance as the executive and legislative branches of government. There are exceptions. A particular candidate may get a lot of attention and attract considerable financial and organized support, although for the wrong reason -- namely, a belief that the candidate may inject his or her political allegiances or personal views into the task of judging. In such an instance, considerable support is likely to come from those who share those allegiances or views and who will benefit from slanted judgments based thereon. Such supporters don't want a conscientiously impartial judge; they want a judge who will be favorable to them. That kind of interest in the campaign of a judicial candidate is to be abhorred. It demeans the office of judge and destroys the public's confidence in the integrity and impartiality of the judiciary. Unfortunately, a candidate for judge is not likely to garner a lot of enthusiastic support merely because the candidate is professionally competent, scrupulously impartial, independent and fair.

The pressure put on judicial candidates to raise campaign money and a willingness of contributors to give to candidates from whom they expect an unbalanced promotion of their views may tempt candidates to violate the Code of Judicial Conduct by making statements that commit, or appear to commit, the candidate with respect to cases, controversies or issues that are likely to come before the candidate as a judge.

The Code of Judicial Conduct, as it is presently worded, is inadequate to deal with the appearances of impropriety that contributions to judicial candidates may cause. The admonitions of the Code that judicial candidates should accept only "reasonable contributions" and "contribution that are unreasonable under the circumstances" are simply too vague for standards of conduct in election campaigns.

It is therefore proposed, for discussion purposes, that the Supreme Court of Appeals amend the Code of Judicial Conduct to provide specific rules for the disqualification of judges resulting from contributions to their election campaigns.

The proposal is that disqualification would be required when contributions to the judge's current or last campaign for election as judge exceeded a certain amount from lawyers and/or their clients in a case pending before the judge or from a class of which the lawyer or party is clearly a part. The limitations on contributions for disqualification purposes would have to extend beyond the party or lawyer to their spouses and minor children, to those in legal practice with the lawyer, and to the officers and political action committees of a party which is a corporation or other entity.

This rule would take some time and care to draft. It would have to be precisely drawn. Such a rule would accomplish two objectives.

First, it would tell judicial candidates what campaign contributions are unreasonable and the "circumstances" which make campaign contributions unreasonable. They will no longer have to guess what they may be.

Second, and even more important, it would maintain the public's confidence in the impartiality of our judges and fundamental fairness of the proceedings over which they preside.

The contributors and the amounts of contributions to judicial candidates will undoubtedly be scrutinized and publicized over the next couple of years as never before. In the absence of reform, the continuation of past practices will undoubtedly create appearances of impropriety and undermine the public's respect for the impartiality and fairness of our judicial system. We must act now to head off what is otherwise bound to happen.

Whether the proposal outlined above is the best approach can be debated. Perhaps there is a better one. In any case, however, the West Virginia State Bar and the Supreme Court should give the matter of contributions to the election campaigns of judicial candidates their immediate and urgent attention.

Mr. McElwee is a Charleston lawyer.

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