Question of Conflict

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While independent financing of judicial elections is commonplace, ethical issues regarding when and if judges should avoid cases involving campaign contributors are not clearly defined in the current judicial code of ethics.

The dilemma as to when a judge should disclose a financial connection, direct or indirect, to a party appearing in court and when to possibly step down from hearing the case raises concerns, according to James Alexander, executive director of the Wisconsin Judicial Commission.

“You don’t want the system to devolve into a situation where third parties can come in and force a judge they did not like off a case,” said Alexander.

While the current judicial code ethics dictates that judges disclose and possibly recuse themselves in cases where they cannot offer a “fair and impartial” perspective, Alexander said there is no explicit language dealing with campaign contributors.

Costly Cap

Cynthia Gray, director of the Center for Judicial Ethics for the American Judicature Society, says no states have clear-cut rules for when judges should disclose or remove themselves from a case involving campaign contributors.

“There are circumstances such as the size of a contribution relative to the rest of campaign, timing and other involvement with a party, which factor into the decision, and those would presumably change year to year,” said Gray.

Current Supreme Court Justices Annette K. Ziegler and Louis B. Butler Jr. recently disclosed that parties associated with a tax case contributed to their respective campaigns, but neither stepped down from Nov. 29 hearing. The case was Wisconsin Department of Revenue v. Menasha Corporation.

Wisconsin Manufacturers & Commerce, which the Associated Press reported helped finance the appeal, spent in excess of $2 million in support of Ziegler during her 2006 campaign.

Attorney Maureen A. McGinnity, who represents Menasha in the case, donated $500 to Butler’s re-election effort and served on his campaign finance committee.

Alexander said there had been debate among judicial officials about the merits of imposing a cap on campaign contributions in the judicial code, to help clarify when judges should recuse themselves from cases.

One of the major deterrents is that the limits could provide a means of manipulation for donors with deep pockets.

“Generally, individual contributions do not rise to a level that would require recusal, so the only thing you have to be careful of is if large contributions were made by a party involved in the litigation,” said Alexander.

He hypothesized that during an election, a group interested in keeping a particular judge off of cases in which that donor may be involved could make a contribution slightly above the amount which would require a recusal.

“That party wouldn’t have to worry about that judge sitting on a case of theirs ever again,” said Alexander. “That certainly wouldn’t be the purpose of the law.”

An argument can be made for the other side as well, said State Bar of Wisconsin President Thomas J. Basting Sr., who appointed a committee to investigate the integrity of judicial campaigns in the state.

“What about people who haven’t contributed to a particular judge?” said Basting. “Can a lawyer say, you should recuse yourself because I don’t want you mad at me for not donating to your campaign.”

Eroding Trust

While state history indicates judges have not been swayed by campaign contributions, Alexander said perception often overtakes reality.

“The public rightly has the perception that money spent for or against a particular candidate who then hears a case involving that party can be quid pro quo,” said Alexander.

A national survey of more than 1,500 adults released in October by the Annenberg Public Policy Center of the University of Pennsylvania revealed that 69 percent of the public thought raising money for elections affects a judge’s rulings to a moderate or a great extent.

“Third-party ads, which are independent of the candidates by nature, certainly give the perception that a judge has a bias,” said Alexander. “[But] a judge shouldn’t have to make the decision to disclose or recuse forced upon them by an independent party.”

But even at what point that decision should be made by a judge is difficult to define.

“If an attorney contributes $50 to a campaign and he or she comes before the judge, does that judge have to recuse?” said Basting. “The state would probably end up creating another circuit court in every county, because nobody could hear any cases.”

Gray suggested judicial appointments rather than elections would alleviate problems associated with third-party contributions, but the selection process is unlikely to change in Wisconsin.

More prominent discussions regarding public funding of campaigns have surfaced in the state and on Dec. 6, the State Bar launched the Wisconsin Judicial Campaign Integrity Committee.

Basting said the committee will not be directly involved in suggesting revisions to the judicial code; however, it will review judicial campaign materials produced internally and externally in support of candidates and determine whether it damages the integrity of the campaign or usurps public trust.