Fund-Raising Ills : For Judges, the Stakes Are Rising

After Rose Elizabeth Bird and two other members of the California Supreme Court were retired by voters in 1986, most legal experts and political observers called the vote an aberration. Malcolm Lucas, who succeeded Bird as chief justice, even described the acrimonious, $11.4-million campaign as “a 100-year flood.”

Yet the intense public focus on that high-stakes battle has all but obscured a trend that, some now say, threatens the independence and the moral foundations of the nation’s judiciary. Throughout the country, judges increasingly are being forced to hit the campaign trail--to raise huge sums of money, often from special interest groups that have a tangible stake in the outcome of cases before the courts.

This unseemly spectacle is as disturbing as if baseball umpires were allowed to receive donations from both teams in a highly contested game, said Gerald F. Uelmen, the respected dean of the Santa Clara University School of Law.

More Races, More Money

Indeed, more than half the state judges in the United States now face some form of election to either win or retain a seat on the bench, thus necessitating the raising of campaign funds. Compounding the problem is that such elections are being contested like never before.

“Those who spend money to influence public policy have suddenly discovered that a lot of public policy is made by Supreme Court judges and it’s a lot cheaper to influence the outcome of this selection of Supreme Court justices than it is to influence the outcome of the selection of a governor or a legislator,” Uelmen said.

That epiphany has inspired countless free-spending judicial campaigns all over the country--often at the grass-roots, county courthouse level--financed on both sides by those most able to contribute and with the most at stake in the outcome of these races: lawyers who have cases in those courts.

‘An Inherent Conflict’

For judges, “the greatest of all conflicts is raising money and then trying to remain impartial,” said Jeffrey Shaman of the American Judicature Society, a 75-year-old, Chicago-based independent research organization that promotes improvement and public understanding of the courts. Such circumstances, he said, are “clearly an inherent conflict of interest.”

Yet, breathtaking increases in judicial campaign spending are being reported throughout the country.

In Ohio, the 1986 race for chief justice cost $2.7 million, compared to less than $100,000 only six years earlier.

Incumbent Frank Celebrezze was heavily supported by big labor, although he was hurt by reports that more than $10,000 of the $350,000 he got from the labor unions had come from union officials with alleged ties to organized crime.

Business interests supported his opponent, Thomas Moyer. Among his biggest supporters was the medical profession, whose assorted political action committees donated more than $50,000.

After Moyer was elected, he decided to re-hear 30 cases that Celbrezze had rushed through during his final weeks in office. After the Cleveland Plain Dealer disclosed that Moyer had received huge contributions from lawyers in five of those cases, Moyer disqualified himself.

Also in 1986, campaign spending for one Kentucky Supreme Court seat rose by more than 350% from 1978, the last time that seat was open. Shortly after he won the race, Joseph Lambert held five fund raisers to retire his $40,500 debt. One event was held at a prominent lawyer’s office.

Even in sparsely populated Montana, two candidates for chief justice in 1986 spent nearly $250,000, up 320% from 1980.

In Louisiana, which does not compile judicial election data, judicial campaign spending has doubled in the last 10 years, according to Common Cause.

Now in Election Reports

In North Carolina, where three Supreme Court judges, including the chief justice, lost their seats in partisan election contests in 1986, officials have decided to include, for the first time, judicial races in the state’s annual election reports.

The politicalizing of judicial campaigns, especially by special interest groups, did not suddenly appear in 1986 without warning.

In 1984, the chief justice of the Indiana Supreme Court was challenged in a spirited campaign by right-to-life groups after he authored a controversial decision striking down that state’s law limiting abortions.

Another close call that year was a challenge to Oregon Supreme Court Justice Hans Linde, who managed to retain his seat, thanks in part to a nationwide fund-raising drive.

In 1983, three incumbents on the Alabama Supreme Court spent more than $600,000.

In New York a year earlier, three candidates for the Manhattan Surrogates Court spent more than $800,000. In Rochester, N.Y., one judicial candidate alone spent more than $800,000--the most by any countywide office seeker.

Also in 1983, seven candidates for one seat on the Pennsylvania Supreme Court spent $630,000. In that campaign, then-Associate Justice Robert Nix had as one of his chief fund raisers a senior partner in a law firm that had an important case pending before the court. Some of the fund-raising strategy sessions Nix had with that lawyer were held in the court chambers.

In Michigan, where a campaign for the Supreme Court in 1976 had cost almost $100,000, many candidates for seats in the trial courts are spending that much today. The two recent victorious Supreme Court candidates spent $430,000 and $200,000. Two others spent nearly $100,000 each.

Such politically charged judicial elections have become “serious problems,” Justice Byron R. White of the U.S. Supreme Court warned in a speech in San Francisco last year.

“If the people are to have the brand of justice to which they are entitled, judges must have sufficient protection against political or other pressures that threaten to distort their judgment,” White said at the annual meeting of the American Bar Assn.

What Does Public Think?

”. . . What does the public think of judges who must raise money and campaign as other candidates for political office? What obligations have been incurred or promises made?”

Nowhere are the pitfalls of a judiciary so dependent on campaign contributions more evident than in Texas. There, one Supreme Court justice has been reprimanded and another admonished by the Texas Commission on Judicial Conduct, for having improperly solicited campaign contributions.

The controversies involving Texas Supreme Court Justices C.L. Ray and William Kilgarlin are unique in many aspects, but reformers say their cases nevertheless highlight the dangers of a too-cozy relationship between judges and lawyers during an election campaign.

In 1984, a prominent San Antonio attorney, Pat Maloney Sr., gave $20,000 to Ray’s campaign. Ray is the member of the court charged with managing the transfer of cases among the state’s 14 lower appellate courts to equalize the workload.

After that contribution, Maloney wrote Ray at least five letters requesting the transfer of two specific cases in which he, Maloney, represented litigants. Ray acceded, even though one of the cases was not even eligible for transfer.

The Texas Commission on Judicial Conduct later concluded: “The appearance of partiality in this case was especially significant in the light of the substantial contributions which Justice Ray had received from Mr. Maloney.”

The panel also found that Ray had acted improperly on five occasions in accepting free rides on private jets paid for by lawyers who had cases pending before the court. Ray did not report the trips as either campaign expenditures or campaign contributions.

The gravest finding against Ray was that he had improperly solicited campaign funds.

After allegations of impropriety against Ray and Kilgarlin surfaced, the Judicial Affairs Committee of the Texas House of Representatives in 1986 issued subpoenas to compel Ray and Kilgarlin, among others, to testify at public hearings. But the two judges filed a lawsuit to prevent enforcement of the subpoenas. In addition, they filed a defamation suit against a former Supreme Court staff attorney who had testified against them in the hearings.

At the same time, Ray and Kilgarlin wrote letters soliciting donations to help finance their suit against the House committee and the court’s former staff lawyer.

Lawyers throughout the state received the solicitations, including many who had cases pending before the Supreme Court. The requests were distributed at the judges’ personal expense, but the letters had been written on their official court stationery.

The Commission on Judicial Conduct in June concluded that Ray’s “willful and persistent conduct was clearly inconsistent with the proper performance of his duties” and said that he had brought “discredit upon the judiciary and the administration of justice.” The panel formally and publicly reprimanded Ray, something it had never done before.

Ray’s campaign eventually spent more than $1 million, and his list of campaign contributions formed a book 195 pages long.

Kilgarlin received a less severe “admonishment” from the commission, but it also was without precedent.

Kilgarlin, besides the solicitation offense, also was found to have improperly allowed two members of his staff to take all-expenses paid trips from San Antonio to Las Vegas in 1985. The lawyer who provided the junkets was Pat Maloney Sr., whose San Antonio law firm had two cases pending before the court.

Three years earlier, Maloney, along with a wealthy business client, had given $350,000 to candidates who were seeking three contested seats on the Supreme Court. Two of them won, and almost right away, the judges were back on the telephone--one made 120 fund-raising calls in the first week, the other 75.

Texas also attracted the attention of judicial reformers because of the litigation between Pennzoil and Texaco, stemming from Pennzoil’s attempt to buy Getty Oil, which was foiled at the eleventh hour by Texaco.

After a Texas court awarded Pennzoil $7.53 billion, lawyers on both sides of the case began contributing huge sums of money to the reelection campaigns of the members of the Supreme Court, where the case seemed likely to end up.

In a brazen display of one-upmanship, firms and political action committees affiliated with the warring parties went on to give about $400,000 to members of the court, including justices who were not up for reelection.

Together, the recent judicial campaigns in states such as Ohio, Pennsylvania, Texas and California have prompted judicial reformers to demand changes in the way the nation’s judges are selected and retained. (See related story.)

In California, former Chief Justice Bird has called for giving judicial candidates more access to television. “I’m not saying that’s why we lost,” she said. “But we need to do something about the cost of TV. That’s the fundamental way people communicate now in the political process.”

The American Judicature Society is considering developing a nationwide campaign to educate the public on the importance of an independent judiciary. Ironically, several studies by political scientists have found that “the more the public knows about what judges really do, the less inclined they are to support judges,” according to Uelmen.

Around the country, one of the most often mentioned alternatives is the merit selection plan, a system in which judges are appointed, usually by a governor, from a list of candidates recommended by a blue ribbon commission. Roughly half the states have some form of merit selection, at least for initial appointment to the bench.

Also gaining favor is a limit on spending and contributions. Michigan now allows committees to solicit on behalf of judges, who are not permitted to solicit directly. But such committees may not solicit more than $100 from any individual lawyer, although the committees may accept whatever amount a lawyer is moved to give.

Still another proposal would shield judicial candidates from the identity of all donors, perhaps through the creation of blind trusts. Such a proposal was advanced in 1972 by the Florida State Bar, but it died in the legislature. The proposal would have barred anyone from contributing directly to a judicial candidate; rather, donors would give through a judicial trust fund, and that money then would be distributed to candidates.

The notion of shielding judicial candidates from contributors has the support of Joseph R. Grodin, who was a California Supreme Court justice until he was voted out of office in 1986 by a margin of 57% to 43%.

Grodin said he was especially troubled because state law required him to sign periodic public reports during the campaign that listed each contribution and its source.

“All of this was not only personally distasteful but unseemly as well, and unavoidable as it was, almost certainly, in the long run, erosive of public confidence,” he said.

One beguilingly simple solution--or so it might seem--might be that judges simply disqualify themselves from cases in which any party is represented by a lawyer who had made a campaign contribution to that judge. But in reality, that is not so straightforward a proposition, as some judges, such as Arkansas Supreme Court Justice David Newbern, have discovered.

Former Students Contribute

When Newbern in 1984 ran for a seat on the Arkansas Supreme Court, after 13 years as a law professor at the University of Arkansas in Fayetteville, he recalled, “There were 13 generations of my former law students out there, and the wide support I got seemed unbelievable.”

One result was money. Lots of it. And it enabled Newbern to outspend his opponent 2 to 1 and to hire a “super PR firm” headed by a man who had bit parts in “Dallas.”

Now a member of the Arkansas Supreme Court, Newbern said he bends over backward to avoid the appearance of impropriety. “I have this problem every day,” he said in an interview.

Whether reformers will make much headway is problematic. When the chief justice of the Texas Supreme Court appointed a “Committee of 100” to explore the adoption of the merit selection plan, the state’s powerful plaintiffs’ lawyers group appointed a “Committee of 200” to put up resistance.

In California, this is what Grodin had to say about his own campaign experience:

“It was a novel experience and one for which nothing in my background had particularly prepared me. We had fund-raising events, fund-raising letters and, worst of all, fund-raising phone calls. At first I resisted personally asking anyone for money, but our canons of ethics in California expressly permit a judge who is opposed in an election to do that, and I was finally persuaded that I had to do it if I were to raise the amounts needed for an effective campaign.”

Stake in Judicial Process

Most of Grodin’s campaign contributions had come from lawyers and other groups that, as he noted, “had some interest, not to say stake, in the judicial process.”

Grodin, now a law professor in San Francisco, concluded:

“We need to demonstrate, to reconfirm, the value to society as a whole in having a branch of government not subject to lobbying or political pressure--the value to society of insisting upon judicial integrity.”