Wall Street Journal Justice for Sale

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As posted on ToxLaw:

Justice for Sale

By JAMES SAMPLE

March 22, 2008; Page A24

Certain American values transcend partisan divisions. One

is that money should not influence the courts. But with

record sums pouring into judicial elections, the ideal of

due process is giving way to a perception of pay-to-play

justice.

This is not a matter of red versus blue. Seventy-six

percent of Americans believe that campaign contributions

influence judicial decisions, according to a 2001-2002

survey by Greenberg Quinlan Rosner Research and American

Viewpoint; 46% of state court judges agree, according to a

written survey by the same organizations. Separate recent

empirical studies in the New York Times and the Tulane Law

Review support the proposition that contributions not only

correlate with decisions, but alter them.

Grisham's latest bestseller, " The Appeal, " is a

shadowy tale of a chemical company that buys a favorable

legal ruling by funding the election of the judge who

makes it. Farfetched? Not according to West Virginia

Supreme Court Justice Larry Starcher. In a scathing

opinion last month, he decried a " cancer " of moneyed

influence in his court, asserting that " Grisham got

it right when he said that he simply had to read The

ton Gazette to get an idea for his next novel. "

The citizens of 39 states elect some or all of their

judges. These contests have become costly arms races. An

investigation by the Los Angeles Times, " In Las Vegas,

They're Playing with a Stacked Judicial Deck, " revealed

that even Nevada judges running unopposed collected

hundreds of thousands of dollars in contributions from

litigants. The report noted that donations

were " frequently " dated " within days of when a judge took

action in the contributor's case. "

Business interests and trial lawyers both lay out campaign

cash to ensure that sympathetic judges are elected. Both

sides attempt to manipulate courts; business just happens

to be better at winning. The U.S. Chamber of Commerce got

involved in 13 judicial races in 2004 and won 12.

Nationwide in 2006, business donors contributed twice as

much to state supreme court candidates as attorneys,

according to the National Institute on Money in State

Politics.

Consider three recent episodes in light of the American

Bar Association's requirement that judges disqualify

themselves whenever their " impartiality might reasonably

be questioned. "

Lloyd Karmeier, the winner of a $9.3 million campaign for

the Illinois Supreme Court in 2004, was supported by

$350,000 in direct contributions from employees, lawyers

and others directly involved with the insurer State Farm

and/or its then pending appeal, and by an additional $1

million from larger groups of which State Farm was a

member, or to which it contributed. Almost immediately

upon taking the bench, he cast a vote ending proceedings

on a $456 million claim against State Farm. A St. Louis

Post-Dispatch editorial put it this way: " Although Mr.

Karmeier is an intelligent and no doubt honest man, the

manner of his election will cast doubt over every vote he

casts in a business case. "

Wisconsin Justice Annette Ziegler declined, in December,

to recuse herself from a case involving Wisconsin

Manufacturers & Commerce, which spent $2 million -- more

than her Ziegler's own campaign -- supporting her 2007

win. In light of that decision, as well as additional

revelations that Justice Ziegler had ruled on 11 cases

involving a company for which her husband was a director,

editorials around the state called for her to step down

from the case, and even from the bench. Not

coincidentally, all seven of Wisconsin's Supreme Court

justices, a broad majority of Wisconsin's public, and even

a plurality of self-identified " very conservative "

Wisconsin voters support public financing of judicial

elections.

In November, West Virginia Chief Justice Elliot Maynard

voted in a 3-2 majority to overturn a $76 million judgment

against the companies of coal executive Don Blankenship.

In January, photos surfaced depicting Messrs. Maynard and

Blankenship vacationing in the French Riviera while the

appeal was before the court.

The court is now reconsidering the case -- a dispute with

mining companies on both sides. Justice Starcher, who

criticized Mr. Blankenship's influence, disqualified

himself and urged still a third justice, Brent ,

to do the same. Justice , whose 2004 campaign

benefited from over $3 million of Blankenship's support,

has refused to step down.

Justice Starcher (who asserts the actual amount of

Blankenship's support for Justice was $4 million)

wrote bluntly: " Just think about it -- $4 million! I know

hardly a soul who could believe that a justice who

benefited to this extent from a litigant could rule fairly

on cases involving that litigant or his companies. "

In the long term, we all lose when any decision reinforces

suspicions that the biggest donor, not the best case,

wins. Reforms range from commission-based appointment

systems, to publicly financed campaigns, to more rigorous

recusal rules. Without such measures, stories like " The

Appeal " will fill non-fiction shelves.

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