Contributors to legislative and executive branch campaigns generally support candidates who promise to deliver on certain programs or policy statements. Some contributors even expect special personal consideration and special individual treatment.
Such expectations create a significant problem when it comes to the judiciary. As a society, we have long valued judicial impartiality. Litigants want a judge who will be fair and impartial, regardless of the judge's personal opinions. In sharp contrast to candidates for legislative and executive branch offices, judicial candidates have been able to promise only to be fair and impartial, to analyze the issues and apply the law, to uphold the Constitution and to treat everyone who comes before the judge with courtesy and respect.
Historically in Washington, contributions to judicial campaigns have been from lawyers and judges, assisted by the candidate's family and friends, not from special interest groups. Contributions have until recently been so modest that most people were not concerned that the contributions would affect a judge's impartiality. A principal factor that has distinguished the American judicial system from those in many parts of the world has been the absence of money as a motivating factor in the outcome of the case.
That has changed. Political action committees are increasingly contributing large amounts to judicial elections. The result is that judicial neutrality is being threatened. To maintain respect for the rule of law, there needs to be both the perception and the reality of genuine judicial neutrality.
Big money can make it impossible for a judicial candidate to credibly pledge to be neutral. When individuals or PACs give large sums to a judicial campaign, it is not unreasonable to believe they will expect some kind of return on their investment. Even in the absence of any actual promise, large contributions of cash or services easily lead to the appearance of justice bought and paid for.
In partial response to this growing money problem, the Legislature this year passed a bill to limit the dollar amount of individuals' contributions to judicial campaigns, just as contributions had already been limited in campaigns for offices in other branches of government. But the Legislature did not place restrictions on groups who lobby for or against a judicial candidate independently of the candidate's campaign.
Unfettered PAC contributions, thus, remain a huge problem. It is not a partisan issue - any special interest contributions in judicial races will create potential problems that don't exist for the other branches of government.
Major contributors may expect special consideration from a judge who is otherwise expected to be neutral. The contributor's opponents may reasonably believe that the candidate will be biased in favor of the contributor's point of view. But the most adverse impact is the unavoidable erosion of public confidence in our system of justice, a system that has long been the envy of the world.
Can the judicial branch do anything about this new "big money" problem without action by the Legislature? We think it can. In addition to efforts to improve voters' access to information about judicial candidates described elsewhere in this issue of the Bar Bulletin, we suggest that the bar and the judiciary give serious consideration to changing the Code of Judicial Conduct.
For example, the bench and the bar should consider an additional category for recusal or disqualification in Canon 3 of the Code of Judicial Conduct. Canon 3(D)(1) already provides that judges "should disqualify themselves in a proceeding in which their impartiality might reasonably be questioned" and then lists examples such as personal bias, prior representation, economic interest and the like. A new section could be added requiring recusal if:
e) the judge or the judge's campaign committee, during the judge's campaign for election to judicial office, received the contribution of cash or services and/or benefited in any other manner from expenditures made by a person, entity or group having an interest that would be substantially affected by the outcome of that proceeding, and the size, nature of or timing of the contribution or benefit permits the judge's impartiality reasonably to be questioned.
To facilitate application of this new section, Superior Court rules and the Rules of Appellate Procedure could be amended to define the method and timing of a recusal motion. That motion could be appropriately decided by the presiding judge at the trial court level or an appellate panel, rather than by the individual judge or justice.
The American Bar Association is considering a similar recusal approach. That draft creates bright lines regarding the timing and amount of the contribution. Unfortunately, this proposed draft does no more than the legislation passed in Washington last year already does because it relates only to contributions to the judge's own campaign and has no effect on special interest contributions made independently of the judge's campaign.
There is no perfect answer to the issue of campaign contributions in judicial elections and their effect on the appearance of impartiality. Certainly, technology opens the door to solicitation of a multitude of smaller contributions directly to a judicial candidate rather than to a PAC. Authorizing the opposite side in a case to exercise an affidavit of prejudice at the appellate level is another "bright line" possibility to respond to the issue.
Washington has a long history of electing judges. Although the Walsh Commission recommended an appointment system followed by a retention election, that proposal was defeated in Washington some years ago. If judicial elections become partisan, with large special interest contributions eroding the public's confidence in the impartiality of Washington's elected judges, there are many in the bar who would favor other judicial selection methods. This specter might also convince voters it is time for a change.
We urge the bench and bar to consider these and other recusal proposals - justice simply must not be for sale to the highest bidder.
