Famously, gangster Al Capone received his ultimate legal comeuppance not via a violent crime conviction, but rather, tax evasion. The latter transgressions, while no doubt low on the list of Capone’s wrongs, nonetheless produced a positive societal consequence: Capone’s imprisonment. The unprecedented decision this week of West Virginia’s House of Delegates to impeach all four remaining justices of the state’s high court for their lavish, self-indulgent expenditures of taxpayer funds reflects a similar dynamic.
In West Virginia, Justice Robin Davis spent an absurd $500,278.23 in taxpayer dollars on renovating her office alone. Mind you, Davis is the same jurist who, through her husband, sold a $1.3 million Lear Jet to an attorney trying a multimillion case before her and never disclosed the deal. But while money flowing out of American courts is a problem, we should be paying attention to the bigger issue of money flowing in to judicial campaigns — and even, occasionally, into judge’s personal coffers — from litigants, lawyers and special interests with cases before the very judges who benefit from spenders’ largesse.
While money flowing out of American courts is a problem, we should be paying attention to the bigger issue of money flowing in to judicial campaigns.
Whatever direction the partisan pendulum may be swinging at any given moment in the constituent branches of state and federal governments, courts are responsible for delivering on the fundamental promise that is quite literally engraved on many of their physical edifices: Equality Under Law. The counter-majoritarian role of the courts serves as a valuable check, protecting unpopular but important rights from the excesses of pure majority rule.
Increasingly, however, America’s courts are failing to check themselves. Legislative and executive attacks on judicial independence are serious matters, but at the same time, the judiciary cannot be given a free pass merely because it is the judiciary. Judicial legitimacy derives directly from judicial restraint and integrity. And when the courts fail to police themselves, the cries of judges lamenting the intervention of other branches ring hollow.
In 2008, one of most popular books in the country was John Grisham’s “The Appeal,” a shadowy tale of justice for sale. Readers could be forgiven for wondering if fiction played fast and loose with the truth. Wonder not. Indeed, Grisham told NBC’s “Today Show” that real West Virginia judicial shenanigans inspired the novel. Sadly, this means that the book, while an entertaining thriller, is also spot-on political realism. It chronicles an underworld of political operatives and undisclosed funds where litigants spend millions of dollars picking the judges who decide their cases. This may seem far-fetched, but it’s also the way judges are chosen in much of the country.
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West Virginia may well be ground zero for judicial unseemliness, but any number of state courts around the country serve as cautionary reminders.
West Virginia may well be ground zero for judicial unseemliness, but any number of state courts around the country serve as cautionary reminders that courts and judges, be they elected or appointed, do not always adhere to the highest standards of ethics and integrity. Consider, in this regard, just four scenarios in brazen tension with 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 litigation, 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 the deciding vote ending proceedings on a $456 million claim against State Farm. (An illustrated timeline of this sordid tale may be found at page 67 of The New Politics of Judicial Elections: Decade of Change).
In the words of former U.S. Supreme Court Justice Sandra Day O’Connor, “It cost just over $9 million for that race. As you might have guessed, the winner of that race got his biggest contributions from a company that had an appeal pending before the Illinois Supreme Court. You like that?”
Similarly, a 2006 Los Angeles Times investigation entitled “In Las Vegas, They’re Playing with a Stacked Judicial Deck” revealed that even Nevada judges who were 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.”
New technology has made new forms of judicial misconduct available. Last December, New York, Suffolk-County Distict Court Judge Janine Barbera-Dalli was found to be sending text messages from the bench to prosecutors trying a case in her court, even going so far as to advise the prosecutors how to get Legal Aid removed from assisting the defendant.
Finally, we turn to a totally different West Virginia scenario. This one did not lead to impeachments en masse, but it did produce a landmark U.S. Supreme Court ruling that found that West Virginia so failed the basic tenets of fairness as to have unconstitutionally deprived a litigant of due process. The violations were so egregious that the Supreme Court’s majority opinion used the word “extreme” or variations thereof a jaw-dropping nine times to describe them.
Initially, then-West Virginia Chief Justice Elliot “Spike” Maynard cast the deciding vote overturning a $50 million jury verdict against the companies of coal executive Don Blankenship. When photos surfaced depicting Maynard and Blankenship on an undisclosed vacation together in the Riveria during the pendency of the appeal, the court was forced to reconsider the matter. It did so, however, with Brent Benjamin, whose 2004 campaign benefited from over $3 million of Blankenship’s support — a sum that totaled more than all of Benjamin’s other campaign support combined.
The tragic consequence of big money's increasing influence in the courts is that in the long term, we all suffer — including interest groups — when decisions reinforce suspicions that the biggest donor, not the best case, wins.
Preemptive reforms range from commission-based appointment systems to publicly financed campaigns to more rigorous recusal rules.
The after-the-fact impeachment of West Virginia’s entire Supreme Court has been criticized by some West Virginia Democrats as a partisan ruse intended to consolidate power. And maybe it is. Certainly, one branch of government single-handedly unseating another branch of government is cause for concern and could only conceivably be justified in extreme circumstances. Unfortunately, though, the justices of West Virginia’s high court, both individually and systemically, long ago relinquished any claim to the ethical, and even moral high ground necessary to sustain a claim that the impeachments lack merit.
Whatever happens in the short-term in West Virginia, it should be clear that mere reliance on the integrity and altruism that characterizes most of our judges is insufficient to preserve faith in the rule of law. Put differently, without sustained attention to systemic and preemptive tenets of judicial ethics, books like “The Appeal” will reside on the non-fiction shelf. Such a circumstance would be a loss not for the left; not for the right; but for all of who believe in the ideals of America.
James Sample is a professor of law at the Maurice A. Deane School of Law at Hofstra University. He is a co-author, with James J. Alfini and Charles G. Geyh, of the forthcoming sixth edition of Judicial Conduct and Ethics, published by LexisNexis.