Do campaign contributions affect how judges decide cases? Studies indicate the answer is yes. A recent effort by Cleveland attorney Subodh Chandra to disqualify a Summit County judge illustrates how money might drive the public’s thinking on a judge’s impartiality.
First, some background about money and state supreme court elections.
In 2009, the U.S. Supreme Court held in Caperton v. A.T. Massey Coal Co. that Chief Justice Brent Benjamin of the West Virginia Supreme Court erred in not recusing himself from a case concerning a $50 million judgement against Massey Coal. Massey’s president had contributed $3 million to Benjamin’s election campaign, and Benjamin was the swing vote in reversing the judgment.
In 2012, Ohio was among five states that had the most expensive state high court elections, with just under $3.5 million going to Ohio Supreme Court candidates.
In the 2014 Oho Supreme Court race, Cuyahoga County Judge John P. O’Donnell publicly criticized sitting Justice Judith French for accepting campaign contributions from utility executives and employees and then hearing a case concerning American Electric Power.
Did campaign contributions influence a trial court judge in Summit County, Ohio?
Let’s get back to Attorney Chandra, who represents the plaintiffs in a class action suit against Kisling Nestico & Redick (KNR), a Cleveland law firm. The case was assigned to Summit County Judge Alison Breaux, newly elected in Nov. 2016. Suspecting Breaux was biased against his case—Chandra alleged she had shown a “hostile demeanor” and issued “plainly erroneous” decisions—Chandra investigated Breaux’s campaign contributions.
Chandra learned that Breaux had received six months’ free use of a billboard truck from KNR. She reported the value of her use of the truck at $3600. Valuations Chandra quoted from a political consulting firm and an advertising company put the value at $24,000 to $43,200. Breaux’s campaign had received $93,000 in monetary contributions.
Chandra asserted that Breaux and Judge Joy Oldfield, who was also supported by KNR, “ran a joint campaign,” meaning that a contribution to Oldfield was “effectively a contribution” to Breaux. By supporting Oldfield, KNR was able to support Breaux indirectly as well as directly.
Chandra asked the Ohio Supreme Court to disqualify Breaux, claiming she could not act impartially. Breaux responded, “I can unequivocally state that I am not biased against plaintiff or his counsel nor am I biased toward KNR.” She denied suffering from “any bias, whatsoever, or impropriety which would cloud” her judgment.
Chief Justice Maureen O’Connor denied Chandra’s request. “It is not reasonable to question a judge’s impartiality based solely” on campaign contributions. She also found his statements to be speculative and insufficient to establish bias.
O’Connor’s decision is not surprising. The bar to disqualifying a judge is high. Plus, to disqualify Breaux, O’Connor would have had to draw a line about campaign contributions in a system where practically every judge relies on them.
Breaux’s reckoning of the situation misses the mark, which is also not surprising. People seldom admit to bias because it often operates on a subconscious level.
But studies that analyzed state supreme court decisions indicate that money influences judicial decisions.
In her 2013 work, “Justice at Risk,” Professor Joanna Shepherd of Emory University examined the explosion in campaign contributions for high court races across the union. Contributions skyrocketed from $83 million throughout the 1990s to $207 million from 2000 to 2009.
Shepard found “a statistically significant relationship between campaign contributions from business groups and justices’ voting in favor of business interests.” A justice who receives half his contributions from business groups, Shepard concluded, “would be expected to vote in favor of business interests almost two-thirds of the time.”
In 2006, the New York Times published its study concerning Ohio Supreme Court justices. Ohio justices were found to have “voted in favor of contributors 70 percent of the time.”
Perhaps we need to acknowledge that elected judges are politicians—at least to some extent, anyway. U.S. Supreme Court Chief Justice John Roberts may disagree—“Judges are not politicians, even when they come to the bench by way of the ballot”—but judges make campaign promises (usually limited to being tough on crime), glad hand and attend fundraisers to finance their campaigns.
Why should we expect judges not to be influenced—at least on some level—by the contributions they receive? Judges take the bench with all the foibles that are part of our humanity. To think otherwise is to ask far too much of a human being.
Retired Supreme Court Justice Sandra Day O’Connor had it right: “A saint would be hard-pressed to disregard the fact that one litigant gave them a huge donation while the other gave nothing.”
The role of money in judicial elections will only increase. At some point, a litigant will challenge one of Ohio’s Supreme Court justices to recuse himself. Then do we finally examine whether the system should be changed?
[This post was published in The Columbus Dispatch on July 30, 2017.]
Jack D’Aurora write for considerthis.com
Also published on Medium.
To subscribe to this blog, use the subscribe box at http://www.considerthisbyjd.com.