The wrong kind of legal aid

Our view: Wisconsin adopts a model way to help keep elected judges honest

November 27, 2009

The peril of judicial elections was underscored earlier this year with the U.S. Supreme Court's ruling critical of a West Virginia Supreme Court justice who failed to recuse himself from a case involving a company whose CEO spent more than $3 million to get the judge elected.

While a majority of the high court looked askance at the justice's behavior, it didn't offer clear rules on when a campaign donation becomes a matter of impropriety. If $3 million is bad, what about $500,000? What's enough to indicate bias or at least the appearance of bias?

In Wisconsin, the state's highest court has been under similar scrutiny as special-interest groups have used their financial muscle in recent years to put more judges favorable to their cause on the Wisconsin Supreme Court. Attack ads financed by business interests raised particular concern in a hard-fought race last year.

But in America's Dairyland, they don't take such an assault on the independence of their judiciary so lightly. Earlier this month, lawmakers approved the state's first public financing of judicial elections.

The bill, which is expected to be signed into law by Gov. Jim Doyle, creates a system much like the one frequently proposed for Maryland's state legislative races. Candidates for the high court could receive up to $100,000 and $300,000 from the state for primary and general elections by first collecting 1,000 small contributions. Those who qualify can receive much more if their opponents opt out of the system (and spend more than $100,000 or $300,000).

The program is financed by a voluntary $3 check-off on individual state income tax returns - or from the state's general fund if that fails to collect enough money. Wisconsin is the third state in the nation to adopt some form of public financing for judicial elections.

Admittedly, the law is far from perfect. It does not, for instance, have a mechanism to compensate for so-called "issue ads" run by third parties in the campaign.

But at least its supporters recognize, and have attempted to counter, a serious problem with judicial elections: the opportunity to purchase a favorable ruling. While the gravest threat is posed to a high court (it only requires buying a justice or two), other, lower-level judicial races can be just as problematic.

In Maryland, circuit court judges are usually appointed by the sitting governor but then face an open election for a 15-year term. When those races are contested - as they frequently are - candidates must raise substantial amounts of money to be competitive.

And who donates to a judicial race? Inevitably, most of the money comes from those who have had - and likely will have in the future - business before the court.

Public financing would no doubt prove helpful to maintaining the circuit court's integrity. Maryland, with its appointed Court of Appeals, has experienced nothing like what happened in West Virginia in 2002, but there's not much to prevent something similar from happening in contested lower court races.

Marylanders deserve a judiciary that is as fair and impartial as humanly possible. Having candidates for the bench show up at law offices with hat in hand asking for money would seem to be wholly counterproductive toward that cause.

Readers respond
Why are we electing our judges in the first place? Judges are supposed to interpret and enforce the law independent of politics. The federal judiciary seems to work just fine with a lifetime appointment.

Removal from the bench should only be through impeachment and only for cause.

John T.

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