Judge Russo's Plan to Restore Public Confidence in our Judiciary

A.        Overview of Problem & Proposal—

Today, as in the past, any justice of the Ohio Supreme Court can sit on cases where parties or entire industries which have financed their campaigns have legal issues pending before them.  The Wall Street Journal, the New York Times, and various Ohio newspapers have gone to great lengths to discuss how judicial campaigns have been taken over by “spending by special interests” that has soared “into the stratosphere.”  These types of characterizations have led to perceptions of impropriety. 

In 2002, Chief Justice Moyer, himself, commented that, “We have been subjected to the dark side of democracy.  The message is a direct attack on our courts.  We are telling people that we don’t expect judges to be fair and impartial.”  Editorial, Cash v. Quality:  Ohio’s Judicial Elections Smell More of Money than Merit, and the Rules Must Change to Give Voters Meaningful Choices, Cleveland Plain Dealer, Mar. 5, 2003, at B8.  “Roy Shotland, a Georgetown law professor and national authority on judicial selection, put it bluntly:  Ohio is viewed nationally as a kind of rogue state.  It has become the epitome of all that’s wrong with judicial elective politics.”  Editorial, Dayton Daily News, Mar. 10, 2003, at A8.

In response to this problem Chief Justice Moyer organized a forum to discuss this issue in the Spring of 2003.  “The daylong forum, entitled ‘Judicial Impartiality:  The Next Steps,’ was the first forum to discuss the judiciary since the state’s last constitutional convention in 1912.  Moyer organized the forum after unsuccessful attempts to coax the General Assembly to react to the spiraling costs to candidates and the rise of interest groups’ influence.”  T.C. Brown, Leaders Discuss Electing Justices, Cleveland Plain Dealer, Mar. 7, 2003, at B1.

Two reports were issued as result of this forum:  Judicial Impartiality:  The Next Steps:  A Call to Action, May 2003 (a preliminary report on the forum proceedings of March 6, 2003 (By Nancy Marion, Rick Farmer, Melissa Zujkowski & Nathan Cemenska);  Progress Report, January 2004 (a report on the activities through 2003 of the Judicial Qualifications & Term Lengths, Campaign Finance Disclosure, and Voter Education & Public Funding Work Groups).

The reforms offered by these reports were not well received by the mass media.  For example, the Editorial Board of the Plain Dealer stated:  “The blueprint for judicial reform in Ohio is misnamed … and would be more aptly titled ‘Baby Steps—Some of Them in the Wrong Direction.  Monday’s release of the long-awaited recommendations from a judicial election committee can only be described as a disappointment.  … Last March, we suggested that this effort at judicial reform replace a system that pays lip service to fairness and impartiality with one that demands them.  These reforms, though are neither courageous nor meaningful.”  Editorial, Nice Try, But … Reforms Suggested for Ohio’s Judicial Election System Would Do Very Little to Improve on the Current Mess, Cleveland Plain Dealer, Jan. 14, 2004, at B8.

On January 25, 2006, Chief Justice Moyer testified before the Ohio House Judiciary Committee on H.B. 266, wherein he stated that “[a] majority of citizens believe campaign donations influence the behavior of a judicial candidate if he or she should win.  How can we expect citizens to believe otherwise when more than seven million dollars was raised by candidates in three of the Supreme Court races in 2004?”  Chief Justice Thomas J. Moyer, Testimony on H.B. 266 before the House Judiciary Committee (Jan. 25, 2006).

In a front page article of the Sunday New York Times, Ohio judicial elections were the subject of national ridicule when the Times reported as follows:

Thirty-nine states elect judges, and 30 states are holding elections for seats on their highest courts this year.  Spending in these races is skyrocketing, with some judges raising $2 million or more for a single campaign.  As the amounts rise, questions about whether money is polluting the independence of the judiciary are being fiercely debated across the nation.  And nowhere is the battle for judicial seats more ferocious than in Ohio.

An examination of the Ohio Supreme Court by The New York Times found that its justices routinely sat on cases after receiving campaign contributions from the parties involved or from groups that filed supporting briefs.  On average, they voted in favor of contributors 70 percent of the time.  Justice O’Donnell voted for his contributors 91 percent of the time, the highest rate of any justice on the court.

In the 12 years that were studied, the justices almost never disqualified themselves from hearing their contributors’ cases.  In the 215 cases with the most direct potential conflicts of interest, justices recused themselves just 9 times.

Even sitting justices have started to question the current system.  ‘‘I never felt so much like a hooker down by the bus station in any race I’ve ever been in as I did in a judicial race,’’ said Justice Paul E. Pfeifer, a Republican member of the Ohio Supreme Court.  ‘‘Everyone interested in contributing has very specific interests.’’

‘‘They mean to be buying a vote,’’ Justice Pfeifer added.  ‘‘Whether they succeed or not, it’s hard to say.’’

Adam Liptak & Janet Roberts, Tilting the Scales?  The Ohio Experience:  Campaign Cash Mirrors a High Court’s Rulings, N.Y. Times, Oct. 1, 2006, at A-1;  see also Adam Liptak, Case Studies:  West Virginia and Illinois, N.Y. Times, Oct. 1, 2006, at A-21 (discussing examples from those states);  see generally, Opinion, Judicial Politics Run Amok, N.Y. Times, Sept. 19, 2006, at A-24 (arguing that high spending and special interest involvement in judicial campaigns undermine public respect and confidence in the judiciary).

The Ohio State Bar Association responded to this critique by saying that the “Association would like to see consideration of stronger recusal and/or disqualification provisions that would be triggered when campaign contributions reach certain levels, subject to waiver by mutual consent of the parties.”  Press Release, Oh. St. B. Ass’n, Oct. 5, 2006 (statement of President John S. Stith).

Recently, Chief Justice Moyer stated in part:

As in many other states, including my own state of Ohio, public confidence in the courts is being threatened under the weight of more aggressive, partisan and expensive judicial elections.

Interest group campaign contributions have caused judicial candidate fundraising to skyrocket all across the country.  …

In Ohio, where I have served as chief justice since 1987, election to the Supreme Court now routinely costs at least $1 million.  Candidates have little choice but to raise funds from attorneys and others who may later have cases in our court, creating the perception of a conflict of interest in many minds.

Thomas J. Moyer, Wisconsin Has Chance to Improve Faith in Courts, Capitol Times, Mar. 5, 2008 (arguing in favor of public financing of judicial elections).

Despite these problems, the Proposed Ohio Code of Judicial Conduct Rule 2.11 deletes the model rule relating to disqualification procedures related to the acceptance of significant campaign contributions.  This deletion is wholly inappropriate at this juncture in Ohio judicial history.  The perception of our Court must be dramatically altered.  Since we are currently overhauling the Ohio Code of Judicial Conduct, now is the time to act.  There will be some who will resist these changes because of the financial sacrifice it may impose on the current members of the Court.  However, doing the right thing is often difficult.  A recusal rule related to campaign contributions will address any appearance of impropriety.  A recusal rule  partnered with a second proposal for publicly financed judicial campaigns, such as those currently held in North Carolina or to be held in the future in Wisconsin, will eliminate the specter of a judicial system influenced by financial contributions.  Together these proposals will insure a fair and impartial judiciary.  For these reasons, I propose the following modification to Rule 2.11(A)(4) of the Ohio Rules of Judicial Conduct.

Proposed Modification of Rule 2.11(A)(4)

(4) The judge knows or learns by means of a timely motion that a party, a party’s lawyer, or the law firm of a party’s lawyer, has within the last seven (7) years made aggregate contributions to the judge’s current campaign or the judge’s previous campaign for any office that qualifies that person, entity, or special interest, as a “major donor,” which is defined, as follows:

(a)        If the donor is an individual, “donor” means that individual, the individual’s spouse, or the individual’s or the individual’s spouse’s child, mother, father, grandmother, grandfather, grandchild, employee and employee’s spouse;

(b)        If the donor is an entity other than an individual, “donor” means any entity, its employees, officers, directors, shareholders, partners, members, and contributors and the spouse of any of them;

(c)        If the donor is a 501(C) or 527 organization as defined by the Internal Revenue Service, then “donor” means any individual, and any entity, including its employees, officers, directors, shareholders, partners, members, contributors and spouses of any of them who have contributed to the 501(C) or 527 organization;

(d)       If the donor is a political party organization as defined by the Internal Revenue Service, then “donor” means any individual, and any entity, including its employees, officers, directors, shareholders, partners, members, contributors and spouses of any of them who have contributed to the political organization;

 (e)       A “major donor” is a donor who or which has, in the last seven (7) years made contributions to the judge’s campaign for any office  (a) exceeding $10,000, if the judge is a justice of the Supreme Court or running for that office, (b) exceeding $7,500 if the judge is a judge of the Court of Appeals or running for that office, or (c) exceeding $5,000 if the judge is a judge of a court other than the Supreme Court or the Court of Appeals or running for that office;

(f)        The term “contribution to the judge’s campaign” shall be the total of all contributions to a judge’s campaign and shall be deemed to include all contributions of every kind and type whatsoever, whether in the form of cash, goods, services, or other form of contribution, and whether donated directly to the judge’s campaign or donated to any other person or entity for the purpose of supporting the judge’s campaign and/or opposing the campaign of the judge’s opponent(s).  The term “contribution to a judge’s campaign” shall also be deemed to include any publication, advertisement or other release of information, or payment therefore, other than a bona fide news item published by existing news media, which contains favorable information about the judge or which contains unfavorable information about the judge’s opponent(s).

This rule passed the Ohio Judicial Conference Ethics and Professionalism Committee and is now pending before the Supreme Court Task Force on the Code of Judicial Conduct.