Our judges must appear fair as well as be fair

Should a supreme court judge hear a case in which the chief executive officer of the company being sued spent $3 million to help elect the judge?

The U.S. Supreme Court is considering the question in Caperton v. Massey, in which a judge who benefited from $3 million in support refused to withdraw from the case. He then voted with two other judges to reverse a $50 million jury verdict against the company. The court will hear argument on Tuesday and decide by the end of June whether the judge’s participation in the case violated the due process right to an impartial judge.

Eight hundred years ago, King John promised the English barons in the Magna Charta, “To none will we sell, to none will we deny, to none will we delay right or justice.” This promise of absolute impartiality has become the bedrock of the American system of justice.

Justice Sandra Day O’Connor wrote in the 2002 decision Republican Party of Minnesota. v. White, “Even if judges were able to refrain from favoring donors, the mere possibility that judges’ decisions may be motivated by the desire to repay campaign contributors is likely to undermine the public’s confidence in the judiciary.”

Studies have shown that three out of four Americans believe that election contributions affect judges’ decisions. Even if the Caperton judge were totally impartial, remaining on the case creates the perception that the justice could not possibly remain impartial. The Goddess of Justice is always portrayed as blind, emphasizing her complete impartiality.

Could this problem occur in Washington? Unfortunately, yes. But a proposed court rule now under consideration would require a judge to step down from a case if one of the parties or lawyers had spent more than a defined amount supporting the judge’s election. The Washington Supreme Court should adopt the rule to avoid a fiasco like the Caperton case.

Justice must appear to be fair as well as actually being fair. The U.S. Supreme Court should reverse the Caperton case, and the Washington Supreme Court should adopt the proposed rule to prevent such a situation from arising here.

Retired state Supreme Court Justice Robert Utter served as a judge on the King County Superior Court and the Court of Appeals and as president of the American Judicature Society. Charlie Wiggins served as a judge on the Court of Appeals and now practices law with Wiggins & Masters on Bainbridge Island.