The latest ethical dispute involving state Supreme Court Justice Richard Sanders almost knocks the lid off the Groan Out Loud Meter.
It’s part of a much larger question: When should judges recuse themselves from case in which they have a real or apparent self-interest?
The answer should have been obvious in Sanders’ case.
He wrote a Jan. 15 decision that effectively increased the potential penalties a government body must pay to citizens who’ve been wrongly denied access to public records.
The ethical problem: Sanders had a dog in the fight. He had been seeking higher penalties in a records dispute of his own. His decision indirectly increased what the state might have to pay him – by as much as $614,000 in addition to the $18,112 he’d already been awarded.
We don’t quarrel with the tougher penalties he endorsed. Nor do we assume he was out to line his pockets. Sanders points out that he’s always been a supporter of open government, and his decision was consistent with that. He also points out that his participation in the case was cleared by the court’s ethical specialist.
Still, failing to recuse himself from a decision from which he stood to gain personally just looks bad. In the justice system, looks count.
This case has some overlap with another dispute now before the U.S. Supreme Court.
That court is hearing a case involving a West Virginia Supreme Court of Appeals justice, Brent Benjamin, who was elected with the help of $3 million in campaign spending from a single donor. Once elected, Benjamin turned around and cast the deciding vote to overturn a $50 million jury verdict against the donor’s corporation, the Massey Coal Co.
The Massey case was a travesty. No litigant should have to face a judge whose election appears to have been purchased by the opposing party.
Coming up with a sure-fire safeguard against such injustices will be tricky. Thirty-nine states elect judges at some level; Washington elects them at nearly all levels. Special interests have been pumping enormous sums into state supreme court elections in recent years, and there’s probably no way to elect judges without casting doubt on their impartiality in certain cases.
Still, judges should have the sense to step aside when a case directly affects – or appears to affect – their personal interests or those of a litigant who helped elect them. When in doubt, recuse. Benjamin should have done that. Sanders, too.
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