Early next month, the nine justices of the state Supreme Court will gather in their conference room to discuss making a big change in how judges are judged.
If they agree with a recommendation of a task force of judges, lawyers and laymen, Washington’s elected judges will have to step away from cases involving big financial supporters of their election campaigns.
A judge who fails to recuse himself or herself from cases involving campaign supporters would face discipline. And the proposed threshold is relatively low. Recent limits cap the amount a judge candidate can directly receive to $1,600 per election. The rule triggers recusal for any judge who benefits by an amount at least 10 times that – or $16,000. Because the only way to spend that much is through independent expenditure campaigns, the rule is directly pointed at those.
The change is sparked by a 2009 U.S. Supreme Court ruling that said due process is at risk when a judge receives significant campaign help from one of the parties in a lawsuit.
By a 5-4 vote, the justices ruled in Caperton v. Massey that a judge who benefited from $3 million in direct and independent expenditures from a party to the lawsuit should have recused himself. Instead, he cast the deciding vote in favor of his campaign supporter.
The politics surrounding the issue of money and judicial elections were central to the primary election campaign between incumbent Justice Jim Johnson and challenger Stan Rumbaugh. Rumbaugh, along with a coalition of unions that launched an independent expenditure campaign against Johnson, said big donations had tainted the incumbent.
Johnson, they said, was in the pocket of big business because he had been supported by business groups – especially the Building Industry Association of Washington – in past campaigns.
The irony, of course, is that Rumbaugh himself would have been open to the same accusation had he won. He didn’t, and now Johnson will be one of the justices passing judgment on the new rule.
Johnson wouldn’t say how he might decide next month. He did say he found the facts in the Caperton case “troubling,” but also said he is disinclined to have government decide how campaigns are run and how money is spent on them.
“I have been accused of being a First Amendment extremist,” Johnson said. He wrote the Rickert opinion in 2007 that said the government shouldn’t be policing campaign speech, even lies.
The proposed canon also resonates through the remaining race for justice between incumbent Justice Richard Sanders and challenger Charlie Wiggins. Wiggins, an appellate attorney and former appeals court judge, helped draft the proposed rule. Sanders has long opposed restrictions on campaign speech and campaign spending in judicial elections.
“I realize I have a radical point of view, but I believe in free elections,” Sanders said.
Both took part in amicus briefs in the Caperton case. Wiggins co-wrote one on behalf of 27 current and former state justices in favor of a broader recusal rule.
“The relatively recent phenomenon of substantial independent expenditures in judicial elections has no precedent at the common law,” stated the Wiggins brief. “... the Court should hold that the ancient rule that a judge cannot sit on a case in which the judge is financially interested applies to a case in which a party has provided substantial financial support for the judge’s election.”
Sanders joined with nine other state justices opposed.
“It must be remembered that in states with judicial elections, when a judge is recused, the people’s will is being thwarted,” that brief stated. “Creating appearance-based due process recusals essentially gives litigants a weapon to overturn election results they do not like.”
Sanders suspects the limits on direct donations and now the recusal rule are intended to promote the appointment – rather than the election – of state judges.
“This is brought forward by a guy (Wiggins) who doesn’t believe in electing judges,” Sanders said this week. “This effectively makes judicial elections more difficult.”
Peter Callaghan: 253-597-8657
peter.callaghan@thenewstribune.com
blog.thenewstribune.com/politics
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