The Pennsylvania Supreme Court has issued new judicial ethics rules requiring judges to step down in cases involving big campaign contributors. Pennsylvania joins a small but growing group of states in which ethics rules address campaign cash from lawyers and litigants. The Pennsylvania high court in recent years has seen charges of nepotism and an abuse of power scandal which ended with criminal charges and house arrest for a former justice. The public recently learned that two justices had hired their wives for top administrative jobs, and the new rules also prohibit the hiring of relatives.
Elections for the Pennsylvania high court have long been among the most expensive in the nation. Candidates in 2009 raised more than $5 million, with more than $1 million each from the state Republican Party and the Philadelphia Trial Lawyers Association. Former Republican Justice Joan Orie Melvin — who was under house arrest for requiring court employees to work on her reelection campaign — was elected in 2009 with the help of almost $100,000 from Christian conservative and anti-choice groups. Melvin’s campaign received money from the Eagle Forum (founded by far right, anti-choice activist Phyllis Schafly) and $65,500 from John Templeton, Jr., an evangelical Christian whose organizations are devoted to, among other things, arguing against evolution and protecting “the sanctity of life.” Templeton and his foundation gave nearly $400,000 to Pennsylvania judicial candidates in 2007.
In 2011, Justice Melvin dissented from a decision which overruled a lower court’s refusal to waive the state’s parental notification requirement for minors seeking to terminate their pregnancies. Justice Melvin argued the judge was justified in finding that the minor lacked the requisite “maturity” because she had failed to ask her parents for permission to have an abortion. (The lower court judge refused to recuse himself after receiving endorsements and campaign contributions from anti-choice groups in the 2009 election.) The majority held that the courts must respect the legislature’s “policy decision not to require parental consultation” in all cases, but Justice Melvin and her campaign contributors disagreed.
Advocates for fair and impartial courts have long decried the conflicts of interest resulting from judicial campaign cash. For example, Pennsylvanians for Modern Courts warned that the “the rates of recusal” due to campaign contributions are “incredibly low.” The group said, “In fact, no state courts have found judges in error for refusing to recuse solely on the basis that a lawyer or litigant was a campaign contributor.”
The new ethics rules may change that. The rules demand that judges recuse themselves if a litigant, a lawyer, or a lawyer’s firm gave a contribution in “an amount that would raise a reasonable concern about the fairness or impartiality of the judge’s consideration.” Unfortunately, the rules do not specify an amount which would trigger mandatory recusal, but they are more specific than the rules in almost every other state.
The rules allow the parties to waive the recusal requirement and concede that the “rule of necessity” could override the recusal requirement if the judge is “the only judge available in a matter requiring immediate judicial action.”
Depending on how they are interpreted, Pennsylvania’s new rules could also include independent expenditures from outside groups that run ads supporting or attacking judicial candidates. The rules define “aggregate” contributions as those made “indirectly with the understanding that they will be used” for taking a position on a candidate.
In the wake of the U.S. Supreme Court’s 2010 ruling in Citizens United, independent spending has played a key role in judicial elections around the country. The 2012 election for the North Carolina Supreme Court saw independent groups spend “more than $3.5 million” supporting the conservative incumbent — far more than the candidates spent.
In 2004, Coal mogul Don Blankenship spent nearly that much in West Virginia on independent groups which ran ads for a Republican justice who then cast the deciding vote to overturn a $50 million verdict against Blankenship’s company, Massey Coal. The U.S. Supreme Court ruled that this blatant conflict of interest violated the rights of the small business which had sued Massey Coal, and the Court invited states to institute “more rigorous standards for judicial disqualification” than the federal constitution.
While Pennsylvania has taken a promising step toward addressing judicial campaign cash, other states are taking a different approach. The North Carolina legislature recently eliminated a system in which appellate court judges heard ethical complaints against the high court justices and replaced it with a system in which the justices judge themselves on ethical issues.
In 2010, the 4–3 conservative majority on the Wisconsin Supreme Court voted to roll back their recusal rules and adopt a rule suggested by the Wisconsin Realtors Association and Wisconsin Manufacturers and Commerce, a group which spent nearly $1 million to reelect Justice David Prosser the following year. The new rule says that campaign cash can never be the basis for recusal.