Appealing in Nevada : Nevada Appellate Lawyer & Attorney : Tami D. Cowden : Nevada Supreme Court, Ninth Circuit Court of Appeals

What will happen here in Nevada if the U.S. Supreme Court decides that due process requires a judge to recuse if a party had made a sizable donation to the judge’s campaign? While many Nevada judges do currently voluntarily recuse in such circumstances, they are not obligated to do so.  

Arguments were heard yesterday in a US Supreme Court case that could made such recusal mandatory.  Caperton v. A.T. Massey Coal Co.  involved a West Virginia Supreme Court Justice who declined to recuse himself in the coal company’s appeal of a $50 million fraud judgment. The president of the coal company had donated $3 million to electing the justice, who cast the deciding vote to overturn the verdict.  The facts of the case bear some similarity to the legal case underlying John Grisham's The Appeal.

The Petitioners asked the Supreme Court to adopt a rule holding that due process requires recusal by a judge in a case where a party had made a sizable donation to the judge’s election campaign.  Such a ruling could lead to frequent recusals in Nevada cases at every level, especially if donations by counsel were included.

The difficulty of such a rule would be deciding when it applies. No one seemed to suggest that an automatic recusal was appropriate.  Justice Scalia noted that the various amici in the case, including the Conference of Chief Justices, had offered an assortment of standards to be considered. Petitioners urged that a standard requiring consideration of the “probability of bias” be applied.

Comments during the argument on Caperton the Court suggest Kennedy, Stevens, Souter, Breyer, and Ginsburg could form a majority in favor of a rule that required recusal if there was a probability of bias. 

However, the best line from the argument has to be Scalia’s question to Petitioner’s counsel: "You've been around Washington a long time. How far do you think gratitude goes in the general political world?" 

But Scalia followed up that knowing remark with a statement that must surely be considered disingenuous, assuming that an elected judge would think:

that person contributed money to my election because he expected me to be a fair and impartial judge. And I would be faithful to that contributor only by being a fair and impartial judge. That is showing gratitude. I should do what he expected me to do, and I have no reason to think he expected me to lie and distort cases in order to come out his way. What I expected he wanted me to do was to be a good judge, and I'm being faithful to him and I'm -- I'm showing my gratitude by -- by being a good judge

The increased money being spent on state court judicial election campaigns across the country  has sparked considerable concern about the purchase of justice.  But  Massey Coal has rejected any comparisons of its situation with that laid out in John Grisham’s novel of last year, The Appeal, wherein a judicial candidate was handpicked with the pending appeal of huge tort judgment in mind.  See the USA Today article Supreme Court case with the feel of a bestseller.

Read the transcript of the Caperton oral argument here. Find the briefs here.

Hat Tip to law.com. See its report here.

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Hey, somebody had to do it! Fortunately, the somebody is not me.

Harmful Error is taking on the task of providing a seat-by-seat guide to the contested judicial elections.

Today’s race report is for Clark County District Court, Department 10.

First up was a look at the primary race for the Nevada Supreme Court Seat B

As you might expect, Harmful Error, a blog focused on criminal law, reports on the candidates' attitude toward criminal justice,  to the extent possible, such as mentioning endorsements by police associations,  work on indigent representation projects, or the sort of "tough on crime" platituudes often associated with politicians.

But how, I wonder,  might one go about determining a candidate's attitudes toward civil litigation?  (Other than looking at who donated to the campaigns, of couse).

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I’ve never felt so popular in my life. 

For weeks now, I’ve received invitations to assorted parties promising to populated by the movers and shakers of Nevada legal society. Alas, it is not my shining personality that draws these invites, but my bank account 

The invitations are, of course, for judicial campaign fundraisers.  

The campaigns waste their stamps and nicely engraved invitations on me. In fact, there appear to be very unrealistic ideas of what my salary is. I’m not sure, but I think that if I ponied up the “suggested donation” from every request I’ve received so far, I would not have enough left in my paycheck to buy the gasoline to drive to these swank event.  

And why the great need for funds? To pay for advertising, of course. Let’s just hope the ads these donations buy don’t turn as nasty as those used in some recent judicial elections.  

For example, consider the recent race, where the first sitting Wisconsin Supreme Court justice to be defeated in an election in more than 40 years, Justice Louis Butler, was defeated by Mike Gableman. Gableman’s campaign attack ads have been decried as racist and misleading. 

The distortion of Butler’s judicial record included such tactics as flashing images of Butler, an African-American justice, next to those of an African-American child molester.  The ad implied that as a justice, Butler was responsible for freeing the child molester, who subsequently offended again. The ironic truth, however, is that while serving as the man’s public defender, Butler failed to gain his release. The subsequent offense occurred after the man had served his sentence and been released on parole.  Click here for Newsweek’s analysis of the ad campaign.

The fight was nasty enough that more than fifty Wisconsin judges criticized Gableman’s tactics.

Many proponents of judicial elections like to think that these political races aren’t really all that political. After all, judges, and aspiring judges, are surely too dignified to engage in down and dirty mudslinging or dirty tricks, right? Well, it only takes a look at what happened in Wisconsin to implode those utopian fantasies.

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As readers here may know, I am not a fan of selecting judges through election.  Judges have enough to do interpreting law; worrying about whether interpretations are popular or nor should not be a part of that. 

Besides, unlike other  political candidates, judicial candidates aren't safe targets for my ridicule.   At least, not as long as I still represent clients.

But despite my misgivings about electing judges,  I also believe in making the systems we have work as best as they can for as long as we have them.  To that end, I believe information about judicial candidates is a good idea. 

Harmful Error has begun compiling links to candidate websites.  I won't duplicate Jonell's list, but I will try to keep readers informed about events where you can meet candidates--an effort that would be aided, obviously, if people let me know about such events. . .

I am thinking of having a contest for best candidate site.  What do you think?

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The New York Times today has an editorial entitled “The Best Judges Business Can Buy. The editorial cites a new study of campaign contributions to state judicial elections released by the Justice at Stake Campaign, the Brennan Center for Justice and the National Institute on Money in State Politics.  The study reports that victory coincided with the most money raised for the campaign in 68% of the elections in 2006.

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John Fund presented an op-ed in the Wall Street Journal on Saturday, speculating that voter acceptance of increased partisan politics in judicial elections can be explained by judicial decisions that “leave the law stranded.” Fund reports that candidates for state supreme court seats spent more than $40 million in their campaigns in 2006.  In further support of his position,  Fund referenced the famed quote from Chief Justice Robert’s confirmation hearing statement, in which the then-candidate stated “Judges are like umpires. Umpires don't make the rules, they apply them."

The United States of America, as it has from its founding, employs a “common law” system. Black’s Law Dictionary defines “common law as “the body of law derived from judicial decisions, rather than from statutes or constitutions.”  Of course, we have statutory law, as well, but for those of us in civil practice, common law predominates.

Judicial history is a topic rarely, if ever, taught in our primary and secondary schools. As a result, the lack of awareness of the common law system among the general public, and, apparently, journalists,  is not surprising. The average man on the street would likely be stunned to learn that the vast body of civil law in this country comes not from statutes passed by state or federal legislatures, but from centuries of legal traditions brought to these shores from our British forebears. Those legal concepts have passed down through the generations, with each of those generations tweaking and adapting those principles, and developing new principles, as the needs of the populace evolved.

Justice Robert’s apparent unfamiliarity with the concept of common law is less easily explained, as he surely must have been introduced to it at least while he was a law student. In nearly all law schools, the required curriculum is dominated by examination of common law contract, tort, criminal, and property law principles. Any lawyer who expresses surprise at the notion of judges “making law,” rather than merely applying it, must have failed to pay attention in those early years of instruction.  However, in fairness to Justice Roberts, he did acknowledge the concept of precedent in his confirmation hearing statement, even if he apparently didn’t realize that judges have traditionally done more than simply interpret statutory law.

Nevertheless, this longstanding tradition of judge-made law belies the claim that recent sharp increases in campaign spending may be explained by reaction to judge-made law. A far more likely explanation is that well-heeled constituencies have discovered that,  just as with any other type of political candidate, campaign contributions to judicial candidates yield the desired results.

Hat-tip to How Appealing.

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