WASHINGTON, October 2, 2016 — Judges are supposed to be one hundred percent completely impartial. When money is involved in placing a judge in his or her seat, however, legitimate questions can be raised that challenge that impartiality assertion.
In Illinois now, a class action lawsuit involves allegations that State Farm Insurance Company essentially bought a judge to have a verdict of over $1 billion against it reversed. The case began in 1999 when State Farm customers won at the trial level on claims that generic car parts of lower quality than original equipment were used in violation of their insurance policies. The verdict in their favor amounted to more than $1 billion against the insurance giant.
On appeal, however, the Illinois Supreme Court threw out that award in 2005, the year after Judge Lloyd Karmeier was elected to a seat on that court in 2004. The current lawsuit alleges that State Farm provided significant financial backing to the judge’s election and claims that State Farm officials lied in court filings about backing Karmeier for the court position.
In granting State Farm customers the right to continue this lawsuit, U.S. District Court Judge David Herndon said the insurance giant’s customers could move forward with their claims that State Farm and others worked to “secretly subvert the judicial process and deprive plaintiffs an impartial forum.”
The judge, now the Chief Judge of the Illinois Supreme Court, is not named as a defendant in the lawsuit.
Attempting to buy or influence judges is not exactly a new phenomenon.
In 2007, the West Virginia Supreme Court threw out a $50 million damage award against the owner of a coal company. The man liable for those damages spent $3 million to help elect the judge who cast the deciding vote. The United States Supreme Court overturned the WV Court in 2009, reinstating the verdict and the obligation to pay. This was a case everyone called “egregious.”
Despite the U.S. Supreme Court holding that “this kind” of “justice-for-sale” bribery had no place under the U.S. Constitution, the dissent position by four of the Justices (Scalia, Thomas, Alito and Chief Justice Roberts) argued that there was “no problem” when a wealthy businessman literally buys a judge, and that overturning the case would encourage “groundless” charges that other judges are biased.
In 2011 several groups (the National Institute on Money in State Politics, the Justice at Stake Campaign, and others) published a study about who is spending money on judges. Not surprisingly, the biggest spenders on judges’ campaigns — clearly trying to buy their version of justice in an effort to influence those judges’ future rulings — are big business, insurance companies and corporate lobbyists. The study noted that disclosure laws are weak in many states, providing special interests the ability to heavily influence judicial elections without the public ever finding out.
The study further states what should also be obvious, namely, the reasons for the expenditures. Big business wants reduced or eliminated enforcement of laws against discrimination and pollution. Insurance companies want judges to rule against people who have been injured – even when they deserve compensation – and insurers want damage awards to be reduced.
Depending on the individual state, there are currently five main methods dictating how judges get to be judges. Two of those methods involve election by the general public, and it logically follows that money is spent in these election processes.
The five methods are:
- Partisan election — Judges are elected by voters with the judge’s party affiliation identified on the ballot.
- Non-Partisan election — Judge candidates’ names are listed on ballots without party affiliation.
- Legislative elections — Judges are selected by state legislature.
- Gubernatorial appointment — State governors appoint judges. In some cases, the judges must be then approved by the state legislature.
- Assisted appointment — A nominating commission reviews qualifications of judicial candidates and gives a list to the state governor, who appoints a judge from the list. Once their initial term is over, a “yes-no retention” election takes place to determine each judge’s continuing tenure.
Supreme Court justices in 38 states either earn their seats or maintain them by popular vote.
In a 1996 speech, U.S. Supreme Court Justice Sonia Sotomayor said
“We would never condone private gifts to judges about to decide a case involving the gift-giver’s interest, yet, our system of election financing permits extensive private, including corporate, financing of candidates’ campaigns, raising again and again the question what the difference is between contributions and bribes.”
During the 2013-2014 elections, extensive television ads were run in Alabama focusing on justice themes. Even without directly funding campaigns for judges, groups found that the expenditures on these ads could influence some of the judges. Judges in Alabama are allowed to overturn a jury’s decision if a jury votes against the death penalty in a criminal case. Data confirmed that judges in Alabama overturned a high number of “no death penalty” verdicts of juries. During the election cycle, television ads run by judges talked about the number of people they sentenced to death.
One voice of integrity – again, Supreme Court Justice Sonia Sotomayor:
“The only answer that is supported by empirical evidence is one that, in my view, casts a cloud of illegitimacy over the criminal justice system in Alabama; the judges, who are elected in partisan proceedings, appear to have succumbed to electoral pressures.”
This citizen embraces and applauds the election process of our country if it is not inappropriately tainted by money. This attorney does not know any judge whose impartiality has been compromised by money. But, it does happen.
Needed: campaign finance reform, even for the judiciary.
Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980. He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website.
His book “The 8 Critical Things Your Auto Accident Attorney Won’t Tell You” can be instantly downloaded, for free, on his website: http://www.samakowlaw.com/book.
Samakow has now also started a small business consulting firm. His new book “Step By Step, Achieve Small Business Success” is available at www.thebusinessanswer.com.
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