John Grisham wrote a bestselling novel in 2008 titled The Appeal. A sordid tale of corporate evil and judicial elections, it quickly topped The New York Times best-seller list. Although Grisham denied it, many felt that the fictional work was based on the quite real life story of alleged corruption in a judicial election in West Virginia.
That case (Caperton v. A. T. Massey Coal Co.) involved the owner of a mining company, Hugh Caperton, who obtained a $50 million verdict against the Massey Coal Company. Massey appealed, and while the case was on appeal, its CEO contributed more than $3 million to the election campaign of an opponent to a sitting Justice on the West Virginia Supreme Court. The opponent won, and when the case came before the West Virginia Supreme Court, Caperton requested that he recuse himself. He declined and ultimately joined a 3-2 majority overturning the verdict. The recusal issue was brought before the United States Supreme Court and Justice Kennedy, writing for the majority, labeled the appearance of conflict of interest as “extreme,” holding that the West Virginia judge should have recused himself.
In 2010, retired Supreme Court Justice Sandra Day O’Connor decried “increasingly expensive and negative campaigns for judicial office” that undermine public confidence in the impartiality of the judiciary. The Washington Post seized upon that pronouncement to call for a ban on contested judicial elections in Maryland: “For judges, drumming up campaign money – often from lawyers who appear before them – and marketing themselves undermines the perception of impartiality . . .” Attorney General Douglas Gansler was reported to be proposing to replace contested elections for circuit court judges with retention elections.
Also in 2010, the United States Supreme Court decided the Citizens United v. FEC case, unleashing virtually unlimited independent spending on elections. Not surprising, spending on judicial elections also skyrocketed. Independent spending (as opposed to spending by political parties) exceeded $15 million in state high court races in the 2011-12 judicial election cycle, a 50 percent increase over the previous record. Much of that increased spending came from national groups unrelated to the candidate or the state. The infamous Koch Brothers, based in Wichita, Kansas, and their affiliated groups reportedly spent over $122 million on elections across the country in 2012. Among those elections was a failed effort to unseat three Florida Supreme Court justices, as well as judicial elections in Louisiana and Texas. According to the New York Times, groups not connected to candidate campaigns paid for more than half of all television ads run in state high court races in 2012.
Maryland has contested elections in our Circuit Courts, but we have been lucky. Out-of-state interests have not (yet) aggressively targeted our judicial elections. That is not to say that we have not suffered some of the corrosive effects of contested judicial elections. Practicing lawyers are regularly solicited on behalf of judges running for election, including sitting judges before whom they regularly appear. Allegations of electioneering wrongdoing by both sitting judges and challengers have been filed with the Maryland Judicial Campaign Conduct Committee. The lay public increasingly sees no distinction between political and judicial elections, making claims of judicial impartiality ring hollow when they appear in court before the campaign victor. Now, the problem is rearing its head again, with eight upcoming contested Circuit Court elections.
The MSBA has opposed contested judicial elections for more than 30 years. Our District Courts, our Court of Special Appeals, and our Court of Appeals have functioned with distinction and public confidence without contested elections. So should our Circuit Courts.