Attorneys Help Bankroll Campaigns Of Judges Who Hear Their Cases
George Gibbs is no stranger to District Judge Linda Morrissey’s courtroom.
The founding partner of the Gibbs Armstrong & Borochoff law firm has spent much of his career litigating in Tulsa County, where Morrissey has been a district judge for 22 years.
Gibbs is listed as an attorney in four cases that went before Morrissey in the past two years. One is an open case where Gibbs represents a Tulsa bar’s holding company being sued for at least $150,000 for alleged negligence and civil liability.
In January, while the case was active, Gibbs made a $2,700 contribution, the maximum allowed, to Morrissey’s re-election campaign, making him one of the judge’s top donors this election cycle.
But that judge-donor relationship didn’t prompt changes in any of the four cases, such as Morrissey recusing herself or Gibbs removing himself from a case.
Judges rarely recuse themselves voluntarily or on request because they received money from attorneys arguing before them, according to interviews and a review of court records. That is despite the fact that attorneys represent the largest number of donors to district judges’ campaigns.
An Oklahoma Watch review of campaign finance records shows that attorneys’ donations represented more than half of the $1.6 million in contributions from individuals to district judge candidates so far in this election cycle (through Aug. 13).
Court filings show many of those attorneys frequently have appeared in court before the candidates to whom they gave money; some donated to judges while the judge was still presiding over their case.
No evidence has emerged that donations from lawyers gained them or their firms more favorable rulings or treatment from judges. But national campaign finance reform advocates, along with some Oklahoma judicial candidates, say the state’s system of electing district judges poses a risk to the integrity of the court system.
“One of the drawbacks for states like Oklahoma that elects judges is these conflicts of interests that come with who supports judicial candidates,” said Douglas Keith, counsel at the Brennan Center for Justice at the New York University School of Law. “The question isn’t just if an actual conflict exists. What matters is the perception and what the public may think.”
Many in the legal community, including Gibbs, say current judicial procedures and state ethics rules provide enough safeguards to protect the court system from any tainting by campaign donations.
“Our state judges are more impartial, have better temperaments and are more fair than federal judges,” Gibbs said. “No judge is going to risk their career, their standing and their reputation over a donation.”
Before 1967, justices for the Oklahoma Supreme Court and judges for other appellate courts ran for election.
But an explosive scandal in which several Supreme Court justices were accused of accepting bribes led to dramatic reforms. A Judicial Nominating Commission was created to screen prospective judges and submit names to the governor for appointment.
Those justices and judges are on the ballot for retention votes. Because no statewide judge has ever been removed through a vote, these votes rarely attract attention or campaign donations.
But Oklahoma’s 75 district court judgeships remain elected positions. Sitting judges and judicial candidates must run for election or re-election every four years.
The campaign process mirrors that of other state offices, with exceptions: The races are nonpartisan, and candidates are banned from directly soliciting donations or discussing specific issues or cases. Other campaign fundraising rules are the same, including the ability to accept contributions up to $2,700 per person.
Oklahoma Watch’s review of candidate filings, which includes donors’ self-reported job types, shows lawyers have given more than $840,000 to the 61 judicial candidates who accepted at least some donations from Jan. 1, 2017, to Aug. 13, 2018.
The next largest contributors were identified as retired ($102,732), followed by owners/managers ($62,716), homemakers ($38,047) and physicians ($26,473). Judicial candidates typically receive tens of thousands of dollars in campaign donations; some have received more than $100,000.
John Williams, president of the Oklahoma Bar Association, said the numbers for attorney donations aren’t surprising.
Since judicial candidates are barred from directly soliciting donations, they usually ask people who are close to them to solicit on their behalf.
“If I’m a lawyer running for judge, it’s likely most of my friends will be lawyers, too,” he said. “And a lot of lawyers, as private citizens, are involved in a lot of things, like fundraising, capital campaigns and that type of thing, so it’s not unlikely that they would hit up lawyers for that as well.”
Several attorneys, including Gibbs, said they are in a unique position to influence who sits on the bench.
Gibbs said it is hard for the average citizen to know which judge to vote for since laws prohibit judicial candidates from running on a partisan basis or publicly expressing their views on issues.
The result is that lawyers, who often know the judges well, are usually the best sources to assess who should become or remain a judge, he said.
“How are (average voters) going know who are the good judges?” Gibbs said. “Attorneys know far better than the public about who is fair, honest and impartial.”
But not everyone in the legal community believes attorneys should have that much sway in choosing judges.
Misty Fields, an indigent-defense attorney who is running for district judge for Craig, Mayes and Rogers counties, said the cozy relationship that donations can create between an attorney and judge or prospective judge makes her uneasy.
She said this prompted her to send a letter to local attorneys stating she was asking for their vote, but not “for public support of any kind.”
“I think it puts us in a weird position,” she said in an interview.
Fields said she doubts any judge would put their career or reputation on the line by making a court decision based on whether someone gave them a few thousand dollars.
But anything that could potentially tip the scales should be scrutinized, she said. She would err on the side of caution and recuse herself if a potential conflict of interest with a donor arose, she added.
“I think judges are human and, of course, there is the potential for (unethical behavior),” she said. “When I started to run, I didn’t even want to see who was donating to me. But realistically speaking, that’s really hard to do.”
Fields, like most judicial candidates, hasn’t gone so far as to refuse all donations from attorneys.
“I would be remiss to say money doesn’t matter,” she said. “You can only do so much with free social media and you can only knock on so many donors. It’s a sad part of it, but you need some money if you want to blanket an area with signs or newspaper ads.”
When to Recuse
Campaign finance records show 1,380 attorneys have donated to judicial campaigns so far this year.
Most of those contributions were small amounts, with half of the attorneys donating $250 or less.
But at least 44 attorneys gave between $2,000 and $2,700 to at least one candidate. Of those, 40 percent, or 18, had argued before a judge to whom they donated within the last two years.
In every case where the donation came before the case was finalized or while it was still open, court dockets didn’t show any recusals.
The state doesn’t track the number of times that judges recuse themselves or are taken off cases because one of the attorneys or parties donated to the judge’s campaign. But several lawyers said such recusals are rare.
“I don’t recall every seeing it in Garfield County,” said Russell Singleton, who is challenging District Judge Paul Woodward for the Enid-based seat. “I personally haven't seen it here or any other county for that matter.”
It’s not unprecedented, though, for a judge to be removed from a case because of campaign donations from an attorney.
In 2001, the Oklahoma Supreme Court ruled in a split decision that a judge should have been disqualified in a divorce case when objections arose over two $5,000 donations (the maximum allowed at that time) from the attorney and the attorney’s father.
The high court said the two contributions, and evidence showing the attorney solicited other donations on the judge’s behalf, were enough to disqualify the judge in the case.
But the court refused to set specific criteria for recusal or removal of a judge. Instead, it said disqualification is appropriate when a judge’s impartiality might reasonably be questioned.
The advisory panel had said the mere fact that an attorney donated to a judge’s campaign isn’t sufficient grounds for disqualification.
Williams said there are additional safeguards to protect the judicial system’s integrity, including appealing a judge’s decision not to take recusal.
“If there are any concerns, there is a next level to go up to,” he said.
But Keith, the judicial ethics expert, said these subjective standards are problematic because they leave the issue up to interpretation. He said clearer standards for recusal, which a handful of states have enacted, would give the public more reason to trust the process.
“I think right now there is a stigma attached to recusal since judges don’t want to admit that there is even the possibility that they might be biased,” he said. “But I think a recusal should be worn as badge of honor because that would show they respect the system and their commitment to independent review.”
Alternatives to Donations
Other states have taken steps to eliminate or reduce the potential for conflicts of interest related to campaign donations to district judges.
In 23 states, district judges are not elected by popular vote; rather they are appointed, as are Oklahoma’s appellate courts’ justices and judges.
Williams said the state Bar Association has in the past suggested moving to this method for Oklahoma’s two biggest counties: Oklahoma County and Tulsa County.
But there have been no notable legislative efforts in recent years to take up these proposals.
Some states with elected judges have experimented with allowing judicial candidates to opt into a public financing system in which they receive taxpayer funds in exchange for not raising money on their own.
The data is limited on how successful this has been, as only New Mexico and West Virginia offer this. But Keith cited a study that examined judicial behavior in North Carolina when it briefly allowed public financing in judicial races. It suggested that “public financing reduced responsiveness to donors among participating justices.”
That change would require state funds, which makes it less likely to get traction in the Oklahoma Legislature.
Lawmakers, however, have fought for a smaller change that they say could enhance integrity in the court system.
The Ethics Advisory Panel now encourages judges to disclose to all parties involved in a case when someone tied to the case has donated to their campaign. But there is no specific requirement to do so.
A bill filed in 2014 would have added a law requiring judges to disclose any campaign contributions connected to a case. The proposal didn’t make it out of committee and hasn’t been considered since.