State courts across the country are caught in a high-stakes, high-priced fight between groups trying to get a handle on large damage awards and others who are concerned consumers and wronged employees are going to be left in the dust.
The struggle is being played out this year in states such as Michigan and Wisconsin, where races for spots on their respective Supreme Courts have drawn millions of dollars in contributions, much of it spent not by the candidates but by business groups, unions and trial lawyers.
"Wisconsin and four other Midwest states ... have become the epicenter of a spreading arms race between corporate interests, trial lawyers, ideological groups and political partisans who are committed to bending judges to their will," said a statement accompanying a report released earlier this year by the Midwest Democracy Network and Justice at Stake Campaign, a Washington-based judicial watchdog group. "It's time for a truce."
Given what's happening as November approaches in many of the 40 contested state Supreme Court races around the country, a truce looks unlikely.
Spending by judicial candidates for the nation's highest state courts races has gone up from $62 million raised between 1993 and 1998 to $165 million between 1999 and 2007, according to the report, raising questions about whether justices can remain impartial when so much money is spent to elect them.
To get around the problem, some states are considering publicly financing judicial races.
Dan Pero, head of American Justice Partnership, makes no bones about the fact that his group wants to get more business-friendly judges on state courts. AJP was set up in 2005 by the National Association of Manufacturers to join with business associations such as the Michigan Chamber of Commerce and Wisconsin Manufacturers & Commerce to play a role in state court races.
"Business groups have engaged because they finally got tired of being slapped around ... and seeing hard work in legislatures overturned by activist courts," Pero said. "That's why you have seen so much attention in the past 10, 20 years from both sides on Supreme Court races."
But the American Association for Justice -- previously the American Trial Lawyers Association -- and some of its state affiliates said it's the pro-business leanings and rulings of some state Supreme Courts that have made unions and trial lawyers so intent on helping non-AJP-backed candidates win.
"Since the multinational corporations and their front groups, like Dan Pero's AJP, can't win through public opinion, they are spending millions on smear campaigns and attempting to just buy courts that will rubber stamp their anti-family agenda," said Jesse Green, spokesman for the Michigan Association for Justice.
The Justice at Stake Campaign, in a study of 2005-2006 state Supreme Court races, reported that business interests donated $15.3 million to those races, 44 percent of the total, and paid for 90 percent of all spending on special interest television ads. Lawyers contributed half as much -- just under $7.4 million -- over the two-year period.
In Michigan, estimates of how much money would be spent by candidates and outside groups in the 2008 campaign at one point ranged as high as $20 million.
Chief Justice Clifford Taylor, the only justice on the seven-member court up for re-election, already has raised $1.5 million this year, much of it from business groups, breaking the old record of $1.3 million that he set in 2000, according to the nonpartisan Michigan Campaign Finance Network.
The Michigan Chamber of Commerce, the Detroit Regional Chamber of Commerce, the Michigan Restaurant Association and the Michigan Association of Realtors each gave Taylor the $34,000 maximum allowed, and several other business groups each gave more than $20,000.
Labor groups and some Democratic party leaders are taking an unconventional approach to fighting back: Instead of just putting a lot of money into ads for Taylor's yet-to-be-named opponent, they drew up a 19,500-word ballot proposal that would, among other changes, shrink the number of state Supreme Court justices from seven to five, cutting two seats held by Republicans -- including Taylor.
Backers say financing the ballot measure would cost less than half of the $10 million they estimate it would take to defeat an incumbent GOP Supreme Court justice. The Court of Appeals this week ruled the measure unconstitutional, but its backers plan to appeal.
In a more traditional race in Wisconsin, challenger Michael Gableman beat incumbent Justice Louis Butler 51 percent to 49 percent in an April 1 contest for the state Supreme Court. It was the first upset of an incumbent justice in the state in four decades.
Although Gableman and Butler spent a combined $1.2 million on the race, outside groups spent $4.8 million, according to the Wisconsin Democracy Campaign.
Those groups included Wisconsin Manufacturers & Commerce, which spent $1.8 million on issue ads supporting Gableman. The Greater Wisconsin Committee and the Wisconsin Education Association Council together spent a similar amount targeting him.
The nasty, expensive campaign was reminiscent of Michigan's 2000 court campaigns, when more than $15 million was poured into the race by six candidates and outside groups. In a trend mirrored in other states, Michigan saw outside groups pay for 51 percent of the ads aired in Supreme Court races in 2002, a percentage that grew to 87 percent in 2006.
The Justice at Stake Campaign would like to see more disclosure on who's providing the money that outside groups spend on behalf of judicial candidates, as well as a requirement that justices recuse themselves from cases where their donors are involved.
"The thinking is, if you took away the financial incentives for having your judges on the court, you would dry up the money," said Justice at Stake Campaign spokesman Charlie Hall.
West Virginia just passed a law that requires full disclosure of who's contributing to ads that would affect campaigns, but few others have followed its example.
Butler, who lost his seat on the Wisconsin bench earlier this year, said it's time for more states to pass such laws.
"Third-party issue groups who don't have to be accountable, don't have to follow campaign laws and don't have to disclose their donors siphoned huge amounts of money into this race," he said in his concession speech. "I've said it throughout the race: This system is broken."
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