As noted in this paper and other media, it appears that there may be a trend toward the increased politicization of probate judge races. Probate judges are the only judges I know of who are elected in our system. While the idea of donating money to judges or their party’s campaign committee may be foreign to us, it is common in states where all judges are required to seek election to obtain or retain office. This has led to cases where the fairness and impartiality of certain judges has been called into question when there appears to be congruence between political donations and favorable court decisions.

The most celebrated of these decisions was the 2009 U.S. Supreme Court case of Caperton v. Massey. There, the court was presented with a record revealing that a principal of one party to litigation before the West Virginia Supreme Court involving a $50 million judgment had spent $3 million getting one of the justices elected. In their ruling, the SCOTUS justices advanced the notion that if you give a judge too much money, you might violate your opponent’s constitutional right to fair and impartial justice. Seems like a no-brainer, though the U.S. Supreme Court did take pains to note that it was not saying you could never give money to a judge who was considering your case, just not too much, and articulated some factors to be considered, such as how much you gave versus the whole campaign treasury of the judge. Not a really bright line.

There is actually an ethics rule on this topic, found in the American Bar Association Model Rules of Professional Conduct as Rule 7.6. This rule prohibits lawyers from donating to or soliciting donations for a judge in order to obtain favors, such as an appointment as a “referee, commissioner, special master, receiver, guardian or other similar position.” Both the rule and the commentary note that participating in the political process is a constitutional right that is enjoyed as much by lawyers as by any other citizens, but that donations tied to a quid pro quo, where the lawyer or her firm gives in order to get something in return, might impair the public’s faith in the justice system.

Hmmm. That seems logical and hard to argue with, but how do I judge how the public is going to perceive my motives in, or the judge’s reactions to, a particular level of giving? Do I need to study the campaign finance filings of the judge and try to guess whether my donation is appropriately modest and proportionate that I will be treated no better or worse than any other litigant? What about if I know I am going to be involved in a case before a certain judge with a lawyer from a different part of the state who would not be likely to donate to my judge’s campaign? Do I have to refrain from donating anything to preserve the appearance of impropriety or favoritism? Considering how little esteem much of the public has for lawyers, won’t a donation of any sort or amount likely be perceived as corrupting?

While Connecticut’s campaign laws do restrict individual donations for probate judges to a fairly modest level, the possibility of “bundling,” where a supporter gets many friends and family to donate the maximum personal donation to a particular candidate, has been an effective work-around for this legislation in other fora such as federal campaigns.

When I was Connecticut’s chief disciplinary counsel, I actually received a complaint from a lawyer who objected to another lawyer who had sent around an e-mail invitation touting a certain probate judge’s good qualities and inviting his colleagues to a fund-raising party. He felt the lawyer was trying to curry influence. If lawyers view donating to judges this way, won’t the public certainly think the same, or worse?

I heard a story that might be apocryphal, but which clearly illustrates my point. In a southern state, a judge about to commence a bench trial announced in open court that both opponents had donated to his recent campaign. One had donated $10,000 and the other fellow only $5,000. The judge then gave the more generous lawyer a check for $5,000, announcing, “Sir, you overpaid.” He then commenced the trial.

Some might argue that we should make all judge appointments based on merit rather than electoral results, arguing that this removes the problem of campaign donations corrupting the process. Others argue that the merit appointment system is no less political than the electoral one, just more opaque. And some argue that the only way citizens can have any say in how the judicial branch works is by giving them an electoral veto which can be exercised if a judge ventures too far off the reservation.

I suppose the perfect solution is the public financing of all elections. That idea never seems to get much traction, but maybe for judicial elections it would solve more problems that it creates.•