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Should campaign money mean judges ' recusal?

ATLANTA --- A federal court ruling and pending state legislation could mean judges may be removed if there is the appearance of bias in favor of contributors to their campaigns.

The ruling and the legislation stem from a lawsuit in Boone County, W.Va., in which the supreme court there considered the appeal of a $50 million judgment. The chairman of the one of the coal companies involved pointed $3 million toward the campaign of a justice on the state's top court.

When that justice rejected three requests to step aside and then ruled in favor of his contributor, he became a national poster boy for judicial bias. In an appeal to the U.S. Supreme Court, he triggered a 5-4 ruling that called for the recusal of judges where there is the appearance of bias.

Supporters of the ruling, like state Rep. Edward Lindsey, R-Atlanta, say that keeping up appearances is necessary for the judicial system to have any credibility with the public.

After all, if people don't think judges are playing fair, they'll be tempted to institute their own ideas of justice as society completely breaks down, which could come in the form of payoffs or, in the extreme, vigilante justice.

The U.S. Supreme Court said judges should have some sort of standard to help them decide when to bow out of a case, but the nation's highest court didn't provide what the standard should be.

Mr. Lindsey figured he'd write one. As co-chairman of the House GOP Policy Committee, he's in a position to see it passes.

His House Bill 601 would require a judge's recusal if the parties on one side of a case gave more than the current limit for individual contributions within two years of the judge's most recent campaign. Georgia law allows contributions up to $3,000 for superior and state court races and $8,000 for appellate contests.

Making independent expenditures above those limits for the judge's campaign or against the opponent would give the other party in the case the right to request a recusal.

What about trying to force a recusal of an unwanted judge by contributing on his behalf instead of against him? Mr. Lindsey says his bill would prevent that by giving the other party the right to move for recusal.

At a meeting of the Atlanta chapter of the Federalist Society last week, Joe Fleming, chief lobbyist for the Georgia Chamber of Commerce, suggested another reform.

"Current law in Georgia says I can literally write a check to the judge's campaign during a court recess," he said.

Mr. Fleming suggested some limit, similar to the prohibition against partisan state officeholders' accepting contributions when the General Assembly is in session.

Another voice at the meeting suggested the whole notion of a written standard amounted to intellectual dishonesty by inferring that judges aren't already able to overcome perceived biases.

Shannon Goessling, the executive director of the Southeastern Legal Foundation, implied that Mr. Lindsey's bill or other prohibitions would only amount to window dressing.

"My first case, I come into court and the other lawyer calls the judge Jim," she said. "I'm thinking my case is already sunk. How am I going to compete as a young lawyer with someone who knows the judge as Jim?"

Campaign contributions can be quantified and documented, but not personal friendships, philosophical orientation or even a silent grudge. Competent judges are able to put those things aside, she said.

It's not just that legislating a standard is unnecessary, she said, it is also dangerous. First, it creates another reason for appeals meant to delay the conclusion of a case. Second, it could stifle free speech if someone decides not to contribute to the campaign of a judicial candidate out of fear that electoral success could ultimately mean failure in the courtroom because of mandatory recusal.

After all, what's the point of helping elect someone who could be a good judge if that person would have to defer from presiding on an important case?

In recent years, judicial candidates in Georgia who drew the biggest donations from special-interest groups or who had the fieriest political ads have all lost. That might not always be the case, and then, heated campaigns might spill over into courtrooms, as it did in the West Virginia suit.

Walter Jones is the Atlanta bureau chief for Morris News Service and has covered Georgia politics since 1998. He can be reached at walter.jones@ or (404) 589-8424.

Web posted on Thursday, October 08, 2009

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