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Originally published March 2, 2009 at 12:00 AM | Page modified March 3, 2009 at 11:36 AM

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Judges should recuse themselves from cases involving campaign benefactors

The U.S. Supreme Court should reverse a lower court ruling in the case of Caperton v. Massey, argue retired Washington Supreme Court Justice Robert Utter and attorney Charlie Wiggins. In the case, a judge who received $3 million in campaign funds from the defendant refused to recuse himself. They also support the Washington State Supreme Court adopting a rule to prevent this thing from happening here.

Special to The Times

Should a supreme-court judge hear a case in which the chief executive officer of the company being sued spent $3 million to help elect the judge?

The U.S. Supreme Court is considering the question in Caperton v. Massey, in which a judge who benefited from $3 million in support refused to withdraw from the case. He then voted with two other judges to reverse a $50 million jury verdict against the company. The court will hear argument Tuesday and decide by the end of June whether the judge's participation in the case violated the due process right to an impartial judge.

Eight hundred years ago, King John promised the English barons in the Magna Carta, "To none will we sell, to none will we deny, to none will we delay right or justice." This promise of absolute impartiality has become the bedrock of the American system of justice. Justice Sandra Day O'Connor wrote in the 2002 decision Republican Party of Minnesota. v. White, "Even if judges were able to refrain from favoring donors, the mere possibility that judges' decisions may be motivated by the desire to repay campaign contributors is likely to undermine the public's confidence in the judiciary."

Studies have shown three out of four Americans believe that election contributions affect judges' decisions. Even if the Caperton judge were totally impartial, remaining on the case creates the perception that the justice could not possibly remain impartial. The Goddess of Justice is always portrayed as blind, emphasizing her complete impartiality.

Could this problem occur in Washington? Unfortunately, yes. Spending for Washington Supreme Court elections has skyrocketed in recent years. From 1990 to 2002, total spending by all candidates never exceeded $1 million. In 2004, total spending reached $1.2 million, and in 2006 almost quadrupled to $4.6 million. Spending dropped back down below $1 million in 2008, undoubtedly because of record spending on the presidential and governor's elections. But it could easily soar again in the future. Judicial campaign spending in other states has increased as well, particularly for television advertising.

A proposed Washington state court rule now under consideration would require a judge to step down from a case if a party provided the judge with substantial campaign support. The rule is based on totaling all money spent by a party (or a party's lawyer) to support a judge's election.

Three sources are totaled — direct contributions to the judge's campaign committee, independent expenditures and contributions to political action committees. If total support exceeds the limit established by Washington law and the opposing party files a motion, then the judge must remove himself or herself from the case. The rule would have required the judge in Caperton to step down from the case. The Washington Supreme Court should adopt the rule to avoid a fiasco like the Caperton case.

Justice must appear to be fair as well as actually being fair. The U.S. Supreme Court should reverse the Caperton case and the Washington Supreme Court should adopt the proposed rule to prevent such a situation from arising here.

Justice Robert Utter served as a judge on the King County Superior Court, the Court of Appeals, and the Supreme Court and as President of the American Judicature Society. He retired in 1995. Charlie Wiggins served as a judge on the Court of Appeals and now practices law with Wiggins & Masters on Bainbridge Island.

Copyright © 2009 The Seattle Times Company

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