In a landmark U.S. Supreme Court case, Michigan Supreme Court Justices Robert Young Jr. and Maura Corrigan argued against rules to disqualify judges from hearing cases involving major contributors their election campaigns.

Republican Justice Robert Young Jr. is now up for reelection and is expected to benefit from millions of dollars in advertising paid for by business groups.
He has strongly protested any limits on how much an individual or a business could contribute to his own election campaigns before he would be expected to disqualify himself from hearing a case involving that contributor.

Young and Corrigan filed a brief in a 2009 suit filed against Don Blankenship, the CEO of Massey Energy, who has recently come under national scrutiny after an explosion at the Upper Big Branch mine in West Virginia killed 29 workers. Massey Energy supplies coal to DTE Energy and shares a Board of Directors member with CMS Energy, Michigan’s two largest power companies.

Blankenship buys a judge

Facing a $50 million dollar jury verdict in a 2002 fraud case brought by a smaller mining company, Blankenship funneled $3 million into ads supporting the state supreme court campaign of a relatively unknown candidate, Brent Benjamin, during the 2004 election.

The bulk of the money went to an organization called And for the Sake of the Children, which purchased ads on Benjamin’s behalf. Altogether Blankenship’s $3 million in contributions were three times the amount spent by Benjamin’s own campaign.

When Benjamin was elected, Blankenship appealed the jury’s verdict and, despite widespread outcry about the perceived conflict of interest, the judge he had spent so much money to get elected cast the deciding vote to overrule the lower court’s decision.

The plaintiffs in the case, Caperton, insisted that Benjamin should have recused himself and they filed a federal lawsuit arguing that the situation had denied them due process. The U.S. Supreme, in a 5-4 opinion, ruled in Caperton’s favor.

Young, Corrigan argue on behalf of Blankenship

Most of the state supreme court judges who weighed in on the matter said that they believed ruling on a case involving a major campaign donor created the clear appearance of impropriety — but not Young and Corrigan. They filed a brief in the case arguing that there should be no limits at all on how much money a judge could receive in aid from a party to a case before they had to recuse themselves.

Young and Corrigan argued that the money would not affect their judgment and that creating standards for recusal would be impractical. “Elected judges have traditionally been accorded the strong presumption of integrity,” they argued, “and the fact that recently more money has been spent on judicial elections should not change that.”

Former Michigan Chief Justice Cliff Taylor also signed on to that letter.

The U.S. Supreme Court disagreed with this reasoning. The majority opinion, written by Justice Anthony Kennedy, concludes that there is “a serious risk of actual bias – based on objective and reasonable perceptions – when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”

Third-party spending in judicial races skyrockets

Michigan is one of 38 states that elect their Supreme Court justices and in recent years the races have become far more expensive, with spending on third party issues ads outstripping direct campaign expenditures. An issues ad is one that is clearly designed to sway voters for or against a candidate but does not actually declare an endorsement.

The rise in issues ad spending in Michigan has coincided with a strategy by the U.S. Chamber of Commerce, begun during the 2000 election, to funnel funds from member businesses into political advertising.

According to the Wall Street Journal (on 9/11/2001, of all days), “Wal-Mart Stores Inc., DaimlerChrysler AG, Home Depot Inc. and the American Council of Life Insurers all kicked in $1 million each for one of the chamber’s special projects: a TV and direct-mail advertising campaign aimed at helping elect business-friendly judges. The participants had all been targets of costly lawsuits, and the chamber’s campaign gave them a way to fight back — without disclosing their identities.”

The Journal reported that during the 2000 election the U.S. Chamber of Commerce — whose board of directors includes Don Blankenship — spent more than $5 million on judicial campaign ads in state supreme court races in Michigan, Mississippi, Ohio, Indiana and Alabama. Since then each election has seen more and more issues ads funded by business and other special interest groups.

According to the non-partisan advocacy group Justice at Stake, in 2004 five candidates for the Michigan Supreme Court raised slightly over $1.6 million, while independent groups spent $1.8 million on TV advertising. In 2006, Justice Maura Corrigan received more on-air advertising support from third party groups than she raised for her own campaign.

The Michigan Campaign Finance Network estimates $14.3 million was spent on candidate focused television ads during Supreme Court campaigns from 2000 through 2008 — more than the amount raised by the candidates in their campaign committees.

During that period Michigan’s Supreme Court, led by Chief Justice Cliff Taylor, on whose behalf the Michigan Chamber of Commerce spent an estimated $1.7 million on issues ads in his 2008 election, developed a reputation as the most business friendly in the nation.

Michigan Supreme Court sets new rules for judges

Michigan was in the process of considering new rules for judicial recusal even before the Supreme Court ruling in Caperton v. Massey, but that ruling helped shape the final result. Under the old rules, a justice whose impartiality was challenged by one of the parties in a case before the court determined on their own whether they would recuse themselves or not, and they did not have to explain their reasons.

Under the new rules, passed despite no votes from Young and Corrigan, the justice must issue a written ruling explaining their decision and the challenging party can then appeal the decision to the full court, which will then hold a vote on the question and must also issue a written decision explaining their conclusions.

Young and Corrigan are so adamant in their opposition to any rules that require a justice to disqualify themselves in the case of a clear conflict of interest that a few weeks ago they both refused to participate in a hearing over whether a fellow judge should recuse themselves in a case.

But as the plaintiffs in the Caperton case argued in that case, it is “a part of human nature for a judge to be biased in favor of a party whose CEO facilitated his election through massive campaign expenditures that were larger than the combined amount spent by all of the judge’s other supporters.”