Change judicial selection to reduce potential impropriety

There’s a better way to address the stench of pay-to-play concerning Louisiana’s judiciary, so intended legislation to deal with a campaign finance loophole needs to reform far beyond campaign finance parameters.

One big criticism of the questionable lawsuit filed by the Southeast Louisiana Flood Protection Authority – East that alleges broken contracts between oil companies and authorities is that the contingency fee arrangement – also questionably granted by Atty. Gen. Buddy Caldwell’s office – could net the lawyers involved billions of dollars and has attached to it a poison pill feature that would create large costs for the SLPA-E if it withdrew. Then it turns out that the lead attorney hired by Caldwell, a political supporter of his, also hosted a fundraiser for the judge at the very time a related matter is coming to trial in front of her. Wade Shows hosted a fundraiser for District Judge Janice Clark at the end of February.

Shows protests that all he did was host the event and did not give any money. He said he agreed to do it well before the case was assigned (randomly, as is the practice) to Clark. But that changes nothing: in a very high profile case that could net Shows an enormous payday, he acted in a way to bring a potential political benefit to the legal authority that can determine whether he sees this payoff.

Discretion should have been the better part of valor for this character; he should have withdrawn his participation upon learning of the trial assignment. While that was the ethically correct thing to do, there was no legal requirement to do so, and therefore predictably he ducked this doing of the right thing.

Which is something state Sen. Robert Adley, who filed a judicial ethics complaint against Clark, has said he may have to propose changing through legislation. Adley – who in his day job runs a gas management company that has benefitted from a no-bid contract with local governments awarded by a group matters about which Adley occasionally casts votes – wants to extend to judges a similar kind of restriction that state lawmakers face, in that around and during legislative sessions no fundraisers may be held (which is why last week a flurry of legislator fundraisers occurred across the state). The contemplated language, which Adley will file if he is dissatisfied with how the complaint turns out, would prohibit judicial fundraising during trials by participants in it.

Such a complicated matter would involve complex questions – such as does it mean actually during courtroom time or the entire period from its beginning to resolution whether a physical trial occurs, does it include just individuals or also individuals with firms represented by another individual at the trial, etc. – but also addresses the ethical challenge only at the margins. The real problem is that judges are elected and therefore are in need of money by which to campaign.

Thus, the solution is to modify, if not scrap entirely, the idea of electing judges. As previously noted, perhaps the best idea involves what has come to be called the “Missouri Plan,” that involves some kind of appointive process initially for judges, and then a retention election after a certain period. This would reduce elections somewhat, but under current law (which although technically judicial candidates cannot run their own fundraising, allies are allowed to do so to make for an artificial distinction) lawyers who may appear in front of a judge still can donate plenty of time and money to judicial campaigns.

Here, as has been recommended previously for candidates in the majoritarian branches, something like restricting the time period to a matter of months prior to a retention election that a judge’s committee could be authorized to raise money. Additional safeguards could be put in along the lines that Adley suggests to balance the free speech rights of attorneys with the practical matter of minimizing the temptation to corrupt influence.

While no improper financial influence should be tolerated in any government anywhere, confidence in the judiciary to make decisions not influenced by these considerations is most paramount to ensure the system operates on the basis of the rule of law, not by who you know. Adley’s idea, if workable, would provide for a small amount of relief, but real progress in this assurance will come only if the need for campaign support is limited in the first place, which will require inconvenient but necessary constitutional amending.