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better part of valor for this character; he should have withdrawn his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.
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