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Wednesday, September 15,2010

'Appearance of impropriety'

Should judicial candidates accept campaign contributions from lawyers? Two local candidates differ

by Andy Balaskovitz
If one thing separates the two 30th Circuit Court judicial candidates in Ingham County, it is their philosophies on accepting campaign contributions from lawyers.

It is not against state law for judicial candidates to accept contributions from any individual or political action committee. But if a candidate accepts contributions from lawyers and then wins, will the judge appear tainted by those donations?


Billie Jo O’Berry, Lansing assistant city attorney and 30th Circuit Court candidate, says that possibility is very real. O’Berry’s campaign finance committee will not accept contributions from lawyers in excess of $250 and will not attend fund-raisers hosted by law firms.


“There is the potential to create the appearance of impropriety, and that is what judges should avoid,” O’Berry said. She challenges the belief within law circles that it’s OK for law firms to host fundraisers for judicial candidates.


“If a law firm hosts a fundraiser, even if it is just donating space, that candidate is sponsored by that law firm,” O’Berry said, meaning contributions can start adding up from associates and partners of the law firm. “You start talking about significant amounts of money. I think, to the public, it gives that appearance (of bias).”


Her opponent, trial attorney Clinton Canady III, disagrees. His argument: Traditionally, attorneys have always donated to judicial races. Moreover, if there were a serious problem with it, state laws would have been changed by now.


“Don’t you think, in 35 years, if this was a problem it would be addressed?” Steve Linder, Canady’s spokesman, asked. “People who look at it as buying favor are looking at it wrong.”


The contribution limit for 30th Circuit Court candidates is $3,400 (it varies by circuit) by any individual or committee, mandated by the Michigan Campaign Finance Act of 1997. The state Supreme Court issues the Michigan Code of Judicial Conduct. One section says judicial candidates cannot solicit contributions of more than $100 per lawyer.


But soliciting is not the same as accepting, and lawyers are not the same as law firms, O’Berry said.


Linder said that if O’Berry holds herself to a higher ethical standard because of her campaign philosophy, she is wrong. It is everyone’s right, Linder said, to participate in the electoral process.


“To suggest this makes her of greater integrity is just not true. Everyone has the right to participate in democracy,” Linder said.


O’Berry — in her fifth judicial race — backs up what she preaches. She contributed $30,350 out of her own pocket for this election. As of Sept. 2, all of her contributions totaled $32,000, which included a $100 donation from Don Kulhanek, acting deputy city attorney for Lansing, in early August.


Canady on the other hand netted $7,550 in contributions last March at a fund-raiser hosted by Clark Hill Attorneys at Law. In total, Canady has raised about $20,000 more than O’Berry for this election.


Former Circuit Judge Michael Harrison agrees with Linder that the state Supreme Court’s guidelines are stringent compared to the amount of money thrown around during election years.


“I don’t know anyone over the years to be influenced by $100,” he said. In comparison to partisan political races, Harrison said judicial candidates don’t see many contributions from the public. There isn’t sparring over political issues, thus keeping their names out of the spotlight.


“No question the bulk of money that comes into a (judicial) candidate’s campaign fund is generally from attorneys,” he said.


Harrison has been practicing mediation for Foster Swift Collins and Smith for about 10 years after serving on the 30th Circuit Court for nearly 25. He is undecided if he will endorse Canady or O’Berry.


For some judges, attorney contributions aren’t even the most egregious types. In an unsuccessful 2002 bid for a 30th Circuit Court seat, 54B District Judge Richard Ball ran on a platform that he would not accept contributions from special interest groups, such as Planned Parenthood or the Michigan Education Association, he said.


“In judicial races, I firmly believe there is a difference between law firms and special interest groups,” he said. “A law firm PAC (political action committee) is nothing but a convenient way for lawyers to contribute without actually bearing their name.” Special interest groups, on the other hand, take positions based on party lines, he said.


Ball endorses Canady in the General Election and agrees with Harrison that the difficult part of judicial races is getting name recognition out there. And for that, money helps, he said.


Campaign contributions to judges reached national attention in 2009 after a West Virginia judge refused to remove himself from a case after he had accepted $3 million in contributions from a political action committee headed by the CEO of a company that was a defendant.


In the case of Caperton v.A.T. Massey Coal Co. of 2009, the U.S. Supreme Court ruled 5-4 that West Virginia Supreme Court Judge Brent Benjamin should have recused himself.


In the 2004 West Virginia Supreme Court election, Benjamin accepted a $3 million contribution from a political committee headed by Massey CEO Don Blankenship. In 2002, Caperton was awarded $50 million in damages from Massey over a coal contract disagreement. That case reached the state Supreme Court by the time Benjamin was elected and he was part of the 3-2 majority that ruled in favor of Massey. Benjamin refused to remove himself from the case.


Though $3 million is far in excess of what O’Berry and Canady are working with, Janet Welch, executive director of the State Bar of Michigan, said the West Virginia case makes the topic relevant: “The question becomes: Is there a legitimate reason to suspect a judge who receives a contribution of some magnitude creates the appearance of bias?”

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