BusinessReport.com

Attorney Chip Wagar was already feeling a bit nervous. It was 2002, and he was waiting outside state District Judge Alan Green’s chambers at the Jefferson Parish courthouse, wondering when his scheduled pre-trial hearing would begin. He hadn’t seen the judge or the opposing lawyer, W.J. LeBlanc. When the door to Green’s inner chamber finally opened, LeBlanc walked out, Wagar says.

“We are going to get screwed,” Wagar remembers thinking. He says Green ended up awarding LeBlanc’s client more than $1 million in a nonjury trial.

In early 2005, Wagar was asked to revisit that day by an FBI agent who had video footage of what occurred in Green’s office, including LeBlanc handing Green $800 in cash. Green would later say the money was not a bribe but an off-the-books contribution to the campaign of his niece, former State Rep. Jalila Jefferson-Bullock, although she testified in court that she never got the money, according to media reports.

Wagar testified in Green’s trial, in which the judge was also accused of accepting $10,000 in improper payments from a bail bonds company. Green was eventually sentenced to 51 months in prison, a casualty of the federal government’s “Operation Wrinkled Robe” sting.

There are at least two ways to read Wagar’s story. One could say it shows the system works, since Green is now an extended-stay guest of a federal facility and LeBlanc has been suspended from practicing law by the State Supreme Court. But Wagar, now the board president of the Louisiana Organization for Judicial Excellence, believes Green’s situation, while certainly an atypical and extreme example of out-and-out criminality, is symptomatic of the “cozy relationship between lawyers and judges in the Louisiana judicial system that revolves around money.”

The U.S. Chamber of Commerce ranks Louisiana’s judicial system 48th overall and 49th for judges’ impartiality. LOJE argues there’s a common-sense fix that could help the ratings, but you won’t find it in one of Gov. Bobby Jindal’s multipoint plans. Blueprint Louisiana, LA Ethics 1, PAR and CABL aren’t pushing it either, they say, and no bills addressing the matter had been introduced during the ethics special session as of Feb. 18. The organization and its allies argue judges shouldn’t rule on cases involving their campaign contributors.

In a study slated for publication this month in the Tulane Law Review, one of the school’s law professors, Vernon Palmer, and Loyola economics assistant professor John Levendis found Louisiana Supreme Court justices sided with their campaign contributors about 65% of the time on average from 1992-2006, and none of the seven justices voted in favor of their contributors less than 55% of the time. The highest percentages belong to Associate Justice John Weimer and Chief Justice Pascal Calogero Jr., who sided with contributors 81% and 80%, respectively.

When both sides gave, justices tended to favor the side that gave more, Palmer says. For example, Associate Justice Kitty Kimball, who represents the Baton Rouge area, sided with the defendant 61% of the time when the defendant made the larger donation. When the plaintiff gave more, Kimball sided with the plaintiff 67% of the time. This 28% shift strongly suggests that it is the donation, and not any underlying philosophical orientation, that accounts for Kimball’s votes, Palmer argues.

“I can’t think of anything that creates a worse appearance than allowing a donation to be made while the case is under consideration,” Palmer says. He says the Supreme Court should be the model for judicial ethics throughout the system, and questioned whether the high court is in a good position to discipline the lower courts if its own record does not inspire trust.

Kimball sounded personally offended when asked about Palmer’s study, and noted it was hard to respond to a report that hasn’t been released.

“I have never in my life made one single decision based on who the plaintiffs were or who the lawyers were,” she says. Judges are not permitted to personally solicit or accept donations. Kimball says she has hired a professional fundraiser for her next re-election bid; she says she has no idea who the fundraiser calls and doesn’t sign her own campaign finance reports, although she admits the public doesn’t necessarily buy that. Her most recent campaign finance report, available on the state’s ethics Web site, was signed by her treasurer and husband, Clyde Kimball.

While the recusal issue seems simple to the public, it’s actually “not as easy as people would like to make it,” Kimball says. Say a lawyer has a feeling a certain judge won’t look favorably on his case. He could just donate $10 to the judge’s campaign fund and get that judge off his case. And if a major law firm makes a donation, does that mean all 300 or so attorneys can’t practice before that judge?

There are already checks against corruption built into the system, which can result in judges being removed from the bench. The Louisiana Supreme Court has disciplined several judges who failed to disqualify themselves when they should have, according to the American Judicature Society. Greg Smith, an LSU law professor, says the state has a “pretty solid system for judicial discipline.”

“You can’t tell me a judge doesn’t know who’s contributing to the campaign,” says Randy Hayden, LOJE’s executive director.

LOJE believes the real solution is for the state to go to an appointment-based “merit selection” system, which they argue would result in more competent and impartial judges. In brief, potential judges would be nominated by local committees, appointed by the governor and confirmed by the Senate. After serving their term, the judges would be subject to retention elections, where the public could either keep them on the bench or vote them off.

Thirty-two states use some form of merit selection, LOJE says. But changing the way Louisiana selects its judges would require a constitutional amendment, and it doesn’t appear that anyone has the stomach to tackle that, while mandatory recusal commands strong support and can be done legislatively, Hayden says.

LOJE plans to push for changes to the laws governing civil cases in the March 31 regular session. Largely based on the American Bar Association’s model, their amendments would require that “a judge shall recuse himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned.” The current civil code only says a judge “may” recuse himself in those situations. Wagar says the only time a judge is required to step aside is when the judge will be called as a witness in the trial, per Article 151 of the civil code.

Most states follow the ABA model, although Louisiana would perhaps be the first to add campaign contributions to its statutes, LOJE says. Their proposal would require recusal if the judge knows or learns through a timely motion that a party in a trial, a party’s lawyer, the law firm of a party’s lawyer, or a person with close ties to a party or a lawyer, has made more than $500 in campaign contributions over the previous five years.