State judges: We don’t need no stinkin’ disclosure

Introduction

State officials blasted The Center for Public Integrity’s report on how difficult it is to learn about the financial holdings of state supreme court judges, while the reaction from some newspapers was a call for reform.

The nine-month investigation reported that 42 states and the District of Columbia received a failing grade in a Center evaluation of disclosure requirements for high court judges. Not a single state did better than the federal government when it comes to revealing the financial holdings of top judges.

Stories appeared in more than 50 news outlets in more than 40 states and in several national publications. It also was featured on C-SPAN and numerous radio stations.

No trouble here

Montana has zero disclosure for judges, one of three states (the other two being Idaho and Utah) with that dubious distinction. Despite that, Chief Justice Mike McGrath didn’t see a problem.

He told the Associated Press that by following a strictly enforced code of judicial conduct, the court has “moved sort of beyond mere disclosure.”

“We have a code that is quite strict and it specifically requires judges to disqualify themselves if they have any kind of an economic interest, or any member of their family has an economic interest,” McGrath said.

It’s basically the “trust me” argument, which was fairly common among critics.

The Great Falls Tribune, in an editorial, wasn’t so trusting, arguing that “transparency would be enhanced by requiring Montana’s Supreme Court judges, the most powerful state judges, to disclose their financial interests and those of members of their immediate family.”

The Billings Gazette agreed. Its editorial urged the state legislature to enact laws so judges face the same disclosure requirements as other statewide officials.

Iowa officials were similarly unperturbed. The state earned 17.5 points out of 100.

“The Center’s report and rating as applied to Iowa judges appears to be a solution in search of a problem,” said Guy Cook, president of the Iowa State Bar Association and a Des Moines lawyer. Sen. Rob Hogg, chairman of Senate Judiciary Committee, said the state’s court system is of the “highest integrity.”

Iowa had one of the oddest rules — judges “are allowed to receive gifts worth any amount on their wedding or 25th and 50th wedding anniversaries.” Cook told an Iowa newspaper that the rule applies to employees of the judicial branch, not judges.

We double-checked. He’s wrong.

John Goerdt, Iowa’s deputy state court administrator, confirmed to the Center that the section of the code of conduct clearly refers to judges. Cook did not respond to a phone call, and The Gazette deleted his comment.

South Dakota Chief Justice David Gilbertson also said the Center’s report was “a solution looking for a problem,” according to The Argus Leader.

South Carolina Chief Justice Jean Toal called the Center’s study “very flawed,” according to The State. “That is a viewpoint shared by every chief justice in the country,” she told the Columbia newspaper.

The state scored 40 points in the survey.

Chip Campsen, a Republican state senator from Charleston who sits on the state’s Judicial Merit Selection Commission, told The Post and Courier that an internal vetting system and the judicial code of conduct are adequate checks on potential judicial corruption.

“It’s not just the wild, wild West with judges sitting there unimpeded, making rulings on cases that they may have an interest with,” Campsen said. “There are protections in place.”

The Center gave South Carolina a failing grade largely because the materials available to the commission — documents that shed light on Supreme Court justices’ personal finances — are sealed. The information that is made public does not shed much light on judges’ personal finances.

Attacking the messenger

Bill Gang, spokesman for the Nevada Supreme Court (42.5 points), called the report “somewhat misleading” in the Las Vegas Sun.

“The fact that 84 percent of the state court systems received a failing grade while none received a grade higher than C suggests that the test is not neutral,” he said.

He did not elaborate on what he meant by “neutral.”

He also critiqued the Center’s point system that sought information about the finances of judges’ spouses and dependent children, saying Nevada could not pass because it does not seek such information.

Judicial experts told the Center that family members’ financial interests are crucial to understanding the full picture of judges’ finances.

In the Concord Monitor, New Hampshire (48 points) state courts spokeswoman Carole Alfano made a similar point about the alarming failure rate.

“New Hampshire has strong disclosure, and no one currently is asking for the judicial forms to be changed,” she said. “If CPI had taken a different tack on it — maybe, ‘Here’s some suggestions we have’— the court may have listened. But the flat-out F isn’t helpful, and it isn’t terribly legitimate.”

The Center doesn’t advocate for reforms; we report what we find. And we did share our results with the court prior to publication.

New Jersey’s court spokeswoman Winnie Comfort told the New Jersey Law Journal there were two “red flags” that cast doubt on the report’s findings.

Points were subtracted for not asking about judges’ outside income even though the New Jersey Constitution prohibits outside employment for judges, she said. The Center did give the state credit for reporting judges’ income because they disclose their court jobs, but we docked points because judges were not required to disclose the amounts of their judicial salaries.

In addition, Comfort said the state was wrongly criticized for asking only about real estate in Atlantic City, a question intended to screen out conflicts relating to the heavily regulated casino industry.

Comfort noted the form does seek information on rental income, regardless of the location of the property. The Center updated the New Jersey survey to note the inclusion, though the change did not result in a higher score (34 points).

The information sought is limited, though, and does not cover property that is not rented but lies outside of Atlantic City. Land that is being developed or farmed, for example, would not need to be reported if no rent was being collected.

Room for improvement?

There were also a few calls for reform.

“South Carolina‘s judicial ethics standards are clearly lacking,” noted The Post and Courier in an editorial. “They should address conflicts that might arise from judges’ investments and financial liabilities, just as those for elected officials should. Adjustments to state requirements should be made as soon as possible.”

Another appeal for more transparent state judiciaries came from Mississippi, a state that has seen the confidence in its system “rocked by judicial bribery scandals.”

A columnist from The Clarion-Ledger in Jackson wrote, “We hope judges will always do the honorable thing and step aside when there is a hint of a possible conflict, but we need to have strong requirements in place to ensure those in the judiciary aren’t unduly influenced by outside interests.”

The online New Mexico Watchdog suggested that the legislature consider addressing a gap in state law that an official said limited New Mexico from posting the state’s disclosures online, as the Center noted in the report.

The gaps in state disclosure requirements are easily correctable, noted an editorial from The Times-Tribune in Scranton, Pa. The piece urged Pennsylvania Chief Justice Ronald D. Castille to “embrace the opportunity, given a long series of scandals that have diminished public confidence in the courts.”

The Houston Press asked why states don’t simply adopt the federal rule.

“Besides the necessity of the public trust in the state judicial system — which far more people participate in than the federal court system — there simply cannot be differing sets of rules for players in the judicial system depending on if one is chummy with a judge (most people aren’t),” the paper wrote. “The Texas Legislature and the Texas Ethics Commission are on notice.”

Other comments

The District of Columbia (15 points) has great disclosure rules. Unfortunately, the public can only see two of the 10 sections on the forms. In a story on NPR affiliate WAMU-FM, a court representative said it’s not the fault of the judges. Congressional statute governs what information the district makes public.

That was a common refrain in a number of states, which note that changes to financial disclosure requirements are left to state legislatures.

An Alabama ethics official made a good point, using an old Center study to refute the new Center study. When grading state legislatures, researchers in 2009 ranked the requirements tops in the nation, said Jim Sumner, director of the Ethics Commission, in the Birmingham News. Justices are required to fill out the same report.

Alabama got 45.5 points.

The standards were a bit tougher this time because the Center opted to use federal disclosure forms as the basis for comparison. The federal forms, however, still aren’t that great — scoring 84 points. Judges report investments in a wide range and the forms are not available online.

California, which was featured prominently in the Center’s story, took issue with the state summary, noting that one conflict really shouldn’t have been considered a conflict.

California judges are not required to disqualify themselves from cases when they have a financial interest in a company that files a “friend-of-the-court” brief. Cathal Conneely told the Center in an email that such briefs might be abused by attorneys seeking to remove judges from particular cases.

In Connecticut’s state summary, the Center wrote that the state “does not require judges to report any income information for spouses or dependent children.”

Melissa Farley, executive director of the external affairs division of the Connecticut Judicial Branch, pointed out that the state does require judges to report financial information, including income, about their spouses and dependent children, but the information is not made public.

Family members’ financial information “is confidential unless there is an investigation started by the Supreme Court or the Judicial Review Council,” Farley said.

The Center only gave credit for publicly available information.

After publication, we learned that Alaska (58.3 points) requires judges to fill out a second form that contains much of the same information as the one we based our grade on. We’ve included those 2012 reports here.

Rhode Island’s court spokesman Craig Berke told the Providence Journal he was unsurprised by the Center’s findings, but questioned the project’s utility. The state scored 56.5.

“Rhode Island ranked 13th from the top and still it got an ‘F’,” Berke said. “We don’t understand the methodology, and we are not sure of its usefulness.”

John Marion, executive director of Common Cause Rhode Island, said there is “definitely room for improvement” in the Supreme Court’s current system but it “still has greater breadth and consistency than most.”

“But that may come at the cost of its depth, ” he added.

In Vermont (32 points), the findings didn’t surprise advocates who pointed out to WCAX 13 that the state is one of four that does not require financial reporting for statewide political candidates.

“It’s far more important, frankly, to concentrate on candidates running for state office here,” said Paul Burns of the Vermont Public Interest Research Group.

The Center found that Wisconsin Justice Ann Walsh Bradley had participated in a 2011 case involving Nestle USA. In response, Bradley told the Milwaukee Journal Sentinel that she owned stock in the multinational Nestle based in Switzerland, not the Nestle USA named in the lawsuit.

“I am in full compliance with our code of judicial conduct,” she said. “This investment is a tiny, tiny piece of a multinational company and its stock is in my IRA. And I do not participate in the management of the stock.”

Nestle USA is a subsidiary of the Nestle company in which Bradley owns stock, meaning it is one and the same company, according to Nestle spokesman Ian Metcalfe.