Monday, September 1, 2014

42 USC section 10201–the ADA or Americans with Disabilities Act, can it help Probate Victims and their families?


42 USC section 10201–the ADA or Americans with Disabilities Act, can it help Probate Victims and their families?

by jmdenison
From: kenneth ditkowsky 
Sent: Aug 28, 2014 4:59 PM 
To: Tim NASGA 
Cc: Eric Holder , Probate Sharks , Nasga Us , "JoAnne M. Denison" , Matt Senator Kirk 
Subject: ADA
 
 Lets start putting this together.
 
Guardianship has been sued by the criminal element within the legal profession for a bunch of purposes.    In the Wyman case it was used to get rid of wife!    In **** to dissolve a business relationship.    In Tyler to steal eight million dollars, in Gore 1.5 million dollars, in Sykes almost 2 million dollars *****.   
 
I am certain that the funds obtained were not reported on either their State or Federal Income taxes!     It therefore follows that we have tax evasion.    
 
To translate into simple terms.    Let us assume that the guardianship statute was used to get rid of a business partner.  The business partner is a fiduciary and therefore no matter how many court orders are obtain from the Court, any benefit that is obtained is taxable for Federal Income Tax and State income tax purposes!     Also the partner is liable for the breach of fiduciary relationship to the subservient partner.    A fiduciary cannot profit from his/her misdeeds.
 
When others join the foray they become conspirators and share the liability - including the criminal liability.    The outrageousness of invasion of privacy adds to the liability (tort) and is entitled to redress.
 
The foregoing notwithstanding society pays a price for the wrongful conduct of the guardianship and the corrupt public officials.   An adjudicated person cannot enter into contracts and an entity that deals with the adjudicated person is guilty of a misdemeanor.    The contract is void!    However, the only rights that are taken from the victim are those that he/she cannot reasonable perform.
 
Let me suggest that the Court appointed guardian who allow a situation to exist in which a person is wrongfully placed in a guardianship  - and does not on his/her own end the guardianship has personal responsibility (pecuniary) for all the expenses incurred.    Taking the Mary Sykes case as an example - Peter Schmiedel, Cynthia Farenga, Adam Stern, et al are all aware that Mary Sykes was never legally incompetent and more importantly was never properly adjudicated.    The videos that JoAnn published on her blog demonstrate the wrongful incarceration, sequestration, and taking of Mary's liberty and assets.     By participation in this fraud each has proactively caused Mary harm and should be liable to her and Gloria for this tort.  (See Article 1 Section 12) of the Illinois Constitution of 1970.     
 
Mr. Larkin for his participation and assault on the First Amendment should share jointly and severally the liability.      Certainly Larkin is aware of Congress' statement, to wit:
 

42 U.S. Code § 12101 - Findings and purpose

Current through Pub. L. 113-142, except 128. (See Public Laws for the current Congress.)
prev | next
(a) Findings
The Congress finds that—
(1) physical or mental disabilities in no way diminish a person’s right to fully participate in all aspects of society, yet many people with physical or mental disabilities have been precluded from doing so because of discrimination; others who have a record of a disability or are regarded as having a disability also have been subjected to discrimination;

(2) historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem;

(3) discrimination against individuals with disabilities persists in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services;

(4) unlike individuals who have experienced discrimination on the basis of race, color, sex, national origin, religion, or age, individuals who have experienced discrimination on the basis of disability have often had no legal recourse to redress such discrimination;

(5) individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, failure to make modifications to existing facilities and practices, exclusionary qualification standards and criteria, segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities;

(6) census data, national polls, and other studies have documented that people with disabilities, as a group, occupy an inferior status in our society, and are severely disadvantaged socially, vocationally, economically, and educationally;

(7) the Nation’s proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals; and

(8) the continuing existence of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous, and costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity.

(b) Purpose
It is the purpose of this chapter—
(1) to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities;

(2) to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities;

(3) to ensure that the Federal Government plays a central role in enforcing the standards established in this chapter on behalf of individuals with disabilities; and

(4) to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities.
 
The do not think that the American government has ever had to deal with a cancer such as elder cleansing.      The corruption of certain judicial officials and certain members of the legal profession who facilitate this criminal behavior is so obnoxious that it warrants the strongest rebuke!     The Florida case of Stone is so obnoxious as stripped to its core is extortion by court order and misuse of the Courts.    It has the same ugly twin that give rise to the foreclosures of homes in which the plaintiff had no mortgage or note!    The distinction is that human beings are being treated as chattels!     Shades of Dred Scott and Buck vs. Bell!     
 
Democracy is not a spectator sport!     If we could just get State law enforcement to enforce the law diligently and honestly all of this will go away - unfortunately there is too much money to be made by the dishonest court appointed guardians and those who conspire with them.    
 
Ken Ditkowsky
jmdenison | August 28, 2014 at 10:24 pm | Categories: Uncategorized | URL: http://wp.me/p209wH-1q4

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Anna Nicole Smith's Daughter Loses Fight For Marshall Millions

Anna Nicole Smith's Daughter Loses Fight For Marshall Millions



A federal judge has ended what may be the last chance for Dannielynn Birkhead — better known as the daughter of Anna Nicole Smith — to collect tens of millions of dollars from the estate of E. Pierce Marshall, the son of Anna Nicole’s billionaire husband, J. Howard Marshall II.
In an order today expressing regret over the outcome, U.S. District Judge David O. Carter dismissed as moot the attempt by Birkhead’s lawyers to win sanctions from the Marshall family over tactics the deceased heir and his lawyers employed in the long-running battle over the Marshall fortune. Carter last year indicated he might award more than $40 million in sanctions for behavior he described as “too pervasive and too egregious to be ignored.”
Anna Nicole Smith at the 2003 E3
Anna Nicole Smith  (Photo credit: Wikipedia)
Carter noted he was “one of the few remaining observers still alive” after nearly 20 years of litigation, which included a precedent-setting ruling from the U.S. Supreme Court, and he said the record shows Marshall and his lawyers had “a distinct disinterest in rules or ethics.” But Birkhead’s lawyers failed to provide sufficient evidence of actual damages for him to award sanctions, the judge said.
The Court is not immune to the equitable pleas from Vickie Lynn’s estate. It is tempting to invoke the broad doctrines of discretion, equity, and inherent powers to follow the pull of one’s heart and one’s conscience. But the powers granted to the federal courts are not all encompassing… The Court also must consider the very real concerns attendant in sanctioning Pierce Marshall, who is deceased and therefore cannot be present, cannot attend the hearing, and cannot answer for himself the allegations against him.

The decision appears to ends a case which, aside from its celebrity quotient, triggered important changes in bankruptcy law. (But see additional notes below.) Under the 2011 decision Stern v. Marshall, bankruptcy courts were largely precluded from issuing judgments of the sort that Anna Nicole Smith — formal name: Vickie Lynn Marshall — won after filing for bankruptcy in California. In her case, a judge in 2000 awarded Anna Nicole $475 million due to E. Pierce Marshall’s improper interference with his father’s estate. After a separate review under his authority as a federal district judge, Carter reduced the award to $90 million in 2002.
But the Ninth Circuit Court of Appeals reversed Carter and found the Texas probate court’s decision rejecting her challenge to the will precluded her suit in California. The Supreme Court later ruled that the bankruptcy court couldn’t enter a judgment in the case anyway because it wasn’t a “core proceeding” in her bankruptcy.
Celebrity lawyer Phil Boesch, who represented Anna Nicole’s estate, sought sanctions because Marshall’s delaying tactics cost him the opportunity to win a judgment in California before the Texas court handed down its ruling. He wasn’t immediately available for comment. But Carter said too much time has passed for that argument to succeed.
Time spent litigating the relationship between Vickie Lynn and J. Howard has extended for nearly five times the length of their relationship and nearly twenty times the length of their marriage. It is neither reasonable nor practical to go forward.
“All of us who knew Pierce wish he was here with us to see the outcome of this case,” said G. Eric Brunstad, Jr., a Dechert partner and attorney for the Marshall family.  “Pierce was a conscientious and honest man of great integrity.  The family is in complete agreement with Judge Carter that it is time to put an end to this litigation.”

Maybe not complete agreement. In his ruling, Carter said Marshall and his earlier legal team supplied false testimony, attempted to manipulate a sitting federal judge, destroyed documents, ignored discovery requests and wilfully disobeyed court orders. He had particular criticism for attorney Edwin Hunter, who represented the Marshall family holding company, saying his “conduct was perjurious, obfuscating, and execrable.” Hunter previously settled with Anna Nicole’s estate, the judge said, meaning Dannielynn likely received something from the litigation.
Pierce died in 2006. His estate is still tangled in a dispute with the Internal Revenue Service over more than $100 million in taxes the government says it is owed because of questionable estate-planning moves. That case, too, involves a potentially precedent-setting question of whether the heirs can be forced to pay tax penalties that J. Howard incurred by making excessive gifts during his lifetime, which had the effect of making him insolvent.
Marshall’s fortune stems from a 14% interest in Koch Industries Koch Industries that he obtained in the 1950s. He married Vickie Lynn in June, 1994 and died 13 months later. She filed for bankruptcy the following year in California. Pierce, in a maneuver he probably later regretted, sued her for defamation for suggesting he’d used forgery and fraud to gain control of his father’s assets. The bankruptcy judge dismissed his case but awarded Vickie Lynn $475 million on a countersuit accusing Pierce of interfering in her inheritance. That judgment was reversed in 2011 after going to the U.S. Supreme Court twice.
There is one wrinkle left in this long-running case that may breath new life into it. E. Pierce’s brother, J. Howard Marshall III, also appealed the judgment of the Texas probate court that effectively precluded Anna Nicole’s efforts to get a piece of the Marshall fortune. (He was cut out of the will by his father after siding with the losers in a fight for control of Koch Industries.) But in the bitter infighting over the Marshall estate, E. Pierce sued his brother and won a judgment that put him in bankruptcy. And then for reasons no one has been able to explain to me, there the Beverly Hills resident sat, for more than a decade, as first E. Pierce and then his widow refused to settle the judgment the son of one of the world’s richest men said he couldn’t afford to pay. His bankruptcy stayed the Texas appeal.
Finally last year, J. Howard Marshall exited bankruptcy. And that means the appeal of the probate judgment is back under consideration, including motions by lawyers for Anna Nicole’s estate to set it aside. In that case Judge Carter's CRI +0.06% earlier ruling in favor of her estate might be reinstated, and little Dannielynn would be back in the money.

Probe finds state counselors written into elderly veterans’ wills

 Editor’s note: How much different was this criminality than that of the lawyers and judges of the Probate Court of Cook County v. Alice R. Gore? As long as the Kawamotos and Solos of the world and their clones control the probate system, this injustice will continue.   Lucius Verenus, Schoolmaster, ProbateSharks.com

 

Probe finds state counselors written into elderly veterans’ wills


photo
BUFFALO, N.Y. (WIVB) – State veterans counselors who received personal windfalls from their clients, including a BMW as a gift, touched off an investigation by the Inspector General for the State Division of Veterans Affairs.
The investigation found “ethical lapses” by two counselors – Tracy Kinn, a well known counselor for Veterans Affairs, who works from an office at Hamburg Town Hall, and Pamela Tanner, a counselor based near Syracuse.
RELATED | Find more details on this story here
The Inspector General’s report reveals Kinn’s relationship with an elderly World War II veteran led to the man giving her his late model BMW, worth $23,000. He also opened a joint bank account with Kinn, using his money, to cover his personal affairs, but Kinn also used money from the account to pay some of her own expenses, amounting to at least $2,500.
State VA officials counseled Kinn about a possible conflict of interest, but Kinn pointed out she and the veteran were old friends.
The relationship between Kinn and the elderly veteran was under such intense scrutiny by the State VA, that the veteran told the state to back off, because he considered Kinn a trusted friend.
Rather than jeopardize his relationship with Kinn, the veteran turned away from the state agency for help with his veterans issues.
The Inspector General found further that the veteran chose Kinn as the primary beneficiary of his last will and testament, and upon his death, Kinn inherited the veteran’s house, stocks, and other assets.
A challenge to the will by the veteran’s family was settled out of court, but the will stayed intact.
In the wake of these findings, the Division of Veterans Affairs is re-writing its ethics policies, and the Inspector General’s report is being reviewed by the state Joint Commission on Public Ethics.
Kinn was not available to comment on this report.

An appeal to a Florida States Attorney to protect Barbara Stone and her mother from Elder and Family Abuse by the authorities


An appeal to a Florida States Attorney to protect Barbara Stone and her mother from Elder and Family Abuse by the authorities

by jmdenison
From: JoAnne M Denison[SMTP:JDENISON@SURFREE.COM] 
Sent: August 28, 2014 3:56:18 PM 

Subject: The illegal assault, prosecution and persecution of Barbara Stone and her mother 
Auto forwarded by a Rule
Dear Mr Horn

I am an attorney in Illinois who writes a blog about probate cases* and I also practice  our probate decision handling dozens of cases involving guardianships where family members are isolated from their loved ones and placed in locked down nursing homes and are drugged.  Estates are drained by tied in attorneys and court appointed agencies who bill but do not protect or even care very much at all other than their financial renumerations.

The use of psychotropic drugs on persons over 60 and under 20 is contraindicated by the FDA and is not an FDA approved usage of those drugs.  As such, any licensed physician or physician's assistant issuing such prescriptions should be promptly reported to the appropriate disciplinary authority for their licensing abuses.

I have heard that Ms. Barbara Stone has been isolated from her mother when she in fact has made diligent efforts to protect her mother and follow Federal and State laws pertaining to  Elder Abuse.  I also understand that Ms. Stone’s mother was drugged without notice and authorization by her.  This was a civil assault against her.

I understand that  it has been reported that Barbara's mother had to be  admitted to the hospital emaciated and near death from lack of food and hydration.  I have received dozens of reports of such crimes, and I am appalled by the inappropriate response of law enforcement to typically blame the good family members that report these abuses and seek to protect the elder, but instead they become the victim and are prosecuted for their attempts to protect while the miscreants are granted immunity and allowed to continue in practices that foster these situations.  Such is a horrendous tragedy.  Simply due to their position, power and authority, nursing homes, hospitals and other institutions are not infrequently found with starved, dehydrated elders, and then when a family member reports, the family member is banned, false protective orders are obtained--all in an effort to deflect the true criminals, the licensed professionals that allow these crimes to happen under their own roofs.

I hope that you will cease putting Barbara through this turmoil that is the result of law enforcement's and the state attorney failure to protect her mother while granting immunity to miscreants. It is time to stop these common practices. 

Barbara and her mother must be reunited immediately--without restrictions and without any supervision. To deprive an 86 woman at the end of her life the comfort of her daughter is discriminatory under federal and state laws and is an act of cruel and unusual punishment under the US and Florida Constitutions.

Sincerely,

JoAnne Denison

* my blogs are located at http://www.marygyskes.com andhttp://www.justice4every1.com

cc: marygsykes.com and Atty Barbara Stone
Please see the following relevant Florida statutes:

(2)  “Caregiver” means a person who has been entrusted with or has assumed responsibility for the care or the property of an elderly person or disabled adult. “Caregiver” includes, but is not limited to, relatives, court-appointed or voluntary guardians, adult household members, neighbors, health care providers, and employees and volunteers of facilities as defined in subsection (7).
825.102  Abuse, aggravated abuse, and neglect of an elderly person or disabled adult; penalties. —

(1)  “Abuse of an elderly person or disabled adult” means:
(a)  Intentional infliction of physical or psychological injury upon an elderly person or disabled adult;
(b)  An intentional act that could reasonably be expected to result in physical or psychological injury to an elderly person or disabled adult; or
(c)  Active encouragement of any person to commit an act that results or could reasonably be expected to result in physical or psychological injury to an elderly person or disabled adult.

A person who knowingly or willfully abuses an elderly person or disabled adult without causing great bodily harm, permanent disability, or permanent disfigurement to the elderly person or disabled adult commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(2)  “Aggravated abuse of an elderly person or disabled adult” occurs when a person:
(a)  Commits aggravated battery on an elderly person or disabled adult;
(b)  Willfully tortures, maliciously punishes, or willfully and unlawfully cages, an elderly person or disabled adult; or
(c)  Knowingly or willfully abuses an elderly person or disabled adult and in so doing causes great bodily harm, permanent disability, or permanent disfigurement to the elderly person or disabled adult.

A person who commits aggravated abuse of an elderly person or disabled adult commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(3)(a)  “Neglect of an elderly person or disabled adult” means:
1.  A caregiver’s failure or omission to provide an elderly person or disabled adult with the care, supervision, and services necessary to maintain the elderly person’s or disabled adult’s physical and mental health, including, but not limited to, food, nutrition, clothing, shelter, supervision, medicine, and medical services that a prudent person would consider essential for the well-being of the elderly person or disabled adult; or
2.  A caregiver’s failure to make a reasonable effort to protect an elderly person or disabled adult from abuse, neglect, or exploitation by another person.


825.103  Exploitation of an elderly person or disabled adult; penalties. —

(1)  “Exploitation of an elderly person or disabled adult” means:
(a)  Knowingly, by deception or intimidation, obtaining or using, or endeavoring to obtain or use, an elderly person’s or disabled adult’s funds, assets, or property with the intent to temporarily or permanently deprive the elderly person or disabled adult of the use, benefit, or possession of the funds, assets, or property, or to benefit someone other than the elderly person or disabled adult, by a person who:
1.  Stands in a position of trust and confidence with the elderly person or disabled adult; or
2.  Has a business relationship with the elderly person or disabled adult;
(b)  Obtaining or using, endeavoring to obtain or use, or conspiring with another to obtain or use an elderly person’s or disabled adult’s funds, assets, or property with the intent to temporarily or permanently deprive the elderly person or disabled adult of the use, benefit, or possession of the funds, assets, or property, or to benefit someone other than the elderly person or disabled adult, by a person who knows or reasonably should know that the elderly person or disabled adult lacks the capacity to consent; or
(c)  Breach of a fiduciary duty to an elderly person or disabled adult by the person’s guardian or agent under a power of attorney which results in an unauthorized appropriation, sale, or transfer of property.
(2)(a)  If the funds, assets, or property involved in the exploitation of the elderly person or disabled adult is valued at $100,000 or more, the offender commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(b)  If the funds, assets, or property involved in the exploitation of the elderly person or disabled adult is valued at $20,000 or more, but less than $100,000, the offender commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(c)  If the funds, assets, or property involved in the exploitation of an elderly person or disabled adult is valued at less than $20,000, the offender commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
History. — s. 4, ch. 95-158; s. 5, ch. 96-322; s. 1, ch. 97-78; s. 29, ch. 2009-223.



JoAnne Denison, Executive Director
Justice 4 Every1, NFP 5940 W. Touhy Ave, #120 Niles, IL 60714
 
From: kenneth ditkowsky 
Sent: Aug 28, 2014 4:24 PM 
To: "JoAnne M. Denison" , Probate Sharks , Nasga Us , Harry Heckert , "J. Ditkowsky" , Eric Holder , Matt Senator Kirk , Janet Phelan , Chicago Tribune , Chicago FBI , "FBI- ( (" , "donlhorn@miamisao.com" , BILL DITKOWSKY , "ComplaintAdmin ADA (CRT)" , ISBA Main Discussion Group , "gcoleman@bclclaw.com" 
Subject: Re: The illegal assault, prosecution and persecution of Barbara Stone and her mother

 Tim sent me the following which indicates that Congress also made a strong statement in enacting ADA, to wit:
 

42 U.S. Code § 12101 - Findings and purpose

Current through Pub. L. 113-142, except 128. (See Public Laws for the current Congress.)
 
(a) Findings
The Congress finds that—
(1) physical or mental disabilities in no way diminish a person’s right to fully participate in all aspects of society, yet many people with physical or mental disabilities have been precluded from doing so because of discrimination; others who have a record of a disability or are regarded as having a disability also have been subjected to discrimination;

(2) historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem;

(3) discrimination against individuals with disabilities persists in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services;

(4) unlike individuals who have experienced discrimination on the basis of race, color, sex, national origin, religion, or age, individuals who have experienced discrimination on the basis of disability have often had no legal recourse to redress such discrimination;

(5) individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, failure to make modifications to existing facilities and practices, exclusionary qualification standards and criteria, segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities;

(6) census data, national polls, and other studies have documented that people with disabilities, as a group, occupy an inferior status in our society, and are severely disadvantaged socially, vocationally, economically, and educationally;

(7) the Nation’s proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals; and

(8)  the continuing existence of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous, and costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity.

(b) Purpose
It is the purpose of this chapter—
(1) to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities;

(2) to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities;

(3) to ensure that the Federal Government plays a central role in enforcing the standards established in this chapter on behalf of individuals with disabilities; and

(4) to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities.
 

It therefore follows that the State officials who are not following their statutes and ADA are flirting with some very serious problems = including jail time.     The  refusal of lawyer disciplinary commissions to honor the mandate of the United STates of America and local law enforcement to not pro=actively protect the disabled and their families is of very serious concern.   

I am under the impression that Mr. Horn in the Stone case is a new broom.     We know that Mr. Coleman is the newly elected President of the Florida Bar.    Thus, both are blessed with a fresh start and the ability to make things right in the Stone case.    It is too late in some of the other cases;however, we have to start somewhere.     With a grand jury acting on health care fraud in South Florida it is an ideal time to clamp down on this guardianship fraud.
 
In Illinois and in the other states wherein elder cleansing is spreading it cancerous venom a strong response is also called for.    Mr. Jerome Larkin's ARDC alteration of the transcripts of Judge Stuart's testimony is a starting point.   The sudden demonstrable wealth of the guardian in the Sykes case is another starting point.    There can be no justification for the conduct of the guardians in the Illinois cases - what benefit was there to the Estate of Gore by the prospecting for Gold in the teeth of Alice Gore?     There is similarly no justification for Larkin's assault on the First Amendment. 

Ken Ditkowsky
jmdenison | August 28, 2014 at 10:20 pm | Categories: Uncategorized | URL: http://wp.me/p209wH-1q3

Strong Recusal Rules Are Crucial to Judicial Integrity

Strong Recusal Rules Are Crucial to Judicial Integrity

West Virginia Supreme Court
SOURCE: AP/Bob Bird
Acting Chief Justice Brent Benjamin, left, and Judge Fred Fox listen to arguments in a rehearing of a $76 million judgment awarded to Harman Mining Co. against Massey Energy Co. before the West Virginia Supreme Court of Appeals at the West Virginia State Capitol Complex in Charleston, West Virginia, Wednesday, March 12, 2008.
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This report is the fourth in a series on different policies that could help mitigate the influence of corporate campaign cash in judicial elections. The reports are intended for advocates or legislators who want to ensure our justice system works for everyone, not just those with enough money to donate.
Since the 2000 election season, state supreme court races have seen a surge in campaign cash. State supreme court candidates from 2000 to 2009 raised more than $200 million—two and a half times more than the amount raised in the previous decade. A report from Justice at Stake, an advocate for fair courts, found that judicial elections in 2012 set a spending record, with $27.8 million shelled out for television advertising alone. This flood of campaign cash has flowed from corporations, interest groups, and lawyers seeking to influence the composition of state high courts and the rulings issued by those courts.
This abundance of campaign donations has sometimes led to alarming conflicts of interest. Unlike legislators, judges make decisions that impact specific individuals or entities, which means the avoidance of any bias or partiality is critical. Under the ethical rules and guidelines in place in most states, judges must disclose any campaign donations from parties or attorneys before their courts, and they must refrain from hearing a case if it would give rise to “impropriety or the appearance of impropriety.” This standard, however, is vague and leaves much to interpretation.
Judges sometimes recuse themselves from cases involving litigants or lawyers who have given money to their campaigns, but all too often judges refuse to abstain in the face of glaring conflicts of interest. This has caused the public to doubt the impartiality of judges. According to several recent polls, more than three quarters of respondents believe that campaign cash influences rulings.
The North Carolina state legislature acknowledged these concerns in 2002, when it overhauled its judicial elections process and established public financing for qualified candidates for the state’s appellate courts. This system kept special interests from influencing the law and allowed North Carolina judicial candidates to avoid the ethical dilemmas that have plagued other states. The 2012 election, however, saw the state’s public financing system overwhelmed by “independent spending” as organizations supporting conservative Justice Paul Newby spent more than $2.5 million in his successful re-election bid. Funding these organizations were tobacco companies, education advocates, and health care interests—groups with a stake in cases before the North Carolina Supreme Court. The largest donation, by far, was $875,000 from the Republican State Leadership Committee, a national group dedicated to electing Republicans to state offices.
One of those cases before the North Carolina high court involves a lawsuit filed by the state chapter of the National Association for the Advancement of Colored People, or NAACP, among others, alleging that Republican legislators discriminated against African American voters in redrawing the state’s legislative districts. The plaintiffs allege that the drafters of the redistricting map purposely diluted the political power of “minority voters” by using race as a proxy for political party. A lower court granted the plaintiffs’ motion to access information about how the map was drawn. That decision, which is now being challenged in the high court, is seen as a precursor to the North Carolina Supreme Court eventually ruling on the legality of the redrawn legislative map. With the redistricting issue looming, the Republican Party and corporate interest groups used independent spending to influence the 2012 North Carolina Supreme Court election. Newby will have to decide whether all that independent campaign cash supporting his candidacy means that he should recuse himself from the case.
In a 2009 case the U.S. Supreme Court tackled the ethical dilemmas that arise from huge judicial campaign donations from parties before a court. The Court in Caperton v. Massey Coal Co. held that “extraordinary” campaign contributions from Don Blankenship, CEO of Massey Coal, violated the plaintiff’s due process rights. The plaintiff in Caperton was the owner of a small mining company who sued the much larger Massey corporation, alleging that it “destroyed” his business. The jury awarded the plaintiff $50 million, but while the case was pending before the West Virginia Supreme Court, the executive of the defendant corporation spent $3 million to help elect a Republican justice to that court. The newly elected justice refused to recuse himself from the lawsuit, even though two of his colleagues had done so. The justice cast the deciding vote to overturn the verdict on a technicality.
The U.S. Supreme Court held that the Constitution required the West Virginia justice to recuse himself. Justice Anthony Kennedy’s opinion said the coal executive’s “extraordinary contributions were made at a time when he had a vested stake in the outcome. Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when … a man chooses the judge in his own cause.” Kennedy noted that the Constitution “demarks only the outer boundaries of judicial disqualifications” and that states can implement stronger rules.

Judges refuse to police themselves

The most recent American Bar Association Model Code of Judicial Conduct instructs judges to disclose any potential conflicts of interest and requires recusal when campaign contributions exceed a certain amount. Leaving it to states to fill in the blanks, the rule says recusal is mandated when “a party, a party’s lawyer, or the law firm of a party’s lawyer has within the previous __ years made aggregate contributions to the judge’s campaign in an amount greater than ___ .” In the wake of the Caperton decision, a few states strengthened their recusal rules, but most states have not responded to the ethical dilemmas that have emerged as campaign cash has flooded judicial elections.
Some state supreme courts have even weakened their recusal standards in recent years. In a 2010 decision by the Wisconsin Supreme Court, a four-justice majority of conservative justices voted for an inadequate recusal rule. The court adopted the watered-down standards articulated by a number of conservative organizations, including the Wisconsin Realtors Association and Wisconsin’s Manufacturers and Commerce. These corporate-funded groups subsequently donated nearly a million dollars to support Justice David Prosser’s successful re-election in 2011, keeping in place the court’s four-justice conservative majority. The new rule states that campaign donations or independent expenditures by a litigant or an attorney can never be the sole basis for recusal.
The four conservative Wisconsin justices rejected an alternate proposal from the League of Women Voters to mandate recusal when a party contributes to a justice’s campaign. The League argued the court must have “rules for recusal which remove any perception that justices and judges are beholden to those who contribute to their campaigns.”
Wisconsin Justice Ann Walsh Bradley dissented from the order adopting the standard urged by the corporate interest groups, expressing alarm that judges’ campaigns can now ask parties before the court for campaign contributions. “Judges must be perceived as beyond price,” Bradley stated. She criticized the majority for adopting “word-for-word the script of special interests that may want to sway the results of future judicial campaigns.” The Wisconsin high court’s four-justice majority seems intent on making it easier for big money to influence the judiciary, at the expense of litigants without resources to contribute to political campaigns.
One substantial donor to judicial campaigns—insurance giant State Farm—saw several recusal requests directed toward a beneficiary of the company’s generosity, Illinois Supreme Court Justice Lloyd Karmeier, in a class action lawsuit in which a jury awarded a $1 billion verdict against the insurer. According to the plaintiffs in that case, the company spent millions of dollars to elect a justice to the Illinois Supreme Court in 2004. The class action lawsuit was brought by millions of policyholders who claimed State Farm had violated their insurance policies and consumer protection laws by offering inferior parts to repair their cars. Justice Lloyd Karmeier was elected to the court while the case was pending. The plaintiffs asked Justice Karmeier to recuse himself because State Farm’s employees and lawyers had donated around $350,000 to his campaign, but he declined. Justice Karmeier voted to overturn the verdict.
The plaintiffs, claiming they had discovered new connections between the judge’s campaign and State Farm, filed a new lawsuit in the fall of 2011 alleging that State Farm—through political groups such as the U.S. Chamber of Commerce and the Illinois Civil Justice League—“recruited Karmeier, directed his campaign, had developed a vast network of contributors, and funneled as much as $4 million to the campaign” in an effort to influence the outcome of the appeal. State Farm has sought to dismiss the lawsuit, arguing that it rehashes many of the claims asserted in the previous case.
Some judges oppose stricter recusal rules on the basis of their “duty to sit,” which requires them to hear cases and controversies before them. Because they belong to the courts of last resort for many cases, state supreme court justices who refuse to abstain often cite this notion.
Even when judges seek to recuse themselves it is sometimes impossible for them to do so. In a 2000 Nevada Supreme Court case, a trial court judge recused himself from hearing a lawsuit brought by two plaintiffs whose land was seized through eminent domain for a private redevelopment project. After the case was assigned to the judge, four casinos that would benefit from the redevelopment project gave contributions to the judge’s campaign. The landowners asked the judge to recuse himself because of the contributions and because two of the witnesses were casino executives who gave money to the judge’s campaign.
To his credit, the judge agreed and abstained. But after three other trial court judges similarly recused themselves, the redevelopment authority persuaded the Nevada Supreme Court to order the original judge to hear the case. In issuing its order, the high court noted “this recurring problem of campaign contributions” but said a rule requiring recusal due to campaign contributions would “severely and intolerably obstruct the conduct of judicial business.” In other words, campaign cash from litigants and attorneys is so pervasive that requiring recusal in these circumstances would make it impossible for judges to do their jobs.
The Nevada plaintiffs—their land taken to provide a parking deck for the same casinos that donated to the judge’s campaign—likely found little solace in the judge’s “duty to sit.” This legal axiom predates multimillion-dollar judicial campaigns and ignores the damage they have done to public confidence in the judiciary.
Several years after the Nevada high court’s decision, the Los Angeles Times described the Nevada judiciary as rife with conflicts of interest, displaying a “style of wide-open, frontier justice that veers out of control across ethical, if not legal, boundaries.” The Nevada high court in 2009 adopted a rule requiring recusal when a judge’s “impartiality might reasonably be questioned,” but the justices rejected two proposals to specify when campaign contributions require recusal. One rule would have kicked in when contributions exceed $50,000, and the other would have required recusal when a party or law firm provides 5 percent or more of a judge’s campaign funding.
When courts are left to police themselves, the strength of a court’s standards depends on the will of a majority of the justices. The Michigan Supreme Court has taken a step in the right direction, but not every justice is on board. The court recently adopted a rule that permits the entire court to review motions to recuse a justice. Under the rule, a justice must respond in writing to requests for recusal, and if he or she decides not to abstain, the party making the request can appeal that decision to the entire court.
Two of the Michigan court’s seven justices, however, have refused to participate in these appeals. Justice Maura Corrigan, dissenting in one such case, argued that Michigan’s recusal standard is too high:
The rule effectively gives a majority of justices carte blanche to disqualify their colleagues simply by articulating its impressions of why a challenged justice’s participation appeared improper, without regard to the existence of the traditional, more objective grounds for recusal such as personal bias, involvement in the case, or economic interest in the case.
Corrigan also argues that the rule “nullifies the electoral choice of the people of Michigan by permitting the Court to decide which justices may participate in a given case.”
Justice Corrigan’s objections are based on outdated notions of judicial impartiality. Ethics rules have been strengthened as campaign cash has flooded judicial elections. A personal financial stake in a case is no longer the only basis for demanding recusal. In Caperton, the U.S. Supreme Court quoted the then-existing version of the American Bar Association Model Code of Judicial Conduct, which instructed judges to avoid “the appearance of impropriety.” The Court noted that this rule has been adopted by “almost every state.” The Court explicitly did not find any actual bias or impartiality on the part of the judge in Caperton, but recusal was still required because of the risk of bias.
Justice Corrigan’s stance illustrates the folly of leaving it to judges to police themselves on ethical issues. If two more justices were elected to the Michigan bench who share Corrigan’s views, the justices could revoke the rule. Legislative action is necessary to ensure recusal rules are more consistent, legislative.

Legislatures should pass real recusal reform

Despite the steep rise in judicial campaign cash, courts have failed to implement the tough recusal rules needed to ensure public confidence in judicial impartiality. Caperton may provide some relief from the most extraordinary and blatant conflicts of interests, but it is not enough. State legislatures should pass laws that specify when recusal is required.
Only five states explicitly require recusal when campaign contributions reach a certain threshold. In California a judge cannot hear a case if he or she has received campaign contributions of more than $1,500 from a party or a lawyer in the case. Alabama similarly requires a trial court judge’s recusal when a litigant or attorney has given more than $2,000 to the judge’s campaign. For appellate judges, the threshold is $4,000. The Alabama law states: “Under no circumstances shall a justice or judge solicit a waiver of recusal or participate in any way when . . . the contributions of a party or its attorney exceed the applicable limit.” The statute instructs the high court to promulgate rules allowing motions to recuse under these standards to be heard by lower court judges.
The Alabama law was passed in 1995, but it remains stuck in legal limbo. The Alabama Attorney General’s office initially submitted the rule to the U.S. Department of Justice for “preclearance” under Section 5 of the Voting Rights Act, which requires certain jurisdictions with a history of racial discrimination in voting to “pre-clear” any changes in voting with the federal government. After the department asked for more information on the rule, the office sought to revoke its submission, claiming the rule was not subject to preclearance. The state and federal government have yet to resolve the issue. The Alabama high court, meanwhile, has refused to implement the rule until it is precleared. Rejecting a lawsuit seeking to break this stalemate, a federal court recently referred to the situation as a “game of political chicken, with both players staring (or perhaps winking) at each other.”
Alabama was on the leading edge of the trend of exploding campaign costs for high court races. The 2006 high court race saw candidates spend $13.5 million—nearly half of all the money spent on high court races nationwide that year. Candidates in the 2010 Alabama Supreme Court election accepted dozens of contributions higher than the $4,000 threshold, with some contributors forking over tens of thousands of dollars to the judges’ campaigns. Because the recusal rule is unenforced, however, the judges can hear cases involving these campaign contributors. Alabama citizens and their state legislators should demand that the court honor this law, which is now nearly 20 years old.
As the trend toward expensive judicial races spreads, states around the country should emulate California and Alabama by passing rules that mandate recusal when campaign contributions from a party or lawyer reach a certain point.
Alabama and California use a specific monetary threshold. One scholar recently suggested using a standard of “five to ten percent of the judge’s total campaign expenditures.” Capertonsimilarly relied on criteria such as “a contribution’s relative size in comparison to the total amount of money contributed to the campaign.” As long as recusal rules are based on vague standards of “impropriety,” judges will be able to avoid recusal in the face of large campaign contributions.
Additionally, recusal statutes should cover independent expenditures made on behalf of a judge’s campaign. Spending by groups that are independent of judicial campaigns has risen sharply in recent elections. According to the Justice at Stake report, in the 2012 election independent spending on television ads exceeded the amount spent by campaigns. InCaperton, the coal executive’s influence on the 2004 West Virginia Supreme Court election was mostly in the form of independent spending. Even though the coal executive’s direct contribution to the candidate was rather modest, the U.S. Supreme Court held that his indirect contributions—in the form of a $2.5 million donation to a group criticizing the judge’s criminal decisions and $500,000 spent on ads by the executive himself—resulted in an unconstitutional conflict of interest.
Independent spending allows interest groups to circumvent campaign contribution limits, and if allowed to remain unchecked, they will continue to play a crucial role in judicial races. The U.S. Supreme Court, in cases like Citizens United, has loosened restrictions on independent spending, and the federal agency regulating campaign finance is paralyzed by a partisan stalemate. Omitting independent expenditures from recusal rules would present a huge loophole for litigants and lawyers looking to influence judges.
If state legislatures do not implement mandatory recusal rules, they should at least follow the Michigan high court’s lead and allow review of a recusal decision by an entire court. The judge facing the alleged conflict of interest should not be the only person deciding the issue. After all, if a judge has a conflict of interest in a lawsuit, he or she also has a conflict of interest in deciding whether to hear the suit.
Some judges might express alarm at legislatures crafting ethics rules for the judicial branch, citing concerns about separation of powers. The courts, however, retain their role as interpreters of their respective state constitutions, meaning that any rules that violate the constitutional separation of powers can be stricken. These rules generally leave the ultimate decision on recusal in the hands of judges, so they do not give other branches control over who hears a specific case. More importantly, these concerns gloss over the damage that conflicts of interest inflict on the public’s perception of the judiciary. Unlike laws allowing legislatures to override court rules or giving politicians more control over judicial selection, recusal rules govern the ethics of judges, and they are only necessary in states in which the high courts have failed to respond adequately to the swelling tide of campaign cash.

Conclusion

The explosion of money in judicial politics has brought renewed attention to the issue of judicial ethics. Conflicts of interest like those in Avery v. State Farm and Caperton v. Massey Coal Co. shock the consciences of citizens and cause them to question the integrity of the judiciary. The Supreme Court’s Caperton ruling may provide relief in some of the most egregious cases, but states must go further.
State legislatures should pass rules mandating recusal when the campaign contributions of a party or its attorneys reach a certain point. The legislatures can base the threshold on a certain dollar amount, based on the historical cost of judicial elections, or on a percentage of a candidate’s total contributions. A bright-line rule would not allow judges any wiggle room to avoid recusal. It would also discourage special interests from donating too much money to judicial candidates they favor because doing so would mean that the judges, once on the bench, could not hear their cases.
Recusal statutes should also govern independent expenditures, which play an increasingly important role in judicial elections. The defendant in Caperton used independent expenditures to evade contribution limits, and the U.S. Supreme Court found that this gave rise to an unconstitutional conflict of interest. Omitting this money from recusal rules would leave a glaring loophole for those seeking to curry favor with judges.
Polls show that the vast majority of citizens are concerned that campaign cash affects judges’ rulings. This is a bipartisan concern, and the public must demand that state legislators take action. Citizens should also hold judicial candidates to account for these concerns about impartiality. Voters should reward high court candidates who run on a platform of recusal reform.
Coal executive Hugh Caperton saw his business destroyed by a much larger corporation and won a jury verdict for his losses, but then saw the larger corporation work to elect a judge who overturned the verdict. In 2010 Caperton said he had “experienced firsthand the devastation and destruction that big money campaign donations are causing in judicial elections and ultimately, in our courts.” He lamented, “It appears that justice is indeed for sale.” Mandatory recusal rules would go a long way toward disabusing citizens of the notion that judges and by extension, justices, can be bought.
Billy Corriher is the Associate Director of Research for Legal Progress at the Center for American Progress.
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