http://www.brennancenter.org/content/resource/promoting_fair_courts_through_recusal/Promoting Fair and Impartial Courts through Recusal Reform
Adam Skaggs and Andrew Silver
1
Revised August 2011
[N]ow as never before, reinvigorating recusal is truly necessary to preserve
the court system that Chief Justice Rehnquist called the “crown jewel” of our
American experiment.
The Honorable Thomas R. Phillips
Retired Chief Justice, Supreme Court of Texas
2
Reforming judicial disqualification practice in the states is necessary to combat mounting
threats to public confidence in the judiciary. In particular, recusal reform is needed to defeat
the growing perception that judges’ decisions in the courtroom are influenced by partisan
political concerns and — in the 39 states that elect judges — judicial campaign spending.
State and national surveys have repeatedly shown that large, bipartisan majorities are
extremely wary of the role that money plays in judicial elections and believe that campaign
funding support buys favorable legal outcomes.
3
In 2009, the U.S. Supreme Court recognized the corrosive effect that outsized judicial
campaign spending can have on public perceptions of judicial legitimacy. In
Caperton v. A.T.
Massey Coal Co.
,4 the Court concluded that it violated the Constitution’s guarantee of a fair,
impartial tribunal when a judge who had benefitted from more than $3 million in campaign
spending by the CEO of the Massey coal company — more than the total amount spent by
all the judge’s other supporters, and by his own campaign committee — cast the tie-breaking
vote to throw out a $50 million damages award Massey was appealing. Recognizing that
there was a “serious, objective risk of actual bias”
5 when the judge ruled on his principal
benefactor’s case, the Supreme Court disqualified the judge. At the same time, the Court
emphasized that states would be well served to adopt recusal rules “more rigorous” than the
Constitution requires.
6
Two years after
Caperton, although a handful of states have adopted promising new rules, the
majority of state courts have failed to adopt any reforms that respond to the threats
identified by the U.S. Supreme Court.
The issue is, if anything, more relevant today than it was two years ago. Judicial spending
continues to spiral out of control. Such spending in the decade between 2000 and 2009
more than doubled what was seen in the 1990s.
7 In 2010, runaway spending in judicial
2
elections reached uncontested retention elections in several states, introducing expensive and
politically driven electioneering to races that had hitherto avoided the trends affecting
contested judicial elections.
8 And a highly politicized (if nominally non-partisan) 2011
supreme court election in Wisconsin shattered records for special interest spending on
television advertising in a judicial contest.
9 These trends show no signs of abating, making it
imperative that state courts accept the Supreme Court’s invitation in
Caperton and adopt
strong recusal policies.
INTRODUCTION
In February 2011, the Brennan Center for Justice at NYU School of Law issued this paper to
identify the most effective recusal rules in the states, and to highlight best practices that
could serve as the model for reform efforts in other states. We issued the paper just as the
American Bar Association was poised to consider a resolution on judicial disqualification,
and while the ABA tabled the proposal in February, the ABA’s House of Delegates is
expected to adopt a promising recusal resolution in August 2011.
The Brennan Center commends the ABA for its attention to this important issue. In
anticipation of the recusal resolution’s ratification, we have updated our analysis of state best
practices. We hope this analysis will assist state courts seeking to respond to calls for recusal
reform — including the ABA’s — as they craft effective rules designed to ensure fair and
impartial courts and promote public confidence in the judiciary.
Since the first formal ethics rules for American judges were drafted in 1924 by an American
Bar Association committee led by then-Chief Justice (and former President) William Howard
Taft, the ABA has taken a leadership role in defining the ethical obligations that govern
judicial conduct. In 1999, a provision was added to the ABA’s Model Code of Judicial
Conduct that called for disqualifying an elected judge who, within a specific number of years,
had received campaign contributions exceeding a certain threshold from a party or party’s
counsel.
10 Most recently, the ABA’s Standing Committee on Judicial Independence has
researched judicial disqualification practice in the states and drafted the resolution before the
House of Delegates; the resolution is co-sponsored by several other ABA entities.
State court systems should respond to the ABA’s resolution by implementing new rules that
promote the reality and appearance of fair and impartial courts. As state courts consider and
advance new disqualification rules, they should adhere to two overarching principles.
First
, states must provide for review of recusal motions by neutral judges, so that a
challenged judge doesn’t have the last, only word on whether to step aside. To facilitate
meaningful review, states should require reasoned, transparent decisions on recusal requests.
Second
, states should adopt rules recognizing that a judge’s impartiality may reasonably be
questioned, and disqualification may be necessary, because of judicial campaign spending by
litigants or their attorneys. To facilitate informed recusal decisions in cases concerning
campaign spending, states should mandate disclosure of campaign contributions and
independent expenditures.
3
To assist state courts in implementing these principles, the Brennan Center for Justice offers
the following model rules, which provide a blueprint for state implementation.
In response to the need for clearly articulated procedures for handling recusal requests (and
for review of recusal decisions), we identify existing best practices that other states should
emulate. We survey existing state rules and highlight the most promising models that states
should replicate when adopting guidelines on when campaign contributions mandate
disqualification. Finally, we offer a model disclosure rule that can assist states in bringing
transparency to judicial campaign finance and recusal practice.
The Brennan Center has consistently advocated substantive and procedural recusal rules that
protect due process and reassure citizens that their courts are fair and free of actual or
apparent partiality. In 2008, we issued a comprehensive report,
Fair Courts: Setting Recusal
Standards
, which detailed the increasing threats to the impartiality of state courts and the ways
in which robust recusal standards help safeguard due process and public trust in the
judiciary; we have also advocated in support of recusal reform in numerous states.
11 Here,
we draw on our national research regarding recusal practice to offer models for new
disqualification standards and procedures, all of which will help safeguard the impartiality of
state judiciaries.
I. STATES SHOULD PROVIDE FOR MEANINGFUL REVIEW OF
RECUSAL REQUESTS BY NEUTRAL JUDGES.
A. States should not rely on a challenged judge to make the final decision
on whether his or her impartiality can reasonably be questioned. If a
judge denies a recusal request, states should provide for prompt,
meaningful review of the denial.
To ensure public confidence in the judiciary, states should adopt rules under which the final
decision on recusal is not made by the challenged judge himself or herself. This is an issue
of fundamental importance: one of the most criticized features of recusal practice is the fact
that in many states, the judge subject to a recusal request has the unreviewable last word on
whether to step aside from a case. It flies in the face of fundamental notions of
disinterested, impartial decision-making to allow a judge accused of bias to be the only one
who decides whether he or she should be disqualified.
The Supreme Court recognized in
Caperton that allowing a challenged judge to subjectively
assess his or her impartiality can be inadequate to ensure public confidence in the tribunal’s
fairness. The Court noted that the West Virginia judge in question had “conducted a
probing search into his actual motives and inclinations; and he found none to be improper,”
and the Court “d[id] not question his subjective findings of impartiality and propriety.”
12
But with public confidence in an impartial judiciary at stake, the Court recognized that an
objective assessment of impartiality — not a subjective one — was appropriate: “The
difficulties of inquiring into actual bias, and the fact that the inquiry is often a private one,
simply underscore the need for objective rules. Otherwise there may be no adequate
4
protection against a judge who simply misreads or misapprehends the real motives at work
in deciding the case.”
13 As then-Chief Justice Marilyn Kelly of the Michigan Supreme Court
observed when commenting on a procedure that court adopted following the
Caperton
decision, “an independent inquiry into a challenged justice’s refusal to recuse may be
necessary to satisfy due process because the independent inquiry makes possible an objective
decision.”
14
One way to ensure objective, wholly impartial consideration of disqualification requests is to
remove the challenged judge from the decision entirely — by referring it either to another
judge or to a panel of judges for resolution. An alternative solution allows the challenged
judge to issue an initial ruling on recusal, but provides for prompt
de novo review if the judge
denies the request.
We urge states to adopt a version of the second policy, which preserves a role for judges
whose impartiality is challenged but effectively ensures that final disqualification decisions
are made by objective, disinterested parties. Under such a procedure, a judge who receives a
recusal motion may choose to voluntarily step aside from the case. If the judge declines to
do so, the party seeking recusal may appeal the denial to another judge or group of judges.
States may wish to adopt different procedures for different courts — a recusal procedure
that makes sense for a trial court with dozens of judges may not be well suited for a supreme
court of five or seven justices — but in all courts, states should rely on a decision-maker
other than the judge whose impartiality is at issue to render a final decision on
disqualification. Such a common sense procedure ensures an objective assessment of
whether an alleged conflict of interest calls into question a challenged judge’s impartiality —
and will increase public confidence that courts are truly fair and impartial.
1. Trial and Intermediate Appellate Courts
States that have rules pertaining to recusal decisions at the trial and intermediate appellate
levels generally follow one of three basic models. Under the first model, the challenged judge
has sole discretion to decide any recusal motion on the merits.
15 Appropriately, such
procedures have been widely questioned.
The two alternative procedures are preferable. Under the second model — used in states
including Kentucky, Montana, Texas, Utah, and Vermont — the challenged judge either
grants a recusal motion and steps aside or simply transfers the matter to a designated judge
at the same court level (often the chief judge), without addressing any aspect of the recusal
decision. The designated judge then decides the motion.
16
The third model, used in states like Georgia, borrows aspects of the first two. The targeted
judge initially reviews the recusal request for facial sufficiency, timeliness, and/or compliance
with other procedural requirements. If the targeted judge determines that the motion was
properly filed, he or she may then either grant it or transfer the matter to another judge to
render a decision.
17 Other states use a slightly different version of this model in which the
challenged judge is permitted to rule on the merits of a recusal motion, but if he or she
denies the request, the chief judge or the remaining members of the court review that
5
decision. In Michigan’s lower courts, for instance, if a challenged judge denies a recusal
motion, the motion is referred to the chief judge, who decides it
de novo.18
The latter two options provide alternative means of ensuring that an objective decision
maker evaluates the disqualification request, and are preferable to allowing the challenged
judge to have absolute discretion to decide whether recusal is necessary. In deciding
between these promising procedures, each state will have to examine a variety factors —
including, among other things, the size of the court and its relative workload. For instance,
in smaller court systems, it may be less of a strain on the judiciary to eliminate procedurally
insufficient or frivolous claims before giving another judge the responsibility of making a
decision on the merits. Regardless of the specific factors facing a given court system in a
particular state, however, both options are viable — they are routinely used in numerous
states without problems. States that currently leave the final recusal decision to the
challenged judge should adopt some version of them for their trial and intermediate
appellate courts.
2. Courts of Last Resort
Recusal practice in state high courts has become an issue of great public concern in the two
years after
Caperton,19 but in that time only one state supreme court — Michigan’s — has
fundamentally changed its process to ensure that a challenged justice does not have the last
(and only) word on a disqualification request. Numerous other state supreme courts have
rules pre-dating
Caperton that call for such procedures, however.
Because ensuring objective, disinterested decisions on disqualification requests in state
supreme courts is a goal of the utmost importance, we highlight the following model rules
that apply to recusal by state supreme court justices:
•
Georgia: Under the Rules of the Supreme Court of Georgia, if a justice subject to a
disqualification request declines to recuse, the remaining Justices decide the motion
to disqualify.
20 To ensure a full quorum, the disqualified or non-participating justice
is replaced “by a senior appellate justice or judge, a judge of the Court of Appeals or
a judge of a superior court whenever deemed necessary.”
21 According to Justice
Harold D. Melton of the Georgia Supreme Court, the justices of the Georgia
Supreme Court rigorously apply the appropriate recusal rules whenever there is any
question of disqualification, and there has never been an occasion in which the
remaining members of the court have disqualified a justice for improper or
questionable reasons.
22 There have been no proposals to alter Georgia’s procedures
to eliminate the secondary review of justices’ recusal decisions.
23
•
Mississippi: Prior to adoption of Mississippi’s current recusal rules in 2002, there
was perception among judges and justices that lawyers were attempting to use recusal
motions to gain tactical advantages.
24 According to Mississippi Chief Justice William
Waller — who served as chair of the rules committee when the current provisions
were adopted — addressing this gamesmanship concern was critical because “the
issue of recusal is very important from the standpoint of public confidence in judges
and the judiciary.”
25 Under the rules adopted in 2002, a targeted justice makes the
first decision on a recusal motion. If the justice denies the motion, the decision is
6
subject to review by the entire court upon the filing of a motion for
reconsideration.
26 If a justice of the Supreme Court is disqualified, the governor may
appoint a replacement.
27 According to Chief Justice Waller, following the adoption of
these procedures, the number of occasions in which litigants seek to disqualify a
justice has declined.
28
•
Vermont: In the Vermont Supreme Court, recusal procedures providing for full-
Court review of recusal requests have been in place for at least twenty years and have
reportedly worked extremely well.
29 Under Vermont’s rules, upon receipt of a
disqualification request, a challenged justice must either voluntarily recuse or turn the
disqualification decision over to the other members of the Court. The challenged
justice may not take part in this decision.
30 The Chief Justice is authorized by statute
to appoint a retired justice or judge, or a superior judge, to a “special assignment” on
the Supreme Court as a result of a disqualification.
31 The Court will generally replace
a disqualified Justice with a retired former Justice.
32 In practice, given Vermont’s
collegial bench, justices will often informally consult one another regarding the need
for recusal. Many times despite a justice’s inclination to recuse out of an abundance
of caution, his colleagues will offer their opinion that doing so is unnecessary.
33
Thus, even Vermont’s informal practices achieve the same goals as the formal rule
— that is, the independent review of a disqualification question by decision makers
other than the challenged judge himself or herself.
•
Texas: When a justice on the Supreme Court of Texas is presented with a motion
for recusal, she or he must either recuse from all participation in the case or certify
the question to the rest of the court sitting
en banc. The rest of the court then decides
the disqualification question by a majority vote.
34 If a justice of the Supreme Court is
disqualified, the chief justice will certify to the governor, who can appoint a
replacement judge.
35
•
Michigan: Previously, Michigan’s rules “provide[d] no avenue to redress a decision
by a justice who refuse[d] to disqualify himself,
no matter how much evidence [was]
produced that the justice [was] indeed actually biased
.”36 Under a rule adopted by the
Michigan Supreme Court in 2009, however,
37 if a challenged justice denies a motion
for disqualification, the litigant may appeal to the full court, and “[t]he entire Court
shall then decide the motion for disqualification
de novo.”38
In addition to these states, there are several others — including Alaska, Louisiana, Nevada,
and Oregon — in which a challenged supreme court justice does not have the sole,
unreviewable discretion to decide a recusal request.
39 Other states should adopt similar rules.
All the rules cited above would represent an important step forward in states that currently
vest justices with unreviewable discretion to decide their own recusal motions. The language
from Georgia’s Supreme Court Rules is among the most straight-forward, simple
formulations of a procedure that ensures a challenged justice is not the final arbiter of a
motion for his or her disqualification:
7
A motion to disqualify shall be decided by the remaining Justices of the
Court. A Justice may, however, voluntarily disqualify himself or herself prior
to the matter being decided by the remaining Justices.
40
Other states should adopt a rule like Georgia’s.
B. States should require transparent decision-making on recusal requests.
For the reasons outlined above, review by an objective decision maker is critically important.
Absent transparent, written rulings on recusal requests, however, meaningful review is
impossible because there is no record of the reasoning supporting denial that can be
reviewed on appeal. Accordingly, states should adopt rules requiring disqualification
decisions to offer transparent and reasoned decision-making.
As explained in the Brennan Center’s recusal report, a failure to explain recusal decisions
offends the fundamental principle “that officials must give public reasons for their actions in
order for those actions to be legitimate.”
41 Failing to explain the reasoning behind a recusal
decision makes it impossible for a reviewing court to grapple with the underlying rationale or
facts. It denies other judges and courts precedent for use in later cases. And perhaps most
significantly, a failure to explain the reasons why a judge has denied a recusal request leaves a
litigant who believes the judge’s impartiality can be questioned with no explanation as to why
the judge rejects this position.
Moreover, in a state that holds judicial elections, a failure to explain disqualification decisions
deprives the public of valuable information concerning how judges or justices address
challenges to their impartiality. By contrast, a process “of written decision and with written
reasons . . . provides the public with more knowledge of how the justices conduct the
people’s judicial business.”
42
For all these reasons, states should adopt a requirement that recusal decisions be rendered in
writing or on the record. To be sure, courts must retain the flexibility to reject frivolous
disqualification requests and motions that are untimely or facially or procedurally insufficient
without requiring written decisions; to require otherwise would impose an unnecessary
administrative burden that would drain judicial resources without justification. But for
procedurally sound disqualification motions alleging facts which, if true, would necessitate
disqualification, states should require reasoned, transparent decisions.
We urge states to adopt rules based on the straightforward procedure in the Michigan
Supreme Court, which requires that when a justice is faced with a disqualification decision,
“the challenged justice shall decide the issue and publish his or her reasons about whether to
participate.” If the justice denies the request, the denial is reviewed by the full court, and on
review:
The Court’s decision shall include the reasons for its grant or
denial of the motion for disqualification. The Court shall
issue a written order containing a statement of reasons for its
grant or denial of the motion for disqualification. Any
concurring or dissenting statements shall be in writing.
43
8
II. STATES WITH ELECTED JUDGES SHOULD ADOPT RULES
PROVIDING FOR DISQUALIFICATION WHEN CAMPAIGN
SPENDING RAISES REASONABLE QUESTIONS ABOUT A JUDGE’S
IMPARTIALITY.
A. States should adopt rules recognizing that a judge’s impartiality may
reasonably be questioned, and disqualification may be necessary,
because of judicial campaign spending by litigants or their attorneys.
Rules clarifying when recusal is appropriate based on campaign spending have grown
increasingly necessary as the price-tags associated with running for judicial office have
steadily risen. A comprehensive survey released in 2010 revealed a series of sobering
statistics.
44 Spending on state Supreme Court elections more than doubled in the past
decade, from $83.3 million in 1990-1999 to $206.9 million in 2000-2009. Twenty of the 22
states that hold competitive elections for judges set all-time spending records in the last
decade. Meanwhile, a select group of “super spenders” is outgunning small donors: in 29 of
the costliest elections of the last decade, the top five spenders each averaged $473,000 per
election to install judges of their choice, while all other contributors averaged only $850
apiece. Finally, a television advertising arms race has arisen, creating a need for money that
only special interests can satisfy. In 2007-08, $26.6 million was spent on TV ads in elections
for state high courts, the record for a two-year election cycle. In 2008, special interest
groups and political parties paid for 52% of all television advertising — and 87% of negative
TV ads.
The U.S. Supreme Court’s decision in
Caperton recognized that serious threats to public
perceptions of judicial impartiality can arise when judges preside over the cases of campaign
contributors or parties who make independent expenditures in the judges’ election
campaigns. As discussed above,
Caperton involved campaign spending by the CEO of the
Massey coal company during the 2004 judicial elections in West Virginia, when Massey was
appealing a $50 million damages award. Knowing that the State Supreme Court of Appeals
would consider the appeal, Massey’s CEO spent $3 million in support of Judge Brent
Benjamin, who was challenging an incumbent justice on the high court. The CEO’s
independent expenditures on Benjamin’s behalf exceeded the total amount spent by all other
Benjamin supporters — and by Benjamin’s own campaign committee. After Benjamin won
by fewer than 50,000 votes, he cast the tie-breaking vote to throw out the $50 million
damages award being appealed by his principal benefactor’s company.
The U.S. Supreme Court concluded that, given the circumstances of Benjamin’s election —
and the extraordinary support he had received from Massey’s CEO — there was a “serious,
objective risk of actual bias”
45 that disqualified Benjamin from hearing the case. The Court
recognized, further, that it is imperative for states to adopt recusal rules targeting campaign
spending, even in circumstances less extreme than those in
Caperton.
With million-dollar judicial campaigns bankrolled by special interest groups becoming the
norm in judicial elections across the country, states — consistent with the landmark
Caperton
decision — should make disqualification mandatory when campaign spending raises
reasonable questions about judicial impartiality.
9
Prior to
Caperton, only two states — Alabama and Mississippi — had rules that addressed
recusal and campaign spending, but these rules were not effective. Alabama’s statutory
provision would require recusal of an appellate judge who received more than $4,000 (or a
circuit judge who received more than $2,000), but it was never precleared under the Voting
Rights Act by the U.S. Department of Justice, and has never been enforced.
46 Mississippi’s
judicial ethics code contains a provision permitting litigants to file a recusal motion when an
opposing party (or counsel) is a “major donor” to the judge, but Mississippi’s provision
merely permits litigants to seek recusal; it does not mandate recusal when a specific
contribution threshold is exceeded.
47
Since the landmark ruling in
Caperton, states have reacted in varied ways to the threat that
judicial campaign spending presents to public confidence in the judiciary. A handful of states
ignored
Caperton’s lessons and rejected stronger disqualification rules. Nevada, for example,
rejected a proposal to mandate disqualification when a judge received a campaign
contribution of $50,000 or more from a party appearing before her. Wisconsin weakened
recusal standards with a rule that says campaign contributions or expenditures can never be
the sole basis for recusal. By contrast, nine states — Arizona, California, Iowa, Michigan,
Missouri, New York, Oklahoma, Utah, and Washington — adopted rules that, to varying
degrees, address money on the judicial campaign trail. And very promising new rules are
pending in Georgia and Tennessee. We detail these rules in the chart below, and in the
following text.
Recusal Reform Adopted
Arizona Recusal is required if a party or lawyer, in previous 4 years, made contributions to a
judge exceeding $840, effective September 1, 2009.
California A judge is disqualified if he or she has received contributions exceeding $1,500 from
party or lawyer in preceding election (or in anticipation of upcoming election).
Iowa Court rule adopted in May 2010 mandates disqualification when the “judge’s
participation in a matter or proceeding would violate due process of law as a result
of: (a) Campaign contributions . . . or (b) Independent campaign expenditures.”
Michigan Requires disqualification when a “judge, based on objective and reasonable
perceptions,” has . . . “a serious risk of actual bias impacting the due process rights
of a party as enunciated in
Caperton
.”
Missouri Conduct rules urge candidates for judicial office “to consider whether his or her
conduct may create grounds for recusal . . . pursuant to
Caperton
.”
New York Rule effective July 15, 2011 provides that “no case shall be assigned” to a judge to
whom party or lawyers donated $2,500 in preceding 2 years.
Oklahoma Requires recusal when a judge, within previous 4 years, has received contributions
from a party or lawyers “in an amount that a reasonable person would believe could
affect the fairness of the judge’s consideration of a case . . . . The judge should
consider what the public perception would be as to such contributions affecting the
judge’s ability to be fair to the parties.”
Utah Disqualifies a judge if he or she has within the previous three years received more
than $50 from a party or lawyers.
Washington Requires recusal when a judge’s impartiality can reasonably be questioned based on a
party’s contributions or independent spending, considering the total amount of
support and the timing of the spending relative to the pendency of matter at issue.
10
Recusal Reform Pending
Georgia Pending proposal would require recusal if the judge has received an aggregate
amount of contributions or support that would create a question as to the judge’s
impartiality, taking into consideration the amount, timing, and impact of the
spending. Proposal pending final adoption.
Tennessee Pending proposal would impose a “flexible standard” that would disqualify judge
when a party or lawyer has given such contributions or support to the judge’s
campaign that the judge’s impartiality may reasonably be questioned, considering a
range of factors including the amount and timing of the financial support, and the
relation of the aggregate spending in support of the judge to the total spending in the
campaign.
1. The ABA’s Model Code and
Per Se, Automatic Recusal Rules
Since 1999, the ABA’s Model Code of Judicial Conduct has contained a provision, Rule
2.11(A)(4), that provides for automatic disqualification when a judge learns that a party or
the party’s lawyers have made campaign contributions exceeding a specific threshold within
a particular number of years.
48
The
per se rule in the Model Code is simple to apply — when contributions exceed a preset
level, disqualification is automatic, with no further analysis required. But Rule 2.11(A)(4)
does not sufficiently address the full array of contemporary campaign spending, seriously
undermining its value even if it were adopted in states with the highest judicial election
spending. The rule applies only to
contributions made directly to judicial candidates. It does
not call for recusal based on
independent campaign expenditures of the sort that triggered
disqualification in
Caperton. It also opens the door to gamesmanship by lawyers and litigants,
who may attempt to engage in judge-shopping by making a disqualifying campaign
contribution to a disfavored judge.
Perhaps in part because of these criticisms, to date only two states,
Utah and Arizona, have
adopted the Model Code’s rule. Utah’s Rule 2.11(A)(4) was adopted effective April 1, 2010.
It requires recusal when a party, party’s lawyer, or party’s lawyer’s law firm has within the
previous three years contributed more than $50 to the judge.
49 Arizona’s Supreme Court
amended its code effective September 1, 2009, and requires recusal if a party, party’s lawyer,
or party’s lawyer’s law firm has within the previous 4 years made aggregate contributions to
the judge exceeding a threshold tied to the state’s campaign finance laws (and currently set at
$840).
50
The low disqualifying thresholds in the two states to adopt Rule 2.11(A)(4) are explained in
part by the fact that all judges in Utah and most judges in Arizona are appointed and run
only in unopposed retention elections which have seen very low levels of spending.
51 (Only
some superior court judges in Arizona run in traditional, contested elections.) None of the
judicial elections in these states have featured the same outsized spending witnessed in states
with contested judicial elections for their high courts, and none of the 25 states with the
highest levels of judicial election spending in the last decade have adopted a version of Rule
2.11(A)(4).
52
11
Two additional states,
California and New York, adopted disqualification rules in 2011 that,
while not using the language of the ABA’s model rule, do impose a
per se disqualification
policy based on a threshold contribution level.
Under a provision in California’s civil procedure rules effective January 15, 2011, a judge is
disqualified if he or she has received contributions exceeding $1,500 from party or lawyer in
anticipation of an upcoming election, or in conjunction with the judge’s preceding election
(if it occurred in the previous six years).
53
A new administrative rule in New York prohibits judges from hearing the cases of parties or
lawyers if they or their law firms have contributed more than $2,500 in the last two years (or
if, collectively, the parties, lawyers or firms have contributed $3,500 in the last two years).
54
Uniquely, the New York rule functions at the administrative level, and prevents a case from
being assigned in the first instance to a judge with a “campaign contribution conflict.” (By
contrast, most state disqualification rules contemplate disqualification of a judge after the
case involving a potential conflict has already been assigned to the judge.) By preventing
conflicts from arising at the outset, New York’s rule commendably strives to obviate the
need for judges to grapple with close ethical questions involving conflicts of interest.
Because the rule only became effective on July 15, 2011, however, it is not yet possible to
determine how effectively court administrators will be able to carry out the rule’s mandate.
Like Model Rule 2.11(A)(4), both the California and New York rules apply only to campaign
contributions, and because they do not reach independent campaign spending, they are
incomplete — if promising — rules. Both rules compare favorably to the Model Rule,
however, insofar as they contain a waiver provision designed to counter the risk of
gamesmanship. California’s rule indicates that the presumptive disqualification “may be
waived by the party that did not make the contribution”
55 and New York’s rule, while not
specifying precisely how the waiver procedure will work, calls upon the Chief Administrator
of the Courts to “establish a procedure whereby parties may waive application of this Rule
and permit assignment of a judge affected by a campaign contribution conflict.”
56
Though Arizona, Utah, California, and New York have taken laudable steps forward on the
issue of campaign spending conflicts, their current rules represent incomplete solutions.
Because of gamesmanship concerns with an
per se rule that lacks a waiver provision, and
because any bright-line contribution rule fails to address conflicts of interest that can result
from independent expenditures, we urge states to consider models other than that included
in the existing Model Rule 2.11(A)(4). States would be better served, instead, to adopt
disqualification rules that address all forms of campaign spending, including both
contributions and independent expenditures, and that evaluate the totality of circumstances
surrounding electioneering expenditures.
2. Progress toward an Ideal Post-
Caperton Disqualification Rule
The ideal campaign spending disqualification rule should certainly take into account the
overall amount a party (or counsel) spent on contributions and expenditures. But it should
also respond to a number of additional factors that bear on perceptions of a judge’s
impartiality, including the relative size of a party’s contributions in comparison to the total
12
amount of money raised by a judge and his or her opponent(s); the ratio of the party’s
spending to the total amount spent in the election; the apparent effect of the party’s
spending on the results of the election; and whether the party’s spending occurred while the
litigation in question was pending or imminent.
57
Since
Caperton, several states have implemented new policies that eschew the use of per se
disqualification thresholds and, to varying degrees, respond to the different forms of
spending seen in today’s expensive judicial election environment. Some of these rules
promise to been less effective than others, but more recently, very promising policies have
been proposed.
The
Oklahoma Supreme Court adopted a rule in December 2010 that requires recusal when
a judge knows or learns that a party (or counsel) has, within the previous four years, made
“aggregate contributions” to the judge “in an amount that a reasonable person would believe
could affect the fairness of the judge’s consideration of a case involving the party [or
counsel]. The judge should consider what the public perception would be as to such
contributions affecting the judge’s ability to be fair to the parties.” While the Oklahoma rule
appropriately clarifies that perceptions of impartiality should be answered from the point of
view of an objective, reasonable observer, the rule by its terms is limited to contributions,
and does not explicitly reach independent expenditures. The rule notes that “[c]ontributions
within the limits allowed by the Oklahoma Ethics Commission will not normally require
disqualification unless other factors are present.” While the “other factors” language
arguably leaves room for recusal in a case of extraordinary independent spending, a better
rule would explicitly address independent expenditures.
Iowa
’s Supreme Court adopted a new Rule 51:2.11(A)(4), effective May 3, 2010, that
mandates disqualification when “[t]he judge knows or learns . . . that the judge’s participation
in a matter or proceeding would violate due process of law as a result of: (a) Campaign
contributions . . . or (b) Independent campaign expenditures . . . .” The rule wisely
acknowledges that perceptions of judicial impartiality may be affected by independent
spending as much as by contributions. In requiring recusal only in situations extraordinary
enough to represent a constitutional due process violation, however, the rule fails to reach
circumstances that, while not giving rise to questions of constitutional significance, still
involve substantial conflicts of interest and raise doubts about judges’ impartiality. The
Caperton
Court invited states to adopt recusal rules more rigorous than the due process floor
it recognized,
58 but the new rule in Iowa leaves this challenge unanswered: by tying its new
recusal trigger to the constitutional threshold, Iowa’s rule is silent on a range of
circumstances that would prompt reasonable questions about judicial impartiality and render
recusal appropriate.
Changes recently adopted by the high courts of
Missouri and Michigan also explicitly
incorporate
Caperton’s due process holding — and are therefore open to the same criticism as
Iowa’s new rule. The Missouri Supreme Court in December 2010 added a comment to its
judicial conduct code urging candidates for judicial office “to consider whether his or her
conduct may create grounds for recusal . . . pursuant to
Caperton . . . or whether the conduct
otherwise may create grounds for recusal . . . if the candidate is elected to or retained in
judicial office.”
59 The Michigan Supreme Court adopted a rule in November 2009 that,
similarly, provides that judicial disqualification is warranted when “the judge, based on
13
objective and reasonable perceptions, has . . . a serious risk of actual bias impacting the due
process rights of a party as enunciated in
Caperton.”60
A more promising disqualification rule was adopted by the Supreme Court of
Washington,
effective January 1, 2011. The Washington rule provides that recusal may be appropriate
when a judge’s impartiality can reasonably be questioned based on a party’s financial support
for the judge — including both direct contributions and independent spending.
61 The rule
appropriately suggests consideration of the amount of financial support provided by a party
relative to the total amount of the financial support for the judge’s election, as well as the
timing between the financial support and the pendency of the matter in question.
Washington’s rule, however, appears imperfect in that it evidently allows a judge subject to a
recusal request to make a subjective decision as to whether an objective observer could
reasonably question the judge’s impartiality. An ideal rule would eliminate this subjectivity
and give the final word on disqualification to an independent decision-maker.
The high courts of Oklahoma, Iowa, Missouri, Michigan, and Washington must be
applauded for their national leadership in recognizing the impact that campaign spending
can have on the perception — if not reality — of judicial impartiality. The rules these courts
adopted represent important steps forward in modernizing recusal practice. As supreme
courts in other states look to develop rules responding to judicial campaign spending, they
should take the best aspects of these courts’ rules, address their shortcomings, and
implement comprehensive rules.
As state courts look to do so, they would benefit from consulting two exemplary rules that
are now being considered by the high courts of Tennessee and Georgia.
Currently pending before the Supreme Court of
Tennessee is a very promising proposal
developed by a task force of the state bar association that was formed in 2009 to review the
state’s judicial conduct code. Among many salutary features of the proposed rule is that it
reaches such factors as the amount of contributions and expenditures, the timing of the
support, and the relationship between the campaign spending in question and the total spent
in the election. The proposed Tennessee rule is distinguished from the ABA’s model rule
because the Tennessee proposal “does not contain a dollar amount of support that triggers
disqualification, but instead has a more flexible standard.”
62 The proposed rule calls for
recusal when “a party, a party’s lawyer, or the law firm of a party’s lawyer has made
contributions or given such support to the judge’s campaign that the judge’s impartiality
might reasonably be questioned.”
63 The rule’s comments then provide a detailed list of
circumstances that should be considered in assessing whether recusal is appropriate:
(1) The level of support or contributions given, directly or indirectly, by a
litigant in relation both to aggregate support (direct and indirect) for the
individual judge’s campaign and to the total amount spent by all
candidates for that judgeship;
(2) If the support is monetary, whether any distinction between direct
contributions or independent expenditures bears on the disqualification
question;
(3) The timing of the support or contributions in relation to the case for
which disqualification is sought; and
14
(4) If the supporter or contributor is not a litigant, the relationship, if any,
between the supporter or contributor and (i) any of the litigants; (ii) the
issue before the court, (iii)the judicial candidate or opponent, and (iv) the
total support received by the judicial candidate or opponent and the total
support received by all candidates for that judgeship.
64
A proposed amendment to the
Georgia Code of Judicial Conduct also provides model
language. The recusal reform effort was originally spearheaded by a Georgia legislator in
response to
Caperton and general concerns about judicial elections; but it was ultimately a
committee with representatives from each class of court within the state that produced the
proposed amendments.
65 Given that Georgia is a diverse state whose rules cover many
classes of courts, with very different elections, the committee found it would be “difficult to
formulate an appropriate one-size fits all” disqualifying threshold.
66 The final proposal,
therefore, conditioned the disqualification decision on a broad range of factors that could
affect impartiality, including contributions and independent spending, and does not limit
recusal to situations of constitutional magnitude. Moreover, because Georgia already has
procedures to ensure that final decisions on disqualification are not made by the challenged
judge him or herself, objective decision-makers would apply the proposed rule. Justice
Harold Melton, a member of the committee that drafted the rule, stressed that the flexible
proposal fulfills the need for a “practical rule that is not overly restrictive from a
constitutional standpoint.”
67
Georgia’s proposal would require a judge to recuse when his or her impartiality might
reasonably be questioned because:
[T]he judge has received an aggregate amount of campaign contributions or
support so as to create a reasonable question as to the judge’s impartiality.
When determining impartiality with respect to campaign contributions or
support, the following may be considered:
(i) amount of the contribution or support;
(ii) timing of the contribution or support;
(iii) contributor’s or supporter’s relationship to the parties
(iv) impact of contribution or support;
(v) nature of contributor’s prior political activities or support and
prior relationship with judge;
(vi) nature of case pending and its importance to the parties or
counsel;
(vii) contributions made independently in support of judge over and
above the maximum amount which may be contributed directly to the
candidate; and
(viii) any other factor relevant to the issue of campaign support that
causes the judge’s impartiality to be questioned.
68
The factors considered under the proposed rules in Tennessee and Georgia received the
imprimatur of a majority of the U.S. Supreme Court in
Caperton, and were endorsed by the
Conference of Chief Justices.
69 States in which judges sit for elections should adopt recusal
rules patterned on these proposed rules.
15
B. States should require litigants (and counsel) to disclose campaign
contributions or expenditures made in support of (or opposition to)
any judge or judges hearing their case.
Since meaningful disqualification practice vis-à-vis campaign spending is impossible without
disclosure of the spending involved in judicial campaigns, robust disclosure provisions are of
paramount importance: without West Virginia’s campaign finance disclosure rules, for
example, the fact that Justice Benjamin’s primary benefactor was Massey’s CEO may not
have ever come to light, and the
Caperton litigation would have taken a different course.
State legislatures should adopt comprehensive disclosure rules that cover all campaign
spending, including contributions and independent spending in judicial elections. But even
in the absence of such legislation, state courts can adopt rules that will protect due process
when those spending money in judicial campaigns appear in court.
To assist judges in determining whether grounds for disqualification exist, state courts
should adopt rules requiring disclosure of campaign contribution data from judges and
litigants and their counsel. With respect to spending by litigants and lawyers, state courts
should require parties to file a disclosure affidavit listing any campaign contributions or
expenditures that they or their counsel have made in favor of (or against) the judge or judges
hearing their case (or to state that no such contributions or expenditures have been made).
Such a disclosure requirement would be similar to those already routinely required in federal
courts: corporate parties must file a statement identifying any parent corporation or publicly
held company that owns a significant portion of the corporate party’s stock,
70 for example,
and entities filing
amicus curiae briefs with the Supreme Court must disclose any support they
have received from a party.
71 By ensuring disclosure of all relevant facts pertaining to
campaign spending and its potential effects on judicial impartiality, such a rule would ensure
that judges are provided with all the information necessary to make informed, reasoned
decisions on recusal questions. It would also promote public confidence that every judicial
proceeding takes place before a fair, unbiased, and impartial tribunal.
The U.S. Supreme Court has repeatedly affirmed the role that campaign finance disclosure
rules play in ensuring the transparency that is vital to maintaining public confidence in
government institutions. As the Court recently observed in
Citizens United v. FEC, “[t]he
First Amendment protects political speech; and disclosure permits citizens . . . to react to the
speech . . . in a proper way. This transparency enables the electorate to make informed
decisions and give proper weight to different speakers and messages.”
72 If a voter’s interest
in making “informed choices in the political marketplace”
73 is a vital one, a litigant’s interest
in information that bears on the impartiality of the tribunal hearing her case is equally — if
not more — important: it implicates not just First Amendment rights, but the foundational
due process right to a fair proceeding before an impartial tribunal.
To ensure that judges evaluating recusal requests based on campaign spending have the facts
necessary to assess whether their impartiality could reasonably be questioned, states should
impose rigorous disclosure standards on litigants and their counsel. We offer the following
language as the basis for an effective disclosure rule:
16
At each stage of a proceeding, all parties shall file an affidavit disclosing any
campaign spending exceeding $[insert amount] made in the previous [insert
number] years by the party, the party’s lawyer, or the party’s lawyer’s law firm
in support of or against any judge or judges hearing the case.
“Campaign spending” shall include (i) direct contributions to the campaign
committee of the judge or the judge’s opponent; (ii) independent
expenditures made during the judge’s election campaign; and
(iii) contributions to a third party entity made with the intention or
reasonable expectation that the entity would use the contributions to make
independent expenditures during the judge’s election campaign.
In the case of parties who are natural persons, the affidavit shall disclose
campaign spending made by the party and members of the party’s immediate
family.
In the case of corporate parties, the affidavit shall disclose campaign
spending made by the party, its directors or officers, and any affiliates or
subsidiaries within the party’s control.
If no such campaign spending has been made, a party shall so state in the
affidavit.
States should adopt a rule based on this language to ensure that litigants have full
knowledge of any campaign spending by opposing parties or their counsel that might
call into question the fairness of the tribunal in which their causes are heard.
* * *
Shoring up public confidence in and support for the courts will be furthered by procedures
that provide independent review of recusal decisions; transparent, reasoned decisions on
disqualification requests; disclosure of spending in judicial campaigns; and recusal in cases
where this campaign spending raises reasonable questions about judicial impartiality. The
Brennan Center stands ready to work with state court leaders as they continue to develop
and implement recusal rules that advance judicial independence and increase the public’s
faith in fair, impartial courts.
17
1
Adam Skaggs is Senior Counsel in the Democracy program at the Brennan Center.
Andrew Silver is a graduate of NYU School of Law who worked with the Brennan Center’s Fair
Courts project as a third-year law student.
2
James Sample et al., Brennan Center for Justice, Fair Courts: Setting Recusal Standards
3
(2008),
available at http://www.brennancenter.org/recusal_standards (“Setting Recusal Standards
”).
3
See, e.g., Adam Skaggs, Brennan Center for Justice,
Buying Justice: The Impact of Citizens United
on Judicial Elections
4-7 (2010), available at
http://www.brennancenter.org/buying_justice (collecting
survey data on national and state level data demonstrating that Americans believe, by significant
margins, that campaign spending has an impact on judicial decision-making). A recent national
survey conducted by Harris Interactive showed widespread, bipartisan concern about the escalating
influence of money in judicial elections and its potential to erode impartiality.
See
Press Release,
Justice at Stake, Solid Bipartisan Majorities Believe Judges Influenced by Campaign Contributions
(Sept. 8, 2010),
available at
http://tinyurl.com/2c422fs. Among the findings of the survey were the
following: 71 percent of Democrats, and 70 percent of Republicans, believe campaign expenditures
have a significant impact on courtroom decisions.
Id.
Only 23 percent of all voters believe campaign
expenditures have little or no influence on elected judges.
Id.
In addition, 82 percent of Republicans,
and 79 percent of Democrats, say a judge should not hear cases involving a campaign supporter who
spent $10,000 toward his or her election.
Id.
Finally, 88 percent of Republicans, and 86 percent of
Democrats, say that “all campaign expenditures to elect judges” should be publicly disclosed, so that
voters can know who is seeking to elect each candidate.
Id.
4
129 S. Ct. 2252 (2009).
5
Id.
at 2265.
6
Id. at 2267 (quoting Republican Party of Minn. v. White
, 536 U.S. 765, 794 (2002) (Kennedy, J.,
concurring)).
7
See generally
James Sample et al., The New Politics of Judicial Elections 2000-2009: Decade
of Change (2010), available at http://www.brennancenter.org/NPJE09 (“
New Politics: Decade of
Change
”).
8
See
Press Release, Brennan Center for Justice, 2010 Judicial Elections Increase Pressure on
Courts, Reform Groups Say (Nov. 3, 2010),
available at
http://www.brennancenter.org/content/
resource/2010_judicial_elections_increase_pressure_on_courts_reform_groups_say/
.
9
See
Press Release, Brennan Center for Justice, Special Interest TV Spending Sets Record in
Wisconsin (Apr. 5, 2011)
, available at
http://www.brennancenter.org/content/resource/
special_interest_tv_spending_sets_record_in_wisconsin/.
10
See
Model Code of Judicial Conduct, Canon 2, R.2.11(A)(4) (2007).
11
See Sample, Setting Recusal Standards, supra
note 2. In addition, the Brennan Center has filed
amicus curiae
briefs in cases involving recusal standards (including in the landmark case
Caperton v. A.T.
Massey Coal Co
., 129 S. Ct. 2252 (2009)); testified on recusal before the Supreme Court of Wisconsin
in 2009 (our testimony is available at http://www.brennancenter.org/WI_recusal); and commented
on proposed recusal rules in numerous other states (
see, e.g., comments for Washington,
at
http://www.brennancenter.org/WA_recusal; Iowa,
at
http://www.brennancenter.org/IA_recusal;
and Michigan,
at
http://www.brennancenter.org/MI_recusal).
12
Caperton
, 129 S. Ct. at 2263.
13
Id.
18
14
Order Adopting Amendment 2.003 of the Michigan Court Rules, ADM File No. 2009-04
(Mich. S. Ct. 2009) (Kelly, C.J., concurring).
15
See, e.g., Gunter v. Murphy’s Lounge, L.L.C.
, 105 P.3d 676, 684 (Idaho 2005) (“The decision to
disqualify is left to the sound discretion of the trial judge himself.”);
Fid. Mgmt. & Research Co. v.
Ostrander
, 662 N.E.2d 699, 705 (Mass. 1996) (explaining that the trial judge has discretion over recusal
decisions).
16
See, e.g.
, Ky. Rev. Stat. Ann. § 26A.020 (LexisNexis 2010); Mont. Code Ann. § 3-1-805
(2010); Utah R. Civ. P. 63(b)(2)-(3) (2010); Vt. R. Civ. P. 40(e)(3) (2010); Tex. R. Civ. P. 18a;
Johnson v.
Pumjani
, 56 S.W.3d 670, 672 (Tex. App. 2001) (noting that disqualification motion should pass to
another judge automatically even if it is untimely or states insufficient grounds for recusal).
17
See, e.g.
, Ga. Super. Ct. R. 25.3 (2010) (requiring another judge to decide the merits of a
recusal motion after the targeted trial judge determines the motion is timely, the affidavit is legally
sufficient, and recusal would be authorized if some or all of the facts in the motion were true).
18
Mich. Ct. R. 2.003(D)(3)(a) (2010).
19
See generally James Sample, Court Reform Enters the Post-Caperton Era
, 58 Drake L. Rev. 787
(2010) (describing state recusal reform efforts after
Caperton
); Letter from J. Adam Skaggs, Counsel,
Brennan Center for Justice, to Hon. Henry Johnson, Jr., Chair, Subcomm. on Courts & Competition
Policy of the H. Comm. on the Judiciary (Dec. 15, 2009),
available at
http://www.brennancenter.org/recusal_hearing (same).
20
Ga. Sup. Ct. R. 26 (2010).
21
Id.
R. 57.
22
Telephone Interview with Harold Melton, Justice, Ga. Supreme Court (Mar. 30, 2011).
23
Id.
24
Telephone Interview with William Waller, Chief Justice, Miss. Supreme Court (Mar. 30,
2011). For example, under the previous rules an attorney might recognize a ground for recusal but
neglect to file a motion until the judge or justice took some adverse action. Mississippi’s rules now
address this concern by requiring lawyers to file a recusal motion within 30 days of a judge’s
appointment or first notice of an issue that gives rise to a need for recusal.
Id.
25
Id.
26
Miss. R. App. P. 48C(a)(iii) (2010).
27
Miss. Const. art. VI, § 165. According to Mississippi Chief Justice William Waller, the
governor will not appoint a replacement unless it is necessary to achieve a quorum. Telephone
Interview with William Waller,
supra
note 24.
28
Telephone Interview with William Waller, supra
note 24.
29
Telephone Interview with Len Swyer, Rules Attorney, Vt. Supreme Court (Apr. 11, 2011).
30
Vt. R. App. P. 31(e)(2) (2010).
31
Vt. Stat. Ann. tit. 4, § 22 (West 2010).
32
Id.
, Repoter’s Notes, 1986 Amendment.
33
Telephone Interview with Len Swyer, supra
note 29.
34
Tex. R. App. P. 16.3 (2010).
35
Tex. Gov’t Code Ann. § 22.005 (West 2010).
19
36
Order Adopting Amendment 2.003 of the Michigan Court Rules, ADM File No. 2009-04
(Mich. S. Ct. 2009) (Cavanaugh, J., concurring) (emphasis added).
37
See
Mich. Court Rule 2.003 (2010).
38
Id.
39
See, e.g.
, Alaska Stat. § 22.20.020(c) (2010); La. Code Civ. Proc. Ann. art. 159 (2010); Nev.
Rev. Stat. Ann. §1.225(4) (2010); Or. R. App. P. 8.30(3) (2010).
40
Ga. Sup. Ct. R. 26 (2010).
41
Sample, Setting Recusal Standards, supra
note 2, at 32 (footnote omitted).
42
Amendment of Rule 2.003 of the Michigan Court Rules, ADM File No. 2009-04 (Mich. S.
Ct. 2009) (Weaver, J., concurring).
43
Mich. Ct. R. 2.003(D)(3)(b) (2010).
44
See generally Sample, New Politics: Decade of Change, supra
note 7.
45
Id.
at 2265.
46
See Ala. Code § 12-24-2(c); Finley v. Patterson
, 705 So. 2d 834, 835 n.1 (Ala. 1997) (noting
that enforcement of Alabama’s rule is “in legal limbo” and not enforced because of concerns
regarding the lack of preclearance under the Voting Rights Act); Alabama Judicial Inquiry Comm’n,
Advisory Opinion 99-725
(Apr. 30, 1999), available at
http://www.alalinc.net/jic/opinions/Ao99-
725.htm.
47
See
Miss. Code of Judicial Conduct Canon 3E(2).
48
The rule was adopted in 1999 as Canon 3(E)(1)(e), and was retained in the 2007 revisions
to the model code as Rule 2.11(A)(4). It does not prescribe the specific monetary threshold that
triggers disqualification; rather, it contemplates that different states would adopt different thresholds
tied to the levels of judicial campaign spending in each state. In full, Rule 2.11(A)(4) provides for
disqualification when:
The judge knows or learns by means of a timely motion that a
party, a party’s lawyer, or the law firm of a party’s lawyer has within
the previous [insert number] year[s] made aggregate contributions
to the judge’s campaign in an amount that [is greater than $[insert
amount] for an individual or $[insert amount] for an entity] [is
reasonable and appropriate for an individual or an entity].
ABA Model Code of Judicial Conduct, Canon 2, Rule 2.11(A)(4) (2007).
49
Utah Code of Judicial Conduct, Canon 2, Rule 2.11(A)(4) (2010).
50
Ariz. Code of Judicial Conduct, Canon 2, Rule 2.11(A)(4) (2010).
51
Because of the extremely low disqualification threshold adopted in Utah ($50) and Arizona
($840), the rules adopted in those states are may spur lawsuits attacking the rules as First Amendment
violations that chill campaign speech. Though some have offered unpersuasive and fundamentally
misguided arguments that recusal rules on campaign spending implicate the First Amendment rights
of spenders or voters —
see, e.g., Patience Drake Roggensack,
Justice Roggensack: Rule Upheld First
Amendment Rights of Voters
, Wisc. State Journal, Dec. 3, 2009 — the First Amendment entitles no
party to choose the judge who hears its case. The Seventh Circuit recently rejected a First
Amendment challenge to a recusal rule after concluding that Indiana’s “recusal clause does not
present a constitutional issue at all,”
Bauer v. Shepard
, 620 F.3d 704, 718 (7th Cir. 2010), and a 2011
U.S. Supreme Court decision — in which Justice Scalia observed that there have not been “any
20
serious challenges to judicial recusal statutes as having unconstitutionally restricted judges’ First
Amendment rights,”
Nevada Comm’n on Ethics v. Carrigan
, 131 S. Ct. 2343, 2349 (2011) — made clear
that the Court would approach judicial recusal rules with substantial deference,
see
Rick Hasen,
Breaking News: Supreme Court Decides Nevada Commission on Ethics v. Carrigan
, Election Law Blog, June
13, 2011, http://electionlawblog.org/?p=19109 (arguing that
Carrigan
“leaves room for special
judicial recusal rules that are stricter than the rules which would apply to legislators . . . [and will] be
very helpful in defending judicial recusal rules against First Amendment challenge”). Nevertheless,
the likelihood of litigation challenges raises questions about the viability of establishing
per se
disqualification rules for
de minimis
campaign spending.
52
For details on campaign spending in the states with the most expensive judicial elections
over the last decade,
see generally Sample, New Politics: Decade of Change, supra
note 7.
53
See
Cal. Code. Civ. P. § 107.1(a)(9).
54
See
N.Y. R. Chief Administrator Part 151.1.
55
Cal. Code. Civ. P. § 107.1(a)(9)(D).
56
N.Y. R. Chief Administrator Part 151.1(C)(2).
57
See generally Caperton
, 129 S. Ct. 2252, 2263-64 (2009) (discussing how these factors
determine whether an interested party in a matter had a “significant and disproportionate influence in
placing the judge on the case . . .”).
58
Justice Kennedy’s majority opinion noted that “[s]tates may choose to ‘adopt recusal
standards more rigorous than due process requires.’” 129 S.Ct. at 2267 (quoting
Republican Party of
Minn. v. White
, 536 U.S. 765, 794 (2002) (Kennedy,J., concurring)). On this point, even the dissenting
Justices agreed.
See id.
at 2268-69 (Roberts, C.J., dissenting).
59
Mo. Code of Judicial Conduct Rule 2, comment (2010).
60
Mich. Code of Judicial Conduct, Rule 2.003(C)(1)(b) (2010).
61
See In re Adoption of the New Code of Judicial Conduct
, No. 25700-A-963, Rule 2.11(Wash. Sept.
9, 2010), http://www.courts.wa.gov/newsinfo/content/pdf/cjcOrder.pdf. Washington’s new Rule
2.11(D) provides, in full:
A judge may disqualify himself or herself if the judge learns by
means of a timely motion by a party that an adverse party has
provided financial support for any of the judge’s judicial election
campaigns within the last six years in an amount that causes the
judge to conclude that his or her impartiality might reasonably be
questioned. In making this determination the judge should
consider: (1) the total amount of financial support provided by the
party relative to the total amount of financial support for the
judge’s election, (2) the timing between the financial support and
the pendency of the matter, and (3) any additional circumstances
pertaining to disqualification.
62
In re: Petition for the Adoption of Amended Tennessee Code of Judicial Conduct Together with Changes
in Rules and Statutes
, Proposed Rule 2.11, Comparison to ABA Model Code,
available at
http://www.tba.org/judicialconductrules/TBAPetition_with_exhibits_022511.pdf.
63
Id.
, proposed Rule 2.11(A)(4).
64
Id.
21
65
Telephone Interview with Harold Melton, supra
note 22.
66
Id.
67
Id.
68
See Recusal Amendments to Code of Judicial Conduct: Canon 3
(July 16, 2010),
http://www.gabar.org/public/pdf/news/Recusal_AM10.pdf.
69
See Caperton v. Massey
, Brief of the Conference of Chief Justices as Amicus Curiae In
Support Of Neither Party (No. 08-22) (U.S. 2009),
available at
http://www.brennancenter.org/CCJ_amicus.
70
See
Fed. R. App. P. 26.1.
71
See
S. Ct. R. 37.6.
72
130 S. Ct. 876, 916 (2010).
73
Id.
at 914.
