Two Years after Caperton, Small Steps Forward, Many More Strides Needed

On the two-year anniversary of the Supreme Court hearing Caperton v. Massey, many states have failed to adopt the judicial recusal standards set forth by the court. It's time for states, and the ABA, to act. We must preserve the perception, and reality, of fair and impartial courts.

March 3, 2011

Two years ago, on March 3, 2009, the U.S. Supreme Court heard oral argument in the landmark case Caperton v. Massey, which concerned a coal company CEO who spent millions to elect a West Virginia judge who went on to throw out a multi-million dollar damages award against his company. That same day, major newspapers across the country—including the New York Times, the Washington Post, and USA Today—called for states to adopt disqualification rules addressing the tsunami of money that has flowed into state judicial elections over the last decade. All three papers bemoaned the incredible increase in spending and cautioned that it threatened public confidence in a fair and impartial judicial system.

The Caperton Court ruled that the Constitution compelled the West Virginia judge to step aside and let a wholly disinterested judge hear his benefactor’s case. The Court also gave states a green light to “adopt recusal standards more rigorous than [the Constitution] requires.” Legal observers applauded the ruling, and H. Thomas Wells, Jr., then-president of the American Bar Association, promised that the ABA would help states respond to the invitation by developing “a series of guidelines for courts to assess whether contributions to judges’ campaigns implicate the due process rights of parties appearing before them.”

Despite the ABA’s initial call for new disqualification standards, it has not yet issued any guidelines.  And while 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 in Caperton. The Brennan Center for Justice recently issued a detailed paper describing how states have reacted to the threat judicial campaign spending presents to public confidence in the judiciary. Unfortunately, as the paper shows, in the two years since the Supreme Court heard Caperton, the promise of the decision and its broad support remains unfulfilled.

Two states essentially ignored Caperton’s lessons by rejecting strengthened disqualification rules. Nevada rejected a proposal to make disqualification mandatory 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.

There has been some progress, though. Eight states—Arizona, Iowa, Michigan, Missouri, New York, Oklahoma, Utah, and Washington—adopted rules that, to varying degrees, address money on the judicial campaign trail. And promising new rules have been proposed in Georgia and Tennessee.

But the remaining states have failed to take any meaningful action at all. In some cases, recommendations have been made to the state supreme court, but formal rules have not yet been codified. In other states, bills have been introduced in the legislature and failed to garner sufficient support. Some states made no attempts to strengthen disqualification rules at all.

Meanwhile, the ABA has also failed to live up to the promise of its post-Caperton statements. In fact, the ABA recently tabled—at least until its annual meeting in August—an initiative that would have urged states to strengthen disqualification rules. The proposal called for disclosure by litigants of all campaign spending involving the judge before whom they appear, recusal where spending raises questions about the judge’s impartiality, and meaningful review of all decisions rejecting a recusal motion. The ABA may yet adopt meaningful disqualification rules, though. Recognizing the great importance of the issue to public confidence in the judiciary, ABA President Stephen Zack has signaled strong support for meaningful recusal reform, and has called for adoption of robust standards at the ABA’s annual meeting in August.

Action by the ABA—and the remaining states—is crucial. Judicial spending continues to spiral out of control, with spending in the decade from 2000-2009 more than doubling that seen in the 1990s. Recent polling demonstrates increasing bipartisan concern for the ability of courts to dispense fair, impartial justice. State courts must accept the Supreme Court’s invitation in Caperton and demonstrate leadership by adopting policies proportional to this public crisis in confidence regarding fair and impartial courts.

The Brennan Center’s paper offers a blueprint for meaningful reform, and specifically recommends four priorities:

  1. 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, there must be prompt, meaningful review of the denial.
  2. States should require transparent decision-making, including written rulings, on recusal requests.
  3. States should adopt rules recognizing that judges’ impartiality may reasonably be questioned, and disqualification made necessary, because of campaign spending by litigants or their attorneys.
  4. States should require litigants (and counsel) to disclose campaign spending related to any judge or judges hearing their case.

Adopting these policies will let states go a long way to protecting the perception—and reality—of fair and impartial courts.