Brennan Center, Justice at Stake Urge Recusal Reform in Michigan

For Immediate Release

Contact: Adam Skaggs, Brennan Center for Justice, 212–992–8976

Jeanine Plant-Chirlin, Brennan Center for Justice, 212–998–6289

Charlie Hall, Justice at Stake, 202–558–9454

State High Court Reviews Rules in Wake of Conflicts Involving Campaign Cash

New York – Citing rising spending on judicial elections and a recent U.S. Supreme Court ruling, two national legal affairs groups-Justice at Stake and the Brennan Center for Justice-today urged the Michigan Supreme Court to strengthen the state’s rules governing when judges must step aside in cases involving campaign supporters.

In a letter to Michigan’s Supreme Court, the groups called on the justices to add additional reforms to a list of three alternative court rules being studied so that everyone who goes to court can feel confident of getting a fair hearing before an impartial judge. 

“Strong and effective recusal rules are central to ensuring that courts remain accountable to the law instead of political pressure,” said the groups’ letter, which also praised Michigan’s justices for their leadership in initiating a review of the state’s recusal rules.  

From 2000 through 2008, Michigan state Supreme Court candidates raised just over $13 million, ranking it sixth nationally among the 21 states that elect Supreme Court justices. Last year, then-Chief Justice Cliff Taylor set a Michigan record by raising more than $1.8 million. From 1999–2008, Supreme Court candidates nationally raised $200.4 million, more than double the $85.4 million raised from 1989–1998. Much of the money is raised from lawyers and litigants with business before the courts.

The issue of potential conflicts in cases involving campaign backers received widespread national attention in June, when the U.S. Supreme Court ordered a West Virginia judge to step aside from a case involving a company whose CEO spent $3 million to help elect him.

“More than 3 in 4 Americans believes that campaign cash affects courtroom decisions, putting justice up for sale,” said Bert Brandenburg, executive director of Justice at Stake. “Michigan’s Supreme Court is taking a very positive step by reviewing how to ensure that recusal standards keep current with the growing arms race around judicial elections.”

“We applaud the Justices of the Michigan Supreme Court for addressing disqualification practice in Michigan,” added Adam Skaggs, Counsel at the Brennan Center for Justice. "Michigan has an opportunity to provide national leadership and to set an example for courts in other states as they work to ensure the appearance and reality of impartial, unbiased justice." 

Michigan’s Supreme Court announced early this year that it was seeking to revise its own disqualification rules. Although the court outlined three potential reforms, it invited the public to submit additional suggestions. The deadline for public comment was Friday.

Several of the Brennan Center/Justice at Stake recommendations were taken from an April 2008 Brennan Center report, “Fair Courts: Setting Recusal Standards.” Among the suggestions:

• Require outside review of recusal motions by an objective judge, so that no judge can have the last word on whether he or she should step aside. This reform was supported by 81 percent of the American public in a February 2009 Justice at Stake poll.

• Greater disclosure of campaign spending, both by judges hearing the case and by litigants who may have helped elect the judge.

• Recusal advisory bodies to help judges assess potential ethical conflicts, including whether it is appropriate to handle a case involving a campaign supporter.

• Greater judicial education.

To read the court’s three draft alternatives, click here.  

In their letter, the Brennan Center and Justice at Stake urged the court to avoid Alternative A, which would require judges to hear all cases, including those involving campaign supporters, unless a narrow list of specific conditions arose. Alternative B, which incorporated the idea that a judge must avoid not just actual bias, but the “appearance” of partiality, was deemed as too narrow to be effective.

The groups said that Alternative C, which said disqualifications could be considered even in situations not specifically outlined in the rule, formed the best starting point, but said it could be improved by adding other safeguards.

To read the Brennan Center/Justice at Stake letter, click here.

The Justice at Stake Campaign is a nonpartisan national partnership that seeks to keep courts fair, impartial and free from special interest influence. Its more than 50 national partners include the Michigan Campaign Finance Network, which also submitted a letter favoring recusal reforms.

The Brennan Center for Justice at NYU School of Law is a non-partisan public policy and law institute that focuses on fundamental issues of democracy and justice, including protecting fair courts. It combines scholarship, legislative and legal advocacy, and communications to obtain measurable change in the public sector.

Resources: To learn more about recusal, see the Brennan Center’s recusal page, or visit Justice at Stake’s online resource section concerning the Caperton v. Massey case.