On June 8, 2009, the U.S. Supreme Court decided the landmark case Caperton v. Massey. The Court disqualified a West Virginia judge from a case involving a coal company CEO who had spent $3 million to elect the judge. The Court said a “serious risk of actual bias” was created when the judge cast the tie-breaking vote to throw out a multi-million dollar damages award against his benefactor’s company. The Court also gave states a green light to adopt rigorous disqualification standards to address the conflicts of interest stemming from campaign cash in the courtroom.
Nearly two years later, 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 in Caperton.
The issue remains relevant, since judicial spending continues to spiral out of control, with spending from 2000–2009 more than doubling that seen in the 1990s. Polls demonstrate bipartisan concern for the ability of courts to dispense fair, impartial justice. In particular, polls show overwhelming public support for judges recusing themselves from cases involving major campaign supporters. In order to ensure public confidence in fair and impartial courts, state courts must accept the Supreme Court’s invitation in Caperton and demonstrate leadership by adopting strong recusal policies.
Since the ruling, and as reflected on the chart below, 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 promising new rules are pending 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. Many states made no attempts to strengthen disqualification rules at all.
To help states in adopting recusal standards in line with the Caperton decision, we advocate four primary recommendations. First, 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. Second, states should require transparent decision-making, including written rulings, on recusal requests. Third, 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. And finally, states should require litigants (and counsel) to disclose campaign spending related to any judge or judges hearing their case.
Finally, it is also worth noting that predictions that Caperton would cause a torrent of appeals turned out to be wholly unfounded. A Justice at Stake researcher found only 30 appeals nationally in the last two years that relied on Caperton to request recusal of a judge. And of those 30 cases, only five related to campaign spending. While of importance to the cause of justice, tougher recusal standards have not even prompted a trickle of new requests, let alone a flood.
For more information, see The New Politics of Judicial Elections and Promoting Fair and Impartial Courts through Recusal Reform.
Recusal Reform Defeated
Proposed legislation required recusal if a justice had received campaign contributions from a party or attorney in excess of $250. Bill died in 2009.
In 2009, reform commission recommended mandatory recusal if a judge received campaign contributions of $50,000 or more from party or lawyer in previous 6 years. Nevada Supreme Court rejected proposal.
Proposed legislation required recusal when judge received contributions totaling $1,000 over preceding 4 years. Bill died in committee in 2009.
Proposals to trigger recusal at $1,000 or $10,000 thresholds rejected by sharply divided Wisconsin Supreme Court in 2010. The Supreme Court instead modified conduct rules to state that neither a lawful campaign contribution nor any level of independent political spending, standing alone, can disqualify a judge.
Recusal Reform Adopted or Pending
Arizona’s Supreme Court amended conduct code, effective September 1, 2009, to require recusal if a party or lawyer, in previous 4 years, made contributions exceeding $840.
Under new provision in civil procedure rules, 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).
Under a proposal that is pending final adoption, a judge would have to recuse if the judge 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.
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 Supreme Court adopted rule in November 2009 that 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 Supreme Court in December 2010 added comment to its conduct rules urging candidates for judicial office “to consider whether his or her conduct may create grounds for recusal . . . pursuant to Caperton.”
Rule announced on February 15, 2011 provides that “no case shall be assigned” to a judge to whom party or lawyers donated $2,500 in preceding 2 years.
Court rule adopted in December 2010 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.”
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.
As of April 1, 2010, a judge is disqualified if he or she has within the previous three years received more than $50 from a party or lawyers.
Washington Supreme Court adopted rule effective January 1, 2011 that calls for 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.