Skip Navigation
Expert Brief

Judicial Recusal Reform – Two Years after Caperton

Nearly two years after the Supreme Court’s landmark decision in Caperton v. Massey, a majority of state courts have failed to adopt any recusal reform measures that respond to the threats identified in that case.

Published: June 2, 2011

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

Montana

Proposed legis­la­tion required recusal if a justice had received campaign contri­bu­tions from a party or attor­ney in excess of $250. Bill died in 2009.

Nevada

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.

Texas

Proposed legis­la­tion required recusal when judge received contri­bu­tions total­ing $1,000 over preced­ing 4 years. Bill died in commit­tee in 2009.

Wiscon­sin

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

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.

Cali­for­nia

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).

Geor­gia

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.

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

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

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.”

New York

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.

Oklahoma

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.”

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.

Utah

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

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.

Recusal Reform Defeated

Montana

Proposed legis­la­tion required recusal if a justice had received campaign contri­bu­tions from a party or attor­ney in excess of $250. Bill died in 2009.

Nevada

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.

Texas

Proposed legis­la­tion required recusal when judge received contri­bu­tions total­ing $1,000 over preced­ing 4 years. Bill died in commit­tee in 2009.

Wiscon­sin

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

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.

Cali­for­nia

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).

Geor­gia

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.

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

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

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.”

New York

Rule announced on Febru­ary 15, 2001 provides that “no case shall be assigned” to a judge to whom party or lawyers donated $2,500 in preced­ing 2 years.

Oklahoma

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.”

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

Recusal Reform Defeated

Montana

Proposed legis­la­tion required recusal if a justice had received campaign contri­bu­tions from a party or attor­ney in excess of $250. Bill died in 2009.

Nevada

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.

Texas

Proposed legis­la­tion required recusal when judge received contri­bu­tions total­ing $1,000 over preced­ing 4 years. Bill died in commit­tee in 2009.

Wiscon­sin

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

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.

Cali­for­nia

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).

Geor­gia

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.

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

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

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.”

New York

Rule announced on Febru­ary 15, 2001 provides that “no case shall be assigned” to a judge to whom party or lawyers donated $2,500 in preced­ing 2 years.

Oklahoma

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.”

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.

Utah

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

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.

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.

Utah

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

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.