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Ms. Donna Humpal
Iowa Supreme Court
1111 East Court Avenue
Des Moines, Iowa 50319
Re: Proposed Iowa Code of Judicial Conduct
Dear Clerk Humpal:
The Brennan Center for Justice at NYU School of Law and the Justice at Stake Campaign commend the Justices of the Iowa Supreme Court for their leadership regarding disqualification practice in Iowa. As a growing number of state judiciaries reconsider their disqualification practices, Iowa has an opportunity to provide national leadership even as it serves the demands of its own citizens for equal and impartial justice. In connection with those proposals, we respectfully submit the following comments.
The Brennan Center and the Justice at Stake Campaign have urged states to adopt recusal standards that will reassure citizens that their courts will be fair and impartial, in fact and in appearance. We are part of a national coalition of concerned civic and legal leaders promoting substantive and procedural reforms, seeking in particular to reduce situations where judicial campaign conduct, campaign cash, or special interest pressure could cast the impartiality of judges into doubt. In 2008, the Brennan Center issued a report, Fair Courts: Setting Recusal Standards, which details the increasing threats to the impartiality of state courts and the ways in which robust recusal standards may help to safeguard due process and public trust in the judiciary. The Brennan Center and Justice at Stake have also filed amicus curiae briefs in cases involving impartial courts and recusal standards — including, most recently, in the landmark U.S. Supreme Court case of Caperton v. A.T. Massey Coal Co.
It is worth noting that firmer recusal standards enjoy overwhelming public support. For example, a February 2009 national poll conducted for Justice at Stake by Harris Interactive revealed that more than 80 percent of the public believes judges should avoid cases involving major campaign supporters. And 81 percent believe a disinterested judge should have the last word on recusal motions, not the judge whose objectivity is being challenged.
The campaign contributions provisions should include independent expenditures and reach further than due process violations
We believe that Rule 51:2.11(A)(4) is a step in the right direction, but have two major concerns. First, the proposed rule refers only to contributions, not to independent expenditures, which caused the appearance of impropriety addressed in Caperton. Any recusal rule the Court adopts should reach both direct campaign contributions and independent expenditures if it is to adequately address the effects that excessive campaign spending can have on the public perception of an independent and impartial judiciary.
The Caperton case offers the clearest example of why both forms of spending must be addressed. In Caperton, the U.S. Supreme Court held that, given Don Blankenship’s expenditure of approximately $3 million to support Brent Benjamin’s campaign for West Virginia’s highest court, it was necessary for Justice Benjamin to recuse himself from hearing Mr. Blankenship’s case. But, of the $3 million Blankenship spent, only $1,000 took the form of a direct contribution to then-Judge Benjamin’s campaign. The remainder comprised independent expenditures Blankenship made either directly or through an independent “527” organization called “And for the Sake of the Kids.” The Supreme Court’s decision in Caperton recognized that substantial campaign spending can lead to reasonable questions about a judge’s impartiality, whether the spending takes the form of direct contributions or independent expenditures.
The close relationship – if not equivalence – of contributions and independent expenditures in the context of judicial elections, and its potential impact on perceptions of judicial impartiality, means that a good recusal rule should reach both types of spending. We urge the Court to adopt a rule that addresses all forms of campaign spending. Indeed, the preferred rule would call on judges assessing disqualification to consider the totality of circumstances surrounding a litigant’s campaign spending – including not just the gross amount spent on contributions and expenditures, but also the relative size of the party’s contributions in comparison to the total amount of money contributed to the campaign; 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.
Second, Rule 51:2.11(A)(4) calls for disqualification only when there is a due process violation, a very high floor to reach. We urge rewriting the rule to call for disqualification along the lines of when “the judge’s participation in a matter or proceeding would give rise to a serious, objective risk of actual bias on the basis of campaign contributions or independent campaign expenditures on behalf the judge or an opposing candidate.”
All disqualification decisions should be in writing and should explain the grounds for the decision.
Rule 51:2.11(C) says that, if the judge believes disqualification is warranted, s/he may disclose on the record the reason(s) disqualification is appropriate. Rule 51:2.11(C) does not contain a provision saying that a judge should disclose anything on the record (or in a written opinion) if s/he concludes disqualification is not warranted. We urge a rule requiring that any decision on recusal (whether granting OR denying) be rendered in writing.
It is critically important — for litigants, for the courts, and for the public at large — that disqualification decisions offer transparent and reasoned decision-making. As explained in the Brennan Center’s recusal report, a failure to explain recusal decisions “allows judges to avoid conscious grappling with the charges made against them” and “offends not only a basic tenet of legal process, but also a basic tenet of liberal democracy — that officials must give public reasons for their actions in order for those actions to be legitimate.” Such a failure also makes it far more difficult for those reviewing a specific disqualification decision to understand the underlying rationale or facts, and denies other judges, justices, and courts both precedent for use in other cases and the chance to build on this precedent in developing a more refined body of disqualification jurisprudence. Finally, in a state in which judges or justices are subject to election or re-election, a failure to explain disqualification decisions deprives the public of valuable information concerning how those judges or justices address challenges to a central component of their judicial fitness: their impartiality.
If a challenged justice is permitted to decide his or her own disqualification motions, there should be a mechanism to review such decisions de novo and in a timely manner.
Permitting a judge whose objectivity is challenged to decide his or her own disqualification motions may undermine public confidence in the impartiality and legitimacy of the judicial process. On the other hand, a challenged judge may possess the best knowledge of the facts at issue.
In light of these tensions, several other states require that motions for disqualification be independently adjudicated. One of these states is Michigan. The Michigan Supreme Court voted in November 2009 to authorize the entire Michigan Supreme Court to review decisions on individual justices on whether there is an unacceptable ethical conflict. We believe that such an approach enhances procedural integrity and fosters increased public trust in the judicial system.
To carry out their role effectively and to maintain public confidence, the courts of our constitutional democracy must keep the promise of dispensing fair and impartial justice, and decide controversies without bias. This means that courts must work to maintain both the perception and the reality of independent, impartial justice. The articulation of clear, enforceable rules governing judicial disqualification is an important means for doing just that.
We commend the Court for its attention to these issues, and appreciate the opportunity for public comment on the alternative proposals under consideration.
J. Adam Skaggs Bert Brandenburg
Counsel Executive Director
Brennan Center for Justice Justice at Stake Campaign
161 Avenue of the Americas 717 D Street, NW Suite 203
New York, New York 10013 Washington, DC 20004
(212) 992–8976 (202) 588–9700
 The Brennan Center is a non-partisan public policy and law institute that focuses on fundamental issues of democracy and justice. Through the Brennan Center’s Fair Courts Project it works to preserve fair and impartial courts and their role as the ultimate guarantor of equal justice in the country’s constitutional democracy. Its research, public education, and advocacy in this area focuses on improving selection systems (including elections), increasing diversity on the bench, promoting measures of accountability that are appropriate for judges, and keeping courts in balance with other governmental branches.
 Justice at Stake is a nationwide, nonpartisan partnership of more than 50 judicial, legal, and citizen organizations. Its mission is to educate the public and work for reforms to keep politics and special interests out of the courtroom — so judges can do their job protecting the Constitution, individual rights, and the rule of law. The arguments expressed in this letter do not necessarily represent the opinion of every Justice at Stake partner or board member.
 129 S. Ct. 2252 (2009).
 Justice at Stake Campaign, Press Release, Poll: Huge Majority Wants Firewall Between
Judges, Election Backers (Feb. 22, 2009), available at http://www.justiceatstake.org/node/125.
 Supra Note 8.
 A non-profit organization formed under Section 527 of the Internal Revenue Code that is engaged in political advertising.
 Supra Note 8.
 Setting Recusal Standards at 32 (footnote omitted).