Posted Mar 01, 2012 11:00 am CST
U.S. Supreme Court Justice Anthony M. Kennedy placed great faith in the appearance of impropriety in June 2009 when the court tried to determine how much spending on judicial campaigns is enough to affect a judge’s impartiality and cause the judge’s removal from a case.
The facts in Caperton v. Massey made the decision relatively easy. West Virginia coal magnate Don Blankenship had spent some $3 million in 2004 to help elect a state supreme court justice when Blankenship’s A.T. Massey Coal Co. had a case coming before the court. The Blankenship bankroll totaled more than the amounts raised by the two candidates combined and their supporters. Blankenship’s man won and joined in the vote to reverse a $50 million judgment against Massey.
Money may not buy love, but the $3 million bought Blankenship justice, at least until the U.S. Supreme Court took up the matter. The circumstances and the amount alone were enough to create a risk of bias, Kennedy wrote, so due process required newly elected Justice Brent Benjamin to recuse himself from the coal company’s case. “The facts now before us,” Kennedy wrote, “are extreme by any measure.”
Nearly three years later, however, fewer than a dozen states have rewritten their recusal rules to account for more common instances of political spending that may not rise to the level of the hard constitutional foul called in Caperton, but that nevertheless create potential conflicts of interest for judges significant enough to warrant disqualification.
In the meantime, another campaign finance shoe dropped in the high court just six months after Caperton. In January 2010, the suggestion of an improper motive meant nothing when Kennedy authored for a different majority the lead opinion in Citizens United v. Federal Election Commission.
There, the court held the First Amendment allows corporations and unions to spend as much as they want to support or defeat candidates. Congress in the 2002 McCain-Feingold Act had limited corporate expenditures as a way to fight corruption or its probability.
Those days are gone, Kennedy wrote: “We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”
The court’s contradictory positions in the two decisions effectively leave the rule-makers in a delicate position. On one hand, lower courts read Caperton as a command to impose new rules on themselves to ward off the perceived evil of campaign cash.
On the other, they must do it in a post-Citizens United world that erases most of the rules governing corporate spenders. Talk about getting whipsawed.
Moreover, Citizens United addresses independent spending separate from campaigns, such as ads supporting or condemning a particular office seeker. Candidates have no control over that. So, under widely varying state disclosure rules, a judge targeted by a recusal motion initially may not even know the source of the questioned support or opposition.
At the same time, courts and lawyers both could shoulder added responsibility to keep track of campaign money if they choose to follow proposed revisions to the ABA Model Code of Judicial Conduct and to the ABA Model Rules of Professional Conduct, which applies to lawyers. Draft rules released in December were scheduled for a public hearing Feb. 3 at the association’s midyear meeting in New Orleans. The House of Delegates is expected to vote on them in August, when the annual meeting convenes in Chicago.
The proposed amendment to the Model Code tosses judges into the trick bag with “a rebuttable presumption that the judge knows the amount, source and value” of both direct and indirect contributions and support to the extent the records are public. The provision covers not only parties and their lawyers but also organizations they support that, in turn, fuel the judge’s campaign. Support also must be “substantially important,” considering the judge’s need among other circumstances. The parties also can waive conflicts without the judge’s participation.
A related proposed addition to the Model Rules would make law firms record and report their campaign spending, or give a lawyer appearing before an elected judge the alternative to tell the court about support the lawyer or firm gave the judge in the most recent campaign.
It remains to be seen whether the requirements will affect contributions made under the Citizens United banner or at least provide unwary judges with sufficient escape valves until some state adopts the model, then gets hauled into court.
“We’re going to have to figure that out case by case,” says Chief Justice Wallace B. Jefferson of the Texas Supreme Court. A former president of the Conference of Chief Justices, Jefferson was instrumental in marshaling the organization’s support in 2011 for an ABA resolution that authorized revision of the judicial conduct code. One early test could emerge from Montana, where the state supreme court blasted Citizens United in December and restored a 100-year-old ban on corporate spending.
“It’s going to be hard to apply,” echoes Peter Bennett, chair of the ABA Standing Committee on Judicial Independence, which has been working on the issue for four years. “Even when you know where the money is coming from, it’s hard to link it to a judicial election.”
Now it’s up to Bennett to sell the ABA’s plan to install clear procedures and provide prompt resolutions of recusal attempts. He realizes many jurists already are cautious.
“In essence, what we intend to do is look at some pilot states to take the lead,” says Bennett, a lawyer in Portland, Maine. “We’ve picked a cross section of states to begin with. I know there’s going to be pushback.”
Both Caperton and Citizens United, of course, can affect any judicial election, whether it’s contested between op posing candidates or features appointed incumbents running alone on retention ballots, where voters decide whether they should remain on the bench.
Conflicts also can arise in a wide range of areas outside election support, such as in family, personal and professional ties between the judge, witnesses, the parties and their lawyers. Under the ABA Model Judicial Code, most states and the analogous federal statute cast wide nets, requiring judges to withdraw from “any proceeding in which the judge’s impartiality might reasonably be questioned.”
That’s light-years beyond recusal’s beginnings more than 500 years ago in English common law. Sir Edward Coke later distilled recusal—called judicial disqualification in some courts—with his 17th century pronouncement that “no man shall be a judge in his own case.” A disfavored practice from the beginning, recusal was at first only available to disqualify a judge with a financial stake in the outcome.
By the early 21st century, however, grounds for recusal had greatly expanded to cover just about any circumstance where a judge’s conduct may raise eyebrows. Besides a judge’s relationships with litigants, other examples include personal bias; out-of-court statements by judicial candidates that may commit them to positions in specific cases; instances where the judge once presided over the controversy, worked as a lawyer on it or was a material witness; and previous service or public comments as an involved government lawyer or public official.
Beyond campaign finance, questions of process and procedure still swirl. Who, for example, replaces a disqualified judge on an appeals court or some other smaller tribunal that may not have enough judges in the first place to carry its regular workload? A senior judge?
At the trial level, does prompt consideration of a litigant’s case invoke the “duty to sit” or “rule of necessity” doctrine to trump the judge’s potential conflicts and force the jurist to hear the matter lest litigants miss their day in court? The comment to the existing ABA rule says they may, at least in some narrow cases.
“At any given time, I’m the only judge available in the courthouse,” says Iowa District Judge Annette J. Scieszinski, one of six jurists who cover a 10-county territory in the rural southeast corner of the Hawkeye State.
Should a challenged judge have the last word on a recusal motion or hand it off to another jurist? The ABA resolution authorizing the rules revisions also encourages a second court to review a denied motion. When should a judge be required to issue a written opinion on a recusal motion? When it’s granted? Or only when it’s denied, to give appeals courts guidance? The report accompanying the ABA resolution urges states to require written opinions to support denied motions and guide appellate review.
The standing committee saw no way, however, that it could include a recommendation for a judge to issue a written opinion when the court grants a recusal motion. Judges say granting the motion early on, then quitting the case, ensures that none of the parties is harmed. No harm—no foul, they say.
And that doesn’t include legions of motions from pro se litigants and prisoners, nearly all of which are dismissed as pointless.
“No judge wants to spend his time writing on a motion that’s frivolous,” says Chief Justice Jefferson. Standing committee members quickly backed off.
“We talked about that,” Bennett says. “But if we had included it, I don’t think it would have passed the House of Delegates.”
Today campaign money is the unquestioned driver. Fundraising for state supreme court elections more than doubled from $83.3 million in 1990-1999 to $206.9 million during the period 2000-2009, according to the Brennan Center for Justice in New York City. The figure stood at $38.4 million for 2009-2010. Also participating in the survey were the Washington, D.C.-based Justice at Stake Campaign and the National Institute on Money in State Politics, a campaign finance clearinghouse in Helena, Mont.
The threat of uncontrollable campaign spending is rapidly becoming a promise. For openers, Iowa Supreme Court justices stand for retention every eight years. None ever has raised or spent one red cent for his or her campaign, including during 2010 with three up for retention in the wake of a decision legalizing same-sex marriage. Independent spending by opponents—much of which came from outside Iowa—reached $990,851, while supporters spent $423,767. All three justices lost.
A similar story unfolded in the 2010 Michigan Supreme Court election, in which four candidates sought two seats. Political parties and independent groups spent from $6.8 million to $8.8 million, with the exact figure hidden from the public due to Michigan’s antiquated disclosure laws. But even at the low end, outside spending still easily eclipsed the $2.3 million spent by all four candidates.
And in April 2011, outside groups poured $4.5 million into the campaigns of two opposing Wisconsin Supreme Court candidates, accounting for 80 percent of the spending in the race. Nationally, though overall spending dropped slightly at the end of the decade, experts predict it’s just a matter of time before more folks join the Citizens United bash for the November presidential election. After all, the decision had less than a year to soak in before it saw its first election.
Of special concern is an emerging small group of “super spenders” that are drowning out small contributors. In 29 of the last decade’s most expensive elections, the top five spenders shelled out $473,000 on average for each one to seat their chosen judicial candidates, while other donors averaged only $850, according to the Brennan Center.
“The real effect of Citizens United will be felt this year,” says Adam Skaggs, Brennan Center senior counsel. “But what is significant about Citizens United is the spending by outside groups. It’s higher than it’s ever been. And it’s a small number of groups that account for most of the spending.”
What may be considered excessive and illegal spending can differ on a number of points, which the ABA is trying to resolve in its judicial code rewrite. Factors to be considered include contributions by some supporters that are considerably larger than others; law firm support that accounts for all of a candidate’s contributions; the source of the contribution, such as a prominent constituent; and the timing of the support in relation to the election. Still, the mere receipt of support in itself won’t demand disqualification.
Rules enacted in Georgia and Tennessee have drawn praise for their flexible approaches that consider the totality of circumstances. Less favored are systems that automatically disqualify judges when single contributions reach a specific amount. Critics say they just don’t have the leeway to account for the increasing assortment of financing schemes. Artificially low limits may encourage lawyers to forum-shop merely by making contributions over the threshold amount to judges they’d rather not face. The existing ABA model also only limits contributions to a judge’s campaign, and not independent expenditures of the sort that arose in Caperton and again in Citizens United.
“One of the issues was whether it should be a bright-line test, or a ‘stick-your-finger-in-the-air’ kind of test,” says Georgia Supreme Court Justice Harold D. Melton.
The current ABA code has contained a per se threshold since 1999, though December’s broader proposal and accompanying list of considerations would replace it. Only two states had adopted the ABA model before Caperton. Utah’s rule, approved in April 2010, requires recusal if parties or their lawyers have given more than $50 over the previous three years. Arizona’s 2009 rule limits contributions under state campaign finance law, currently pegged at $840.
New York, however, set its own automatic recusal amount last July at $3,500; but the state lets administrators invoke it, so cases never reach judges and entangle them in what can sometimes be messy recusal proceedings. Also last year, California enacted a $1,500 limit.
No one compiles comprehensive statistics on just how many disqualification motions courts entertain each year. Indeed, many are handled off the record, and judges and litigators surmise that 90 percent or more are rejected as baseless. Many of those come late in the game, often long after the case has concluded, from pro se litigants and prisoners unhappy with their outcomes—rather than with whether judges gave them a fair shake, which is all a recusal motion aims to achieve.
Though frivolous motions have plenty of nuisance value, a far more serious threat has more than a few judges sleeping with one eye open. Legislators in some states now want to wrest greater control over their courts by tinkering with their own recusal rules—an area that didn’t interest them so much before Caperton and Citizens United.
As the Tennessee Supreme Court approved the state’s revisions to recusal rules in January, it did so under threats by lawmakers to do the job right before they stepped in. The courts say such antics threaten the separation of powers doctrine and the judicial independence it provides. Legislators view them as a way of ensuring accountability from a renegade branch of government.
The Tennessee courts and legislators didn’t exactly achieve peace and harmony in 2011, with bills enacted that cap jury awards and instruct the courts on how to interpret their own procedural rules. And as the state high court considered revising its disqualification regime, legislators standing on the outside also threatened to dismantle the internal judicial disciplinary system. They say the system improperly uses secrecy to resolve ethical complaints, often against judges who refuse to recuse themselves. Moreover, the lawmakers began talking late last year about dumping Tennessee’s merit selection system for some appeals courts.
“There are some tea party types who think that everybody ought to be elected,” says Chattanooga lawyer T. Maxfield Bahner, who chaired a Tennessee Bar Association task force that presented the recusal proposal to the state supreme court.
As majority whip for the Georgia House, Republican state Rep. Edward H. Lindsey was in a position to have his way with the state courts. Even before Caperton was decided, Lindsey had filed a bill that would have required recusal for single contributions exceeding the limits in Georgia’s campaign finance statute that applies to all state candidates—set for judges in 2012 at $8,000 for seats on the appeals and supreme courts and $3,000 for the lower courts.
“My bill was intended to be a placeholder until Caperton came out,” Lindsey says.
Lindsey also is a litigator with more than 20 years of experience, and he figures he’s one of just a handful of practicing lawyers in the 236-member Georgia General Assembly who regularly walk into a courtroom. So Lindsey didn’t hesitate when supreme court Chief Justice Carol W. Hunstein called.
She wanted to meet with Lindsey about letting the court have the first shot at any rules changes before Lindsey pulled the trigger on his bill.
“We had no doubt that we could work with him constructively,” says Georgia Justice Melton. “We’re done. The legislature was very happy with the process.”
After Lindsey agreed to let the court go first, he also wound up with a seat on a committee of judges and court and bar officials that drew up Georgia’s amendments, adopted in 2010.
“I think it’s better for all concerned for the judiciary to craft its own rules on recusal so it’s fair and predictable,” says Texas Justice Jefferson. “Therefore, you don’t have rules that are born out of a particular constituent’s dissatisfaction with a case.”
Like other rewrites, the new Georgia rule eschews the hard-and-fast dollar limits in Lindsey’s legislation in favor of pliable factors, such as those listed by the ABA. It was good enough for Lindsey to pull his bill to prevent legislative hands from monkeying around further.
“Quite frankly, in areas dealing with the operation of the courts, it should be up to the courts themselves, and the legislature should be the last resort,” Lindsey says. “Having the justices sit there and work it out among themselves is preferable, since they have to implement it.”
Still, judges themselves may be the worst enemies of comprehensive revision. The ABA standing committee got a whiff of that in February 2011, when—to mollify some judges’ concerns—it postponed until August consideration of the resolution authorizing association ethics specialists to draft specific rules.
It boiled down to two competing schools of thought: Judges who say the system isn’t broken and doesn’t need to be fixed, and others who worry about the public impression created by Caperton that the courts are for sale.
The idea of recusal was once so disfavored that 18th century English jurist William Blackstone viewed disqualification for personal bias as an unimaginable sign of weakness in a judge, whose authority depended on the ability to fairly mete out justice. Court efficiency is no small concern either, especially when some folks file disqualification motions just to gum up the works.
That’s a recipe for havoc, says Iowa Judge Scieszinski, an ABA Judicial Division representative assigned to iron out differences with the standing committee.
Experts maintain that modern codes wiped out the duty to sit by giving litigants the ability, which they lacked in Blackstone’s day, to question a judge’s impartiality. Yet as the law has become more complex, the duty to sit and related rule of necessity linger today in some chambers when judges mull recusal.
The rule of necessity remains in the ABA proposed rules and can eclipse potential conflicts in the classic case of judicial salary disputes, where no judge is conflict-free. The ABA comment also covers proceedings that may require immediate action, such as probable cause hearings and temporary restraining orders. But it also forces the judge to disclose the potential conflict’s source and attempt to transfer the matter to a colleague.
Judges also fret that recusal proceedings can reveal embarrassing personal information, such as a sexual relationship with a party. Supporters of comprehensive revision say that’s nonsense because recusal motions themselves usually reveal similar information.
Moreover, judges worried that opportunists could attempt to publicly attack them by seizing on wording in the nonbinding resolution and passing it off as ABA policy. Neither the resolution calling for the new rules nor the draft regulations themselves carry any legal weight.
“We had several judges around the country who feared that ABA language can be excised and used as a sword,” Scieszinski says. “Many of the constituents in our Judicial Division thought it was a deal-breaker.”
Jurists interviewed for this story, however, had difficulty citing specific instances where misuse may arise. Nevertheless, they wanted the report’s language toned down. Many judges, perhaps unaware of their own biases and conflicts, also view recusal motions personally as attacks on their integrity.
“All judges, at least 99.9 percent, believe their integrity is their most important thing,” Scieszinski says. “Judges are public officials. It’s not just that they attack your integrity. It’s on the front page.”
While ABA ethical rules are simply suggestions, they also serve as templates that most individual states apply to their own systems. And though they have no legal power, courts regularly cite them as persuasive authority.
Though the resolution still may have passed in February 2011, standing committee members figured they needed to get the Judicial Division all the way into the boat before issuing a long-awaited public statement that is sure to be highly publicized.
“The ABA is a hugely influential deliberative body,” says standing committee member Alan T. Dimond, a Miami lawyer who spoke for the panel in discussions with the judges.
After the sides talked, the proposal was ready to go by mid-July with subtle language changes most didn’t notice, except perhaps for one prominently placed disclaimer reiterating the ABA’s advisory role: “References to the Model Code of Judicial Conduct contained in this report are not intended to suggest amendments to the code.”
The House passed the resolution in August by voice vote at the annual meeting in Toronto. No one rose to speak for or against it.
“Having no one oppose it was a bit of a surprise,” Dimond says. “It was a process of jawboning.”