Gavel Grab

Wisconsin Supreme Court justices discussed changes to the state’s judicial ethics code on Friday, but couldn’t seem to decide on alterations to recusal rules, reports the Legal Newsline.

The justices held an Open Rules Conference on Friday to discuss Chief Justice Shirley Abrahamson’s proposed revisions. According to the article, Abrahamson would like to see the court follow provisions from  a code of conduct created by the American Bar Association.

Newly reelected Justice Pat Roggensack argued that the court should not be revising the code in an open meeting forum.

Justice David Prosser said he was worried that attorneys and special interest groups would abuse the new recusal rules, and use them to push certain justices off a case.

Both Abrahamson and Justice Ann Walsh Bradley are in support of making the changes in the open, the article says.

Wisconsin Public Radio has produced an explanatory piece about  judicial recusal and how the court’s rules have become a campaign issue in the Wisconsin Supreme Court race.

In 2009, the Wisconsin Supreme Court weakened its recusal policy significantly, saying that campaign expenditures could not be a cause for an elected judge to recuse.

Challenger Ed Fallone, a Marquette University law professor, has called for changing the rule.

“I think that when someone leaves the courthouse, and they have perhaps lost their case, they need to feel that they were treated fairly,” he said at a recent debate. “When they discover that that judge had received substantial campaign contributions from someone on the other side of the aisle — either the party or their lawyer — they’re going to doubt whether they were treated fairly.”

Incumbent Justice Patience Roggensack, defending the rule, said it should not be assumed that a judge will be influenced by campaign cash. Read more

Negative TV advertising has begun in the Wisconsin Supreme Court election, two weeks before voters go to the polls on April 2.

Challenger Ed Fallone aired an advertising attack against incumbent Justice Patience Roggensack that both highlighted what he calls the court’s “dysfunction” and slammed the incumbent. The incumbent’s camp, in turn, called the ad “more than disappointing” and factually wrong, according to a Milwaukee Journal Sentinel article.

“Pat Roggensack refused to hold David Prosser accountable for choking another justice,” says a narrator in the ad, referring to an incident in which fellow Justice Prosser placed a colleague in a chokehold. Justice Roggensack recused from participating in hearing ethics charges that were filed against Justice Prosser on grounds she had witnessed the incident.

“It’s more than disappointing Professor Fallone continues his negative campaign attacking Justice Roggensack and the Wisconsin Supreme Court,” said Justice Roggensack’s campaign consultant Brandon Scholz. Read more

A candidate for the Wisconsin Supreme Court is working to make judicial recusal an issue, contending a justice ought to step aside from hearing cases that involve a party who has contributed campaign cash to the justice.

“We should always be concerned that the courts are not perceived as being for sale,” says Marquette law professor Ed Fallone, who is challenging incumbent Justice Patience Roggensack. An Associated Press article about a joint appearance by the pair discussed the recusal issue.

The incumbent ”bears a large part of the responsibility for pushing through” a revision to court rules, Fallone says. In 2009, the Wisconsin Supreme Court weakened its recusal policy significantly, saying that campaign expenditures could not be a cause for an elected judge to recuse.

Justice Roggensack has not veered from defending the rule. She told a legislative panel that “money spent to communicate during an election has long been held to be an element of speech, and therefore such expenditures are protected by the First Amendment.” Her views were reported in a Daily Page article by Bill Lueders of the Wisconsin Center for Investigative Journalism. Read more

Responding to calls for Congress to more tightly regulate recusal practices by Supreme Court justices, Lou Virelli,  an associate professor of law at Stetson University College of Law, takes a different tack.

In a SCOTUSblog essay summing up some of his recent law review articles, Virelli argues that it is unconstitutional for Congress to regulate recusal practices of the nation’s highest court. Virelli sees a conflict between the Congress and the court in this area, and he goes further to explore ways to resolve the conflict.

He concludes it the responsibility of Congress ”to resolve the impasse through the only mechanism capable of achieving such a resolution – targeted repeal of the [existing federal] recusal statute.” At the same time, Congress has indirect ways to check the recusal powers of the court, he writes.

Read more

After a Florida Circuit Court judge was required to recuse himself from a case in which he was Facebook friends with the prosecutor, the state Supreme Court will decide whether he should have removed himself or not.

Judge Andrew Siegel refused a request by the defendant to recuse himself, but a decision from a three-judge panel overruled him, says the Associated Press.

According to the article, the judges invoked a 2009 opinion from the Judicial Ethics Advisory Committee of Florida that judges may not “friend” lawyers on social networking sites if they come before them in court.

Judges “do not have the unfettered social freedom of teenagers,” wrote District Judge Robert Gross.

The Illinois State Bar Association has proposed a new judicial disqualification rule, which next will be considered by the state Supreme Court. Justice at Stake and the Brennan Center for Justice said in a letter the proposal falls short and “would be a step backward, not forward.”

According to a Madison County (Ill.) Record article, the proposed rule would require a judge to step aside from a case if there was a probability of bias after consideration of relevant circumstances, to include campaign donations.

“I think it’s important for all of us in the profession to look for ways we can address the perception of the public that politics plays way too big of a role in the way we select our judges,” ISBA President John Thies said.

Justice at Stake and the Brennan Center, a JAS partner group, wrote a letter Dec. 14 to Thies expressing concerns that the proposal “would erect a threshold for recusal that is both higher than what exists under existing ethics rules and undesirable as a matter of policy.” Read more

On Monday, the North Carolina Supreme Court rejected a request that Justice Paul Newby recuse himself from a redistricting case that will come before the court.

State Democrats, the local NAACP chapter, and other groups had requested that Newby not participate in the case due to the possibility of bias, reports the North Carolina News Observer.

Rev. William Barber, president of the North Carolina NAACP chapter, expressed disappointment in the decision, but remains confident that they will win the case in the long run.

“We believe we have a strong case against the current redistricting plans,” Barber said. “If it’s heard fairly, based on the law and not on any other outside influence, we believe we will be successful on the merits.” Read more

In a nationally watched case involving government austerity steps and public employee pension cuts, a Rhode Island judge is in the spotlight over questions about her own interest.

A New York Times article sums up issues facing Judge Sarah Taft-Carter of the state Superior Court this way:

“Can a judge rule impartially on pension cuts when her mother, her son, her uncle and even she herself all have a stake in preserving the status quo?”

It’s a case that will likely get a good deal more attention. High-profile attorney David Boies is representing Rhode Island against litigation by several public employee unions over pension cuts. States and cities hard-hit by fiscal strains are watching the case. Boies is seeking “a less conflicted judge,” according to the article. Read more

Members of the North Carolina legislature are responding to the charge levied by the state chapter of the NAACP and several other groups that North Carolina Supreme Court Justice Paul Newby should not be allowed to stay on the lawsuit challenging political districts of favoring Republican politicians, reports the Associated Press.

Lawyers for GOP state House Speaker Tom Tillis, Senate leader Phil Berger and others looking to keep Newby on the case argue that the money given the Newby’s campaign by Republican committees and political action committees shouldn’t cast doubt on Newby’s fairness.

Thomas Farr and Phillip Strach, attorneys working with Attorney General Roy Cooper’s office to defend the districts, argue that the recusal standards urged by those calling for Newby’s removal are “unworkable.” If implemented, they would require “each member of the court to research whether every party or attorney who appears before them had ever expended money on his or her behalf during a previous campaign or contributed money to an independent expenditure committee that did.”

In the November election, Republican affiliated groups and super PACs spent $2.3 million on television ads supporting Newby and attacking his opponent, Appeals Court Judge Sam J. Ervin IV (see Gavel Grab).

According to the Associated Press, around $1.2 million of that came from the Washington-based Republican State Leadership Committee, which gave “direct technical assistance to the North Carolina Republicans who drafted the legislative maps at issue.”

For more on the recusal issue, see Gavel Grab.