Gavel Grab

It would be “the honorable path” for North Carolina Justice Paul Newby to recuse himself from a contentious redistricting case and escape an “ethical bind,” a (Raleigh) News & Observer editorial suggested.

In favoring recusal by the recently re-elected judge, the editorial touched on broad issues that can affect elected judges everywhere if they win election after heavy spending by supportive special interests, then are asked to rule on disputes in which the interests have a vested stake.

The editorial addressed a recent filing by plaintiffs challenging new legislative and congressional district lines, drawn by a Republican-dominated legislature. They submitted a motion for Justice Newby to step aside from hearing the litigation (see Gavel Grab).

When he triumphed over a challenger on Election Day, Justice Newby had benefited from the support of $2.5 million in outside spending. Among outside groups supporting him were those “looking out for Republican Party interests,” the editorial said, including a national group called the Republican State Leadership Committee.

The plaintiffs, the editorial said, believe it wouldn’t pass the “ethics smell test” for Justice Newby to participate in the case, and the editorial board appeared to agree: Read more

Groups including the North Carolina NAACP, the League of Women Voters of North Carolina and Democracy North Carolina have asked North Carolina Supreme Court Justice Paul Newby to step aside from participating in a legislative and congressional redistricting case.

The groups are plaintiffs in the redistricting case, and they submitted a motion contending that financial support from persons and groups having a direct stake in the case ”had a significant and disproportionate influence in Justice Newby’s victory” on Election Day, according to a (Raleigh) News & Observer article.

“If justice and fairness are to prevail, the integrity of the court’s justices and the proceedings cannot be influenced by money or even have the appearance of being sold to the highest bidder,” state NAACP President Rev. William Barber said, according to a Charlotte Post report.

Recent media reports have put at $2.3 million the outside support that Justice Newby benefited from in his election win over Judge Sam Ervin IV; super PACs were instrumental in the heavy spending. Read more

Citing an explosion of big spending on judicial elections as documented by Justice at Stake, the Center for American Progress has issued a policy paper entitled, “Strong Recusal Rules Are Crucial to Judicial Integrity.”

The paper examines judicial election campaign spending trends and the impact on public confidence in fair and impartial courts when judges weigh cases where a litigant or lawyer has contributed to a judge’s campaign.

“Judges sometimes recuse themselves from cases involving litigants or lawyers who have given money to their campaigns, but all too often judges refuse to abstain in the face of glaring conflicts of interest. This has caused the public to doubt the impartiality of judges. According to several recent polls, more than three quarters of respondents believe that campaign cash influences Read more

The California Supreme Court has adopted a new ethics rule, to take effect Jan. 1, requiring disqualification of a judge if he or she has received a campaign contribution of $5,000 or more in support of a campaign during the last six years, or in support of an upcoming campaign, from a lawyer or party involved in a case.

The revision to the Code of Judicial Ethics was one of a number announced by the court in a press release last week. “The revisions improve the code significantly and provide additional guidance for judges regarding conduct both on and off the bench,” said Chief Justice Justice Tani Cantil-Sakauye, praising a report by the court’s Advisory Committee on the Code of Judicial Ethics.

The court also adopted these other updates to the Code of Judicial Ethics:

• Requiring a judge to disclose campaign contributions of $100 or more from a party, lawyer or law office involved in a case. Read more

The New York City Bar Association has recommended that U.S. Supreme Court justices should explain their reasoning when they step aside from a case or reject a request to do so.

A report written by the bar’s ethics committee made the recommendations, according to a Reuters article. At least in part, the report appears to mirror a statement by Justice at Stake last year.

JAS said then that Supreme Court Justices Clarence Thomas and Elena Kagan should strongly consider giving a public explanation of their reasons for not recusing from the federal health care case that was before the court.

Last month, the New York City bar’s ethics committee wrote regarding its recommendations, “Opening the Court’s ‘black box’ in this limited respect will help the parties and the public to have confidence that the judicial oath to hear cases ‘faithfully and impartially’ is honored in practice by the highest court in the land.”

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Every so often, a legal analyst deems a legal paragraph to be striking in importance or beauty. Alison Frankel  devotes a Reuters commentary to one such paragraph that she finds “stunning” and worthy of spotlighting.

The paragraph is about recusal, and life experience. It came in a recent order written by Ninth U.S. Circuit Court of Appeals Judges Marsha Berzon (photo at left of two) and Richard Tallman (photo at right of two). A criminal defendant sought recusal of fellow Judge Susan Graber from considering the defendant’s petition for rehearing of a habeas petition. The defendant’s lawyer asserted there were parallels between the carjacking and murder of Judge Graber’s father 40 years ago, and the defendant’s criminal case.

Judge Graber declined to step aside. Judges Berzon and Tallman wrote that had they participated in the recusal decision, they would have voted to deny it, and they called the recusal motion “beyond the limits of appropriate representation.” Here is their paragraph excerpted by writer Frankel:

“All of us as judges have had life experiences that could be said to affect our perception of the cases that come before us. Some of us have served as prosecutors and others have not; some have experienced discrimination as women or minorities and others have not; some are intensely religious and others are not, and our religions vary; some have children and other relatives with disabilities and illnesses, Read more

A special panel of the Illinois State Bar Association is working to draft recommendations for new guidelines about disqualification of judges in an era of increased judicial election spending.

John Thies, the state Bar president, said he established the committee in part because of the Supreme Court’s landmark 2009 ruling in a judicial recusal case, Caperton v. Massey, and in part out of concern over public perceptions when judges hear cases involving parties who contributed to their campaigns. He was interviewed by the Madison County (Illinois) Record.

Caperton highlighted conflict of interest concerns raised by spending to influence court elections in West Virginia. The Supreme Court found that there was a risk of bias when a West Virginia  justice voted on a case involving a coal company whose chief executive had spent millions to help the justice win election. Caperton moved the issue of judicial recusal to the national stage.

Regarding public perception, Thies said greater public confidence in the integrity of the judiciary would be inspired by having disqualification standards that clarify when a judge should recuse.

The article recaps episodes in Illinois that have spotlighted a need for new recusal rules. They include a judge’s acceptance of $30,000 in campaign contributions from law firms representing plaintiffs in asbestos-exposure litigation. The judge was reassigned from hearing all asbestos cases after her campaign had received the law firms’ donations (see Gavel Grab).

Whitney Woodward of the Illinois Campaign for Political Reform, a JAS partner group, said creating recusal standards would offer the best route “to improve the public’s confidence in our courts.”

Three former judges who were named by Tennessee Gov. Bill Haslam to a special state Supreme Court — after all five sitting Supreme Court justices had recused themselves — have  stepped aside from hearing a challenge to the state’s judicial selection system.

“Although the undersigned special judges have not formed an opinion about the constitutionality of the contested language of the Tennessee Constitution governing the election of appellate judges, they find that it is of utmost importance to protect the integrity of this court and to avoid allegations challenging the independence, partiality or fairness in its decision making process, and opinions,” the three wrote in a recusal order, according to a Knoxville News Sentinel article.

The special court is to consider John Jay Hooker’s legal challenge to Tennessee’s merit system of choosing top judges (see Gavel Grab).  Hooker, a serial litigant and frequent political candidate who brought the legal challenge, earlier asked Haslam to disqualify the three former judges.

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At a West Virginia Supreme Court candidates’ forum before a pro-business audience, there was debate over the best way to protect fair and impartial courts through judicial recusal.

Four candidates for two seats on the court appeared at the event on Wednesday before the West Virginia Chamber of Commerce’s Annual Meeting and Business Summit, according to a West Virginia Record article.

Democrat Tish Chafin, a former State Bar president, has proposed changing the rules that apply to preventing justices from considering cases that could involve a conflict of interest. She proposes that a justice who declines to step aside in such a case could be taken off the case by action of the other four justices and a specially appointed judge (see Gavel Grab).

Currently, a justice can recuse voluntarily from hearing a case or elect to step aside if a party to the case requests it.

Conflict of interest concerns raised by spending to influence West Virginia court elections were highlighted by the U.S. Supreme Court in a 2009 decision, Caperton v. Massey. It was because of the backlash from that case that she has proposed the change, Chafin said.

“We need to step up and change the rules,” she said. “One case can erode confidence in the judiciary. It’s about ‘perceived bias’ and improving public perception of the Court.” Read more

John Jay Hooker (photo), a serial litigant and frequent political candidate, has asked Tennessee Gov. Bill Haslam to disqualify three former judges whom Haslam appointed to sit on a special state Supreme Court. The special court is to consider Hooker’s legal challenge to Tennessee’s merit system of choosing top judges (see Gavel Grab).

As former judges, “their impartiality might reasonably be questioned,” Hooker contended, according to a (Nashville) Tennessean article. The special court was named after all five Tennessee Supreme Court justices had recused themselves from hearing an appeal brought by Hooker. He sought their recusal.

A subsequent Tennesseean editorial was entitled, “Start to untangle judicial selection process,” and it recapped legislative and legal skirmishing over merit selection in Tennessee. In this context, the editorial noted that voters, when they last were asked to weigh in, decided in 1977 “to keep their constitutional right to elect judges. There is no reason to think that voters in 2014 will see things differently.”

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