Gavel Grab

A standing committee of the American Bar Association, citing an “urgent need” for effective judicial disqualification procedures in state courts, has proposed new guidelines for consideration by its House of Delegates next month.

A resolution drafted by the ABA’s Standing Committee on Judicial Independence urges all 50 states to “establish clearly articulated procedures for judicial qualification determinations and prompt review by another judge or tribunal, or as otherwise provided by law or rule of court, of denials of requests to disqualify a judge.”

William K. Weisenberg, chair of the Standing Committee, said the resolution has “an underlying principle,” or “essentially a core value, … that no one should be a judge in his or her own case and that public trust and confidence in a fair, impartial and independent judiciary is enhanced in recognition of this principle.”

The resolution comes at a time of soaring special interest spending in judicial elections and takes into account recent Supreme Court rulings in Caperton v. Massey and Citizens United v. Federal Election Commission. An accompanying Standing Committee report explains:

“The mere possibility that a vast influx of additional campaign money might enter the [judicial elections] arena, which already in the past decade has been saturated with unprecedented campaign support, virulent attack ads, and concomitant diminution in public respect for State judiciaries, makes tighter controls over disqualification imperative. Thus there is an urgent need for States to have in place prompt, effective, and transparent disqualification procedures.”

In the 39 states where judges face some form of election, the resolution further urges adoption of requirements that all litigants and lawyers disclose campaign support for a judge before whom they are appearing. It urges adoption of guidelines for judges “concerning disclosure and disqualification obligations regarding campaign contributions.”

The resolution stops short of recommending changes to the ABA’s Model Code of Judicial Conduct. It calls on two other ABA Standing Committees — at their request — to “proceed on an expedited basis to consider what amendments, if any,” should be made to the model judicial code or ABA Model Rules of Professional Conduct. The Standing Committee on Judicial Independence report also emphasizes that there aren’t necessarily any “one size fits all” rules regarding judicial disqualification.

If there were wide acceptance of a core principle that no jurist should  judge in his or her own disqualification motion, it would represent an enormous shift from current practice in most states. Moreover, the proposed guidelines to curb the influence of judicial campaign cash in the courtroom suggest a more substantive response to Caperton than most states have undertaken in the two years since it was issued.

The Supreme Court ruled in Caperton that a West Virginia justice could not hear a case involving a coal company whose chief executive had spent $3 million toward the judge’s election. Caperton gave states a green light for rigorous ethics standards, so that judges step aside from cases involving major campaign supporters.

But since the June 8, 2009 ruling, only nine states have adopted promising new disqualification rules, and the majority of state courts have failed to adopt any reforms, Justice at Stake and the Brennan Center for Justice said in a recent report.

The ABA Standing Committee’s report states that the importance of judicial disqualification issues has grown sharply in recent years, especially in the wake of Caperton and Citizens United. “These decisions have significantly altered the landscape of judicial disqualification in the context of judicial election campaign support and have considerably raised the stakes” in states where judges are elected, it asserts.

Elaborating on the two landmark cases, the report continues:

“Caperton … strongly signals the importance, both to the States and to public perceptions of the judiciary in general, of having rules in State judicial codes that can contain the mischief of excessive campaign support in judicial elections. That importance has increased exponentially in the wake of the Court’s even more recent decision in Citizens United. There the Court held that statutory limitations on independent campaign expenditures by corporations and labor unions violated the First Amendment.

“Together, Caperton and Citizens United foreshadow an increase in the number and frequency of disqualification motions, because large corporations and labor unions may now make unlimited expenditures not only in general elections but in judicial elections as well.”

After referring to the possibility of even greater tides of campaign spending in judicial elections, the Standing Committee report discusses a threat to public confidence in the courts:

“Cognizant of this metamorphosis of the terrain of judicial disqualification and judicial campaign finance, [the Standing Committee] is concerned about polling and anecdotal data showing significant diminution in public respect for judicial independence, integrity, impartiality, fairness — lynchpins of the legitimacy of the judicial branch of government.

“What transpired during the November 2010 election cycle has only deepened these concerns. Large interest group contributions that go not to a judge’s campaign but to third party entities that use the funds to conduct extensive advertising for or against a particular judicial candidate are a phenomenon that was unknown when the Model Code provisions relating to judicial elections were drafted. All of this has considerably elevated the profile of disqualification and disclosure issues for State judiciaries.”

Last month, a New York Times editorial called on America’s courts to update recusal rules (see Gavel Grab). The editorial was entitled, “Can Justice be Bought?” Among its points, the editorial urged the American Bar Association to add “a strong recusal provision to its influential model code of judicial conduct,” and it outlined basic elements for that provision.

The ABA Standing Committee on Judicial Independence is a Justice at Stake partner.

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