Gavel Grab

Archive for the ‘Recusal’ Category

Recusal Derails Prosser Discipline Case

A third Wisconsin Supreme Court justice, Michael Gableman, has recused himself in a discipline case involving Justice David Prosser, making the case “all but dead,” the  Milwaukee Journal Sentinel contends.

Gableman joins Justices Annette Ziegler and Patience Roggensack, leaving just three Supreme Court justices in the case. The court would need four justices to make a final decision on whether Prosser engaged in misconduct and to determine discipline. However, with Gableman recused from the case, the three remaining justices cannot make a final ruling, the article strongly suggested.

Milwaukee lawyer Franklyn Gimbel says that Chief Justice Shirley Abrahamson can send the case to a special panel of three appeals court judges. Usually, this kind of panel hears judicial ethics cases, determines the facts and recommends action to the Supreme Court, which  makes the final ruling.

Prosser has pushed for his colleagues’ recusal because all of the justices were present during the incident in question, except for Justice N. Patrick Crooks.

To read more about Prosser’s ethics case, see Gavel Grab.

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Three West Virginia Justices Recuse in Public Financing Case

Three West Virginia Supreme Court justices have disqualified themselves from hearing a case involving the state’s public financing program for high court campaigns, and three lower court judges were named to take their places.

Allen Loughry, a Republican candidate for the state Supreme Court, is asking the court to order release of matching funds to his campaign under the statute, passed by legislators to reduce the influence of special-interest money on the courts. Loughry is the sole candidate campaigning for the high court this year to seek, and receive, public funding under the pilot program.

Justices Robin Jean Davis, Brent Benjamin and Margaret Workman have recused from hearing the case, according to a West Virginia Record article. Loughry is a law clerk for the state Supreme Court.

The statute allows release of additional, or matching, funds to help publicly financed candidates when privately funded opponents or independent groups outspend them. A U.S. Supreme Court decision last year, invalidating a similar provision in an Arizona law, has raised questions for some about the constitutionality of the West Virginia provision. To learn more, see Gavel Grab.

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Caperton Case Justice Says Evidence Showed No Bias

Ever since spending exploded on state supreme court elections in 2000, one of the most urgent debates has involved judicial recusal—whether and when elected judges should step aside from cases involving campaign supporters.  No case crystallized that debate more starkly than Caperton v. Massey.

On Friday, the West Virginia justice at the center of that case, Brent D. Benjamin, forcefully defended his role in hearing a case involving the company of a coal executive who spent $3 million to help put Benjamin on the state’s high court. He said that despite the expenditures, he had no ties to Massey Coal Co., or its chief executive, Don Blankenship, and therefore was able to hear the case impartially.

Speaking at the American Bar Association’s annual meeting in Chicago, Justice Benjamin said his overall record showed no favoritism toward Massey Coal Co. “If you’re talking about bias, my batting average over four years was that my decisions were 80 percent against Massey. … I was told during the campaign that Don Blankenship didn’t think too highly of me. That’s probably even more true now.” Read more

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Judge Dismisses Subpoena for Justice Melvin’s Colleague

Pennsylvania State Supreme Court Justice Max Baer will not need to testify at the upcoming preliminary hearing of his colleague,  Justice Joan Orie Melvin, the Pittsburgh Tribune-Review reports.

Justice Melvin’s attorney subpoenaed Justice Baer, Common Pleas Judge Kevin G. Sasinoski and four administrators to testify on the nine counts of criminal charges against Justice Melvin for her alleged use of court staff for campaign work (see Gavel Grab).

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Military Judge Declines to Recuse in USS Cole Trial

U.S. Army Col. James Pohl has declined to step aside from presiding as judge over the death-penalty trial at Guantánamo of Abd al Rahim al Nashiri, accused of masterminding al-Qaida’s 2000 suicide bombing of the USS Cole.

Defense lawyers contended that in Pohl’s post-retirement status, he could be subject to undue influence from the military and also from officers who command him, according to a Christian Science Monitor article.

“My status is no different than any other military judge,” Pohl said in rejecting the defense lawyers’ arguments.

The article said Pohl’s ruling was important in part because he will also preside over two other military commission trials, including that of Khalid Shaikh Mohammed, admitted architect of the 9/11 terror attacks. Reporter Warren Richey explained:

“Because there is only limited legal precedent guiding the newly created military commission process at Guantanamo, Pohl will play a particularly important role in shaping how tribunals will be conducted, such as deciding which pieces of evidence are allowed in the trials, including classified information and details culled from coercive interrogations.”

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WI Court Won’t Bar Gableman From Hearing Case

In a 3-3 vote, Wisconsin’s Supreme Court declined to force Justice Michael Gableman to step aside from a case in which he previously had received free legal help from one of the litigants’ law firms.

Justice Gableman declared in January that he could be impartial in cases involving the law firm of Michael Best & Friedrich,  which represented the justice  in a state ethics investigation. The high court previously had voted 3-3 to let Gableman hear a case involving collective bargaining rights for state workers.

The ABA Journal reported that “Three justices said in the order issued Thursday that the court does not go beyond a justice’s subjective review of recusal decisions and does not involuntarily remove justices from pending cases.”

Chief Justice Shirley Shirley Abrahamson dissented, saying, “The U.S. Supreme Court’s 2009 decision in Caperton v. A.T. Massey Coal Co. requires courts to make a due process determination whether the litigants had a fair hearing when a justice’s participation in a case is challenged.” To read more on this story, see Gavel Grab.

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New Judicial Accountability Law Takes Effect in Tennessee

A recently passed law to abolish Tennessee’s judicial discipline commission and replace it with a new ethics body, and to reform the way that judges are held accountable, has taken effect.

The law creates a new Board of Judicial Conduct, replacing the Court of the Judiciary. The plan also seeks to increase legislative oversight of the judicial branch.

“The new law aims to provide transparency and fairness to both complainants and judges,” said state Sen. Mike Faulk, a Republican, according to a Chattanoogan article.  “It also gives the Board a mechanism to use the new Rules of Judicial Conduct, which are nationally recognized as a model for other states, adopted by the Tennessee Supreme Court.”

The also law makes these other changes (see Gavel Grab):

  • All power to appoint members is removed from the Tennessee Supreme Court, which until now picked 10 of the 16 members. Read more

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Texas Judge Agrees to Recuse in Gas-Drilling Case

A district judge in Texas agreed to recuse himself from a gas-drilling case after an article in Bloomberg News revealed a potential conflict of interest related to his recent campaign materials.

Texas District Judge Trey Loftin has been accused of showing favoritism in a gas-drilling case involving Range Resource Corportaion (RCC). Plaintiff Steven Lipsky says RCC polluted his water supply with the chemicals methane and benzene.

The plaintiff argued that Loftin, who recently lost a GOP primary in his bid to serve another term, displayed bias in his campaign materials. According to Business Week, Judge Loftin mailed fliers to voters about his success in  getting the U.S. Environmental Protection Agency to back out of the case.

RCC filed a countersuit against Lipsky, stating that he wished to defame their image by bringing the EPA into the case. According to Business Week, Judge Loftin’s mailings also referred to remarks that  Rush Limbaugh made about the case.

Loftin wrote to his administrative judge, Jeff Walker:

“While I know that I have been a fair and impartial jurist, I am concerned that appearances in this case have become its own story. I agree that I should be recused and this case transferred for the appearance alone.”

Lipsky’s attorney’s, in a filing, argued that the campaign materials “reveal a personal bias or prejudice against the Lipskys.” Business Week reported that the judge may have broken a Texas judicial ethics code. That code prohibits judges from remarking on cases “in a manner which suggests to a reasonable person the judge’s probable decision.”

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Texas Column: Scotch, Beer, Campaign Cash and No Recusal

“Two bottles of Scotch and plenty of beer.”

It’s been a while since Gavel Grab has seen a column about lawyers, campaign cash, and impartial courts that begins with such a colorful line. And the (San Antonio, Texas) Express-News column only gets better:

“A gaggle of probate attorneys gathered at a law office to drink and discuss the re-election of a probate judge. And finally, the judge himself, dropping by with a list of names of other attorneys who could be persuaded to contribute money to his re-election campaign.”

Columnist Brian Chasnoff describes in detail a cash-bundling scene that would become the subject of a recusal motion in a Bexar County courtroom. Targeted for recusal was the recipient judge. He was presiding in a guardianship case involving a lawyer whose law office was the venue for the planning.

Judge David Peeples ultimately denied the recusal motion, after asking the author of the motion if something broader wasn’t at issue.

“If you are correct,” Judge Peeples said, “potentially, wouldn’t (this affect) every judge in cases involving lawyers that help them significantly in their campaigns, more than just contributing money, contributing a big sum of money, work for them, send out letters, work the poll for a morning on election day, put out the yard signs, all these judges that got some of these lawyers in their court?”

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Recusal Sought Over Judge’s Campaign Advertising

A Texas man who sued a gas driller now is asking the judge, who mentioned the case in campaign advertising, to step aside.

Steven Lipsky maintained in legal papers that Judge Trey Loftin’s campaign mailers “reveal a personal bias or prejudice against the Lipskys,” according to a Bloomberg article. “Judge Loftin’s campaign advertisements have touted the judge’s rulings against the Lipskys as an important reason why he should be re-elected.”

This week, after news media reports about the campaign materials (see Gavel Grab), Judge Loftin lost a GOP primary contest to hold on to his state judgeship. Some parts of the case are still in his courtroom, although one decision in the proceedings is under appeal.

There was no immediate response from Judge Loftin about the recusal request, according to Bloomberg.

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