Gavel Grab

Two Years After Caperton, Recusal Reform Lags

Two years after the Supreme Court’s landmark Caperton v. Massey decision, most states have failed to update their judicial disqualification rules to keep campaign cash out of the courtroom, two nonpartisan legal reform groups reported.

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 joint press release.

“The public insists that courts be impartial, with no special favors for campaign spenders, so that everyone gets a fair day in court,” said Bert Brandenburg, executive director of Justice at Stake. “Courts have it in their power to update their rules, so there is no reason for continued delay.”

“Three in four Americans believe that campaign spending in judicial elections affects  decision-making in the courtroom,” said Adam Skaggs, senior counsel at the Brennan Center. “The public recognizes that reasonable people may question judges’ impartiality because of campaign spending.  It’s time for state courts to recognize it, too — and adopt meaningful disqualification rules.”

The Supreme Court decided Caperton on June 8, 2009. It said a West Virginia justice could not hear a case involving a coal company whose chief executive 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.

Citing the 14th Amendment Due Process Clause, which grants every litigant the right to an impartial trial, the Court said a “serious risk of actual bias” was created when West Virginia Justice Brent Benjamin cast the tie-breaking vote to overturn the jury’s decision.

Following the ruling, there were predictions that Caperton would cause a torrent of appeals. Those predictions have turned out to be false. A Justice at Stake researcher found only 30 appeals nationally in the last two years that relied on Caperton to request recusal of a judge. And of those 30 cases, only five related to campaign spending.

The joint JAS and Brennan Center press release includes a comprehensive chart about recusal reform in the states since Caperton. The Brennan Center is a JAS partner group.

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