Gavel Grab

States React to Caperton


Since the Caperton decision came down last week, the reaction from the states that have judicial elections, or may potentially have them, has been mixed.

Starting in West Virginia, where legislative options are being studied to prevent a situation like Caperton from happening again, the reaction was positive. West Virginia State Sen. Jeff Kessler, Chairman of the Senate Judiciary committee, said the U.S. Supreme Court decision would add some energy to the steps he has proposed, according to The Charleston Gazette.

Eric Velasco of The Birmingham News, in Alabama, states that the ruling will have little effect on Alabama’s nasty statewide judicial elections. Justice at Stake’s Charlie Hall was interviewed for this article, and his reasoning behind the lack of change was due to Alabama’s lack of transparency in campaign contributions. Hall said, “You can’t ask a judge to step aside if you don’t know where the money is coming from. Alabama needs to open the windows and let the sunlight in.”

This sentiment was shared by The Birmingham News editorial board, which wrote:

In Alabama, the impact of the Supreme Court ruling will be further diluted by the difficulty of identifying the source of campaign donations. The state allows contributions to be routed through a maze of political action committees. These PAC-to-PAC transfers are intended to hide the real donors and keep the public from learning about possible conflicts involving candidates and their campaign sugar daddies.

While the mood is skeptical in Alabama, the situation is more positive in Ohio. Read more

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Caperton: First Reflections

“This is a tremendous victory.”

That statement, by Justice at Stake Executive Director Bert Brandenburg, captures the essence of today’s landmark ruling by the U.S. Supreme Court in the case of Caperton v. Massey. (To see Justice at Stake’s full press release, click here.)

As the Supreme Court’s full written opinion makes clear, not all judges will have to step aside from any case involving campaign contributors. But for the first time ever, the court recognized that heavy spending by campaign backers with business before the court can force a judge to step aside, in order to guarantee a fair trial in an impartial court.

Given all the spending by special interests in recent decades specifically to influence the makeup of state courts, this is a historic recognition by the Supreme Court that the current system is broken. The ruling also is a historic extension of recusal law, which had never been applied to cases involving judicial election spending.

Justice at Stake is posting in stages today. In a bit, we’ll outline key quotes in Justice Kennedy’s opinion.

Justice Kennedy’s opinion also swept aside arguments by Massey’s lawyers that actual bias by a judge had to be demonstrated. It said the amount of spending by Massey CEO Don Blankenship, about $3 million, created a “probability of bias” that was unacceptable. And it cited the American Bar Association model code, which says judges should avoid the “appearance of impropriety,” in saying that most future recusal motions can be addressed at the state level.

To learn more about the case, you can also visit Justice at Stake’s online Caperton resource page.

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When Should Judges Recuse over their own Campaign Contributions?

The growing debate over recusal of judges over campaign cash has seeped into the federal courts.  This time questions involve contributions made by judges.  The National Law Journal reports that two members of the Minnesota Supreme Court, which has been hearing litigation over the prolonged U.S. Senate race recount there, have donated to incumbent Norm Coleman or to a political action committee that has supported him.  Another justice gave money to former Coleman opponent Paul Wellstone.

Two Minnesota justices have already said they will recuse themselves from hearing a recount appeal because they were part of a five-person board that oversaw the original recount.

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New legislation requiring judicial recusal due to campaign contributions.


The U.S. Supreme Court heard oral argument on the question of state judicial recusal requirements in Caperton v. Massey earlier this month. At issue, whether campaign contributions or expenditures on behalf of a judicial candidate are sufficient to mandate as a matter of due process a judge or justice recuse from a case. While the parties and others are awaiting a decision, state legislatures have been actively crafting their own proposals to address the issue.


Georgia’s HB 97 of 2007 would have required recusal where the judge’s campaign received $500 from one of the parties or their counsel. The requirement could be waived with the consent of all the other parties to the case.

Montana’s HJR 43 of 2007 would have directed the Legislative Council assess whether the current processes for judicial recusal and disqualification were correctly written and functioning and whether judicial candidates should be subject to the state’s Canons of Judicial Ethics. Read more

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Wisconsin Challenger Cites Justice at Stake Poll


A challenger in Wisconsin’s Supreme Court election has cited a new Justice at Stake poll in assailing Chief Justice Shirley Abrahamson’s refusal to remove herself from a case involving lawyers who contributed to her campaign.

Judge Randy Koschnick accused Abrahamson of being unethical by not recusing herself from a medical malpractice case that is to be heard March 5 by the Wisconsin Supreme Court. Lawyers in the case contributed $11,000 to Abrahamson’s election campaign this year against Koschnick, according to the Milwaukee Journal Sentinel’s All Politics Blog.

Koschnick’s statement cited Justice at Stake’s recent poll, according to the Capital Times:

Judge Koschnick discussed a study released on Feb. 23, 2009, by the group Justice at Stake under the title ‘Huge Majority Wants Firewall Between Judges, Election Backers.’ According to the study, 85 percent of those polled believe judges should step aside when parties spend big money to get that judge elected. The executive director of Justice at Stake, Bert Brandenburg, concluded that ‘Americans overwhelmingly believe that campaign cash has no place in the courtroom.’

“Justice Abrahamson has received over $30,000 from attorneys with cases currently pending before the Wisconsin Supreme Court. This amount includes $11,500 from three attorneys handling a medical malpractice case set for argument in March. Justice Abrahamson has Read more

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Investigation Probes Alleged NV Campaign Gift

A Las Vegas eminent-domain attorney, Laura Fitzsimmons, is tangled up in a federal investigation of whether she offered an illicit campaign contribution to a Nevada  Supreme Court candidate. 

According to an article in the Las Vegas Review-Journal, a political consultant offered to funnel $200,000 into Pickering’s campaign coffers, if Pickering promised to recuse herself from cases involving Fitzsimmons. 

Pickering said she rejected the offer, and notified the FBI to begin an inquiry.

Fitzsimmons vehemently denies any involvement, saying that “Kris Pickering and I have been bitter adversaries for 20 years, and any allegation that I would ever offer any financial assistance to her campaign for any reason is false.”

Pickering’s opponent, Deborah Schumacher, has  given back $20,000 in contributions she received from both Fitzsimmons and her husband for the campaign.  

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Decision Near on whether Supreme Court Will Take WV Recusal Case

As the New York Times reported this weekend, the Supreme Court will soon decide whether to hear Caperton v. Massey, which could decide when judges need to step aside in cases involving their campaign supporters.

In five separate briefs to the U.S. Supreme Court, organizations from across the political spectrum asked the court to hear the case.    The organizations included five Justice at Stake partners–the American Bar Association, the Committee on Economic Development, the Reform Institute, the Campaign Legal Center, and the Brennan Center for Justice–along with Public Citizen and the Washington Appellate Lawyers Association.

According to Theodore B. Olson, former Solicitor General of the United States and counsel of record for the petitioners, “The improper appearance created by money in judicial elections is one of the most important issues facing our judicial system today. A line needs to be drawn somewhere to prevent a judge from hearing cases involving a person who has made massive campaign contributions to benefit the judge.”

For more Gavel Grab coverage of Caperton, click here.

Update:  From Slate, more commentary on the case by American University Law Professor Amanda Frost, who writes, “If a state plans to embrace judicial elections, it should shield judges from having to collect campaign donations from the very groups that appear before them. Otherwise, they’ll be beholden to the parties that come before them. That’s even worse than the effect of lobbying on legislators.”

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Further Debate on Ohio Recusal Plan

Cleveland Plain Dealer report further discusses the proposal of Ohio Supreme Court candidate Joseph Russo, who says that any justice who receives more than $10,000 from a law firm or business over seven years should have to remove themselves from any case involving that entity.

The plan, previously reported in the Toledo Blade and Gavel Grab, was dismissed by Maureen O’Connor, whom Russo is challenging in the Nov. 4 election. Justice O’Connor rejectsed any perception that campaign gifts might influence a judge’s decisions, and accused Russo of playing political football.

The plan has already received criticism, including from Russo’s opponent in this upcoming election, Supreme Court Justice Maureen O’Connor. However, this is not the first time Russo, a Cuyahoga County Common Pleas Judge,  has suggested this plan:

He submitted his plan to the Ohio Judicial Conference earlier this year and later to a task force updating Ohio’s code of judicial conduct. The task force pared the plan down to a comment, or footnote, to another rule.

It then sent a draft of the code to the full court for review before sending it back to the public for comment. But when the court got done with it, the comment that originated with Russo’s proposal was deleted.

Russo cited a case that would have forced O’Connor to recuse herself:

As an example of how his plan would work, Russo noted that Murray Energy Corp. employees and family members collectively gave $11,500 to O’Connor’s campaign this summer soon after the company appealed a case to the Supreme Court.

“Under my plan, she wouldn’t be able to sit on that case,” Russo said. The court has not yet decided whether to accept the case.

O’Connor has out fund-raised Russo by a margin of nearly four to one, and has taken money from PACs including the Professional Insurance Agents Associations of Ohio and the Mayfield Clinic PAC, the Ohio National Financial Services group, as well as many individual contributions from doctors.

The American Bar Association recommended in 1999 that judges recuse themselves whenever their might be a reasonable perception of bias. The idea gained added force in April, when the Brennan Center for Justice wrote a report calling for further reforms in recusal practices to reduce the influence of campaign contributions.

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More on the Supreme Court and recusal

Tony Mauro at Legal Times looks at the amicus briefs asking the U.S. Supreme Court to hear Caperton v. Massey. West Virginia Supreme Court Justice Brent Benjamin has been asked to step aside in a case involving a contributor who spent millions of dollars supporting his election campaign. (Gavel Grab posted more on the case here.)

Last week, Justice Benjamin filed a statement explaining his decision.

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5/15/08: The Decision in Cali Has Come in, Plus Other News

State Supreme Court says same-sex couples have right to marry – The San Francisco Gate
Reaction to the San Francisco same-sex decision today at this site.

Read more…

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