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An Academic Discussion of Judicial Ethics, Discipline & Disqualification

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The ABA Considers New Ethics Rules for Judicial Campaign Contributions

Posted by kswisher on Sunday, January, 15, 2012

Following the ABA’s Resolution 107 (re: judicial disqualification and campaign contributions), the ABA’s Ethics and Discipline Committees have released for comment a series of ethics amendments that would add greater transparency to judicial campaign contributions and other campaign support.  A new Model Rule of Professional Conduct would guarantee that lawyers and law firms disclose their combined contributions to either an administrative court agency or the elected judge herself.  (Although the details need some ironing, this is a good idea; read why here.)  Furthermore, an amendment to the Model Code of Judicial Conduct would clarify when campaign contributions and other support (e.g., endorsements or campaign services) should result in the judge’s disclosure and recusal. 

The Committees will hear testimony at the ABA’s meeting next month in New Orleans.  To read the proposed amendments in full, click here.

Posted in Canon 2, Canon 4, Judicial Campaigns, Judicial Disqualification & Recusal | Leave a Comment »

Bigger Judges Attacking Littler Judges

Posted by kswisher on Sunday, January, 15, 2012

We rarely see the use of one very scary weapon to keep a trial judge in line — indirect criminal contempt.  The Supreme Court of the United States Virgin Islands, however, recently used it.  After a trial judge refused to follow the supreme court’s mandate, criticized the accompanying opinion, and recused himself from the case, the supreme court ordered a show cause hearing.  Even though the special master who then presided over that hearing recommended that the trial judge be acquitted on all counts, the supreme court — i.e., the same court that was repeatedly criticized by the trial judge in his allegedly offensive recusal order — disagreed, found him in contempt, and set a sentencing date.  Although the trial judge’s recusal order did contain overly critical language, the supreme court’s acts are questionable as a matter of due process, cf. Mayberry v. Pennsylvania, 400 U. S. 455, 465-66 (1971); In re Murchison, 349 U.S. 133, 137 (1955), and dangerous to decisional judicial independence (insofar as much of the supreme court’s decision is based on the language in the trial judge’s published order; contempt decisions involving only the act of failing to follow a superior court’s clear order are obviously less problematic).  Perhaps the justices should have recused themselves, or at a minimum, given the judge one warning.   

Hopefully, this weapon will continue to be a rarity.  For the supreme court’s opinion, click here; and for the trial court’s order that offended the supreme court justices enough to impose a criminal conviction on the trial judge, click here. 

Posted in Canon 1, Canon 2, Canon 3, Judicial Disqualification & Recusal | Leave a Comment »

Membership, Discrimination, and Diversity

Posted by kswisher on Monday, December, 5, 2011

Canon 2C prohibits judges from “hold[ing] membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.”  Six months ago, we wrote about the sharply divided decision of the Sixth Circuit Judicial Council, which had concluded that Chief Bankruptcy Judge George Paine did not commit misconduct by remaining a member of an exclusively white-male country club.  The Judicial Conference of the United States has now officially disagreed.  In particular, its Committee on Judicial Conduct and Disability reviewed the decision and “easily” determined that the judge’s country club “invidiously discriminates against women and African Americans for purposes of Canon 2C and, consequently, that Judge Paine’s membership in the organization runs afoul of that Canon.”

The opinion is worth a close read for many reasons, only two of which follow.  (It is interesting, for example, that the Committee twice criticizes the Sixth Circuit for failing to investigate fully the matter and thus basing its decision on incomplete information; the Committee then does nothing further and bases its decision on the same information.  But let’s leave that problem for another day and focus on the content of this important opinion.)  First, the opinion is worth reading for the footnotes.  As is often the case, textual footnotes are among the most thought-provoking (or sometimes mind-numbing) part of opinions.  On the point that the Sixth Circuit’s investigation was inadequate, for example, the Committee expressed regret that the Sixth Circuit ”appeared to resolve ambiguities in the record against the complainant.”  The Committee’s point is a good one, but is it clear that ambiguities (which invariably exist and persist) should be resolved in favor of complainants?  Perhaps the answer to that question should vary with the Canon at issue.  For Canon 2C, for instance, the respondent judge has voluntarily chosen to join or remain in the allegedly discriminatory organization, the judge will presumably have the best access to the organization’s membership rosters and policies, and the Canon is concerned in part with appearances.  In those circumstances, then, perhaps it might be permissible to shift the burden to the judge to prove that the organization does not discriminate — and perhaps that the organization also does not reasonably appear to discriminate. 

Canon 2C’s official commentary, on which the Committee later relied and built, does contain a form of burden-shifting when a judge joins or remains in a non-diverse organization, if “reasonable persons with knowledge of all the relevant circumstances would expect the membership would be diverse in the absence of invidious discrimination.”  “Relevant factors” in that regard ”include the size and nature of the organization and the diversity of persons in the locale who might reasonably be considered potential members.”  Here is the Committee’s application: “Nashville, Tennessee, is one of the major cosmopolitan cities of the Southern United States. In particular, it boasts a 27% African American population. Its female population is just over 50%. Although few organizations perfectly mirror the population trends of their surrounding locales, a member of the public would reasonably expect to see at least some women and African Americans among Belle Meade’s Resident Membership barring (1) invidious discrimination or (2) something unique about the Club — ‘such as that the organization is dedicated to the preservation of religious, ethnic or cultural values of legitimate common interest to its members,’ [Canon 2C Commentary] — that would suggest otherwise. There is, however, nothing about Belle Meade’s stated aims or activities that provides any such justification for the total absence of any female or African American Resident Members. . . .  Naturally, there is no shortage of women or — as Judge Paine proclaimed in his 1990 letter to the Club’s Board — African Americans fitting that description.”  Thus, absent someone (presumably Judge Paine) coming forward with proof to the contrary (which is obviously unlikely in this case because Judge Paine believed that the club’s policies were indeed problematic), the judge’s membership may be determined to be misconduct.

Later in the footnotes, the Committee also conceded a bombshell: “To our knowledge, Canon 2C has never before been enforced.”  To place that statement in its context, Canon 2C, in its current form, has been on the books for twenty years.  Now, such shocking statements permit one’s optimistic or pessimistic nature to come out: judicial ethics regulation has finally matured to the point of enforcing a critical rule (and hopefully others like it) designed to ensure an actually and apparently impartial judiciary; or judicial ethics regulation has failed for twenty years to enforce such a critical rule.  Indeed, on the pessimistic side of the ledger, it is noteworthy that — despite finding a violation of Canon 2C — the Committee failed to impose any discipline:  because Judge Paine has expressed an intention to retire soon, and “because this decision represents the first enforcement of Canon 2C, there is no cause at this point for us to take disciplinary action.”  (Indeed, the Committee went further, proclaiming that the judge will retire with his “reputation . . . intact.”)  I have noticed this phenomenon several times in discipline decisions involving both lawyers and judges, although most of the cases are older ones.  The idea seems sound in a common-law based sanction regime: we should apply the (new) rule only retroactively because, in part, respondents necessarily could not have had notice of the rule in advance to guide their conduct.  The idea seems significantly less sound in a code-based sanction regime (i.e., the one that we have had for a long time): Canon 2C has always been publicly available and has always prohibited this behavior by its terms.  Why, then, do we give the first respondent a free pass?  We can come up with a few reasons, but because the Committee offered none (save the impending retirement), we have no one with which to argue.   

Yet another footnote is interesting and particularly so for sex-segregated organizations.  Judge Paine’s club (Belle Meade) did have a “lady membership,” which was priced less (but included no voting rights).  The Committee noted that “insofar as Lady Membership is preferable to other forms of membership, the exclusion of men from that category arguably constitutes another form of gender discrimination under the Code.”

Second, the opinion is worth reading because it offered some guidance to judges considering joining an organization: “Any judge considering membership in an organization should take steps to ensure that such membership would not appear improper. Naturally, those steps will differ to some degree depending on the particular circumstances. But we expect them to include, in all cases, a survey of the group’s membership, constitution, and bylaws. If ‘reasonable persons with knowledge of all the relevant circumstances would expect that the membership would be diverse in the absence of invidious discrimination,’ but the membership nevertheless is not diverse, the judge should err on the side of caution and decline membership.”  The Committee also offered a fuller vision of the two-year remediation exception (i.e., that a judge has up to two years to fix a discriminatory organization to which s/he already belongs): ”The two-year qualification must be read in light of Canon 2C’s safeguarding of the appearance of propriety. Thus, we believe that this provision is available only if a judge determines that diversification efforts by the judge could reasonably succeed. In those circumstances, he or she may continue to hold membership in diligent pursuit of those efforts for a reasonable period of time not to exceed two years.”

The full opinion can be read here.

Posted in Canon 2, Judicial Ethics Generally | Leave a Comment »

New Scholarship: Bam on Judicial Recusal Regulation

Posted by kswisher on Sunday, December, 4, 2011

Dmitry Bam (Maine) has just published a provocative article on judicial recusal.  Prof. Bam claims persuasively that we in the field have been ineffectively emphasizing the substantive recusal standards and the actual recusal results in specific cases.  As he explains, “[f]ocusing on the final recusal decision, and considering appearances only at the time of that decision, places too much emphasis on an aspect of recusal that may not be so important, at least when it comes to public confidence in the impartiality and fairness of American courts.” 

He instead recommends that we shift our emphasis in two steps: “The first part requires that attention shift away from the outcome-based recusal jurisprudence that focuses on the substantive recusal standard and the actual recusal decision. The second requires that attention shift toward the rules, regulations, and procedures that precede the recusal decision: namely, (1) ex ante regulation of judicial conduct and judicial selection that creates the appearance of bias in the first place, and (2) new recusal procedures to govern the processes by which judges make recusal decisions.  The recommended shift of attention to ex ante regulation of judicial conduct and appearance based recusal procedures will promote the appearance of judicial impartiality.”

As Prof. Bam himself notes, “[i]t may seem odd at first glance that in this Article about recusal, the key jurisprudential change that I recommend is not actually a change to recusal rules at all, but rather a new approach to regulating judges and aspiring judges.”  But his aim is well-intended and one we should keep in mind in reform: “I hope to show that to maximize the appearance of impartiality, the time to think about recusal is before the appearance of bias arises in the first place.”

Dmitry Bam, Making Appearances Matter: Recusal and the Appearance of Bias, 2011 BYU L. Rev. 943.

Posted in Canon 2, Canon 3, Judicial Disqualification & Recusal | Leave a Comment »

New Drug Court Study and the Effectiveness of Ethics

Posted by kswisher on Sunday, August, 7, 2011

An ambitious study of drug courts was recently completed.  Funded by the National Institute of Justice, several collaborating organizations analyzed more than twenty drug courts over a five-year period.  Not surprisingly, the study contains many interesting observations, but what is particularly noteworthy is the correlation between judicial ethics and the effectiveness of those drug courts.  That is, almost all of the following findings would have been required or (at a minimum) encouraged as a matter of judicial ethics:

Role of the Judge: The primary mechanism by which drug courts reduce substance use and crime is through the judge. Drug court offenders believe that their judge treated them more fairly than the comparison group, including demonstrating greater respect and interest in them as individuals and greater opportunities to express their own voice during the proceedings. Furthermore, when offenders have more positive attitudes toward the judge, they have better outcomes. This was true across all offender subgroups when examining demographics, drug use history, criminality, and mental health. A separate analysis drawing upon the results of structured courtroom observations found, similarly, that drug courts whose judge was rated by members of the research team as exhibiting a more positive judicial demeanor (e.g., respectful, fair, attentive, enthusiastic, consistent/predictable, caring, and knowledgeable) produced better outcomes than other drug courts. Both analyses reaffirmed the central role of the judge.

Judges may well have performed these duties as a matter of principle, but it is doubly rewarding to see the principles leading to good results.  In light of the above conclusions, the study recommends these four points for drug court judges:

  • Hold frequent judicial status hearings; in light of previous research on this topic, consider increasing the frequency of status hearings for “high risk” participants in particular.
  • If the jurisdiction allows it, choose drug court judges carefully. Drug courts will be best served if administrators intentionally assign judges to the drug court who are committed to the model and interested in serving in this role.
  • Monitor “client satisfaction” with the judge.
  • Train judges on best practices regarding judicial demeanor and regarding how to communicate effectively with program participants.

The study can be found here.

Posted in Canon 2, Canon 3, Judicial Ethics Generally | Leave a Comment »

The Sixth Circuit and Historically White Country Clubs

Posted by judicialethicsforum on Monday, June, 13, 2011

The Judicial Council of the Sixth Circuit recently dismissed a complaint against Chief Bankruptcy Judge George C. Paine, concluding that the judge could permissibly remain a member of an exclusively white-male country club.  Although the club does have “lady members” and one African-American male non-voting member, the club’s 600 voting members are all white.  The complaint alleged, therefore, that the judge violated Canon 2A and Canon 2C of the Code of Conduct for United States Judges.  The Council’s vote was deeply divided (10-8), with the slight majority voting to dismiss the complaint.  The dissent noted, among other points, that Judge Paine should have resigned at the moment (or at a minimum, within two years after) he realized that his efforts to change the Club’s discriminatory practices had failed.  [Read the full opinion here.]

Some press coverage follows: New York Times; Wall Street Journal; and The Tennessean.

Posted in Canon 2, Judicial Ethics Generally | Leave a Comment »

New Scholarship: McKoski on Actual v. Apparent Impartiality

Posted by judicialethicsforum on Sunday, March, 27, 2011

Judge McKoski (recently ret.) has again contributed to the corpus of judicial ethics scholarship.  His thought-provoking new work can be downloaded here, and the abstract follows: 

The legitimacy of the judicial branch of government depends on the impartiality of its judges. Nineteenth century lawyers and litigants understood this fact and regarded actual impartiality as the fundamental value of judicial ethics. Today, the emphasis on maintaining judicial legitimacy has shifted from reality to perception. Modern codes of judicial ethics are designed first and foremost to protect the “appearance” of impartiality by barring any personal, financial, civic, or political activity of a judge that may be perceived as adversely reflecting on judicial objectivity. Insuring impartiality in fact has become a secondary concern.

The career of nineteenth century judge David Davis illustrates that actual judicial impartiality, not the appearance of impartiality, sustains public faith in the judiciary. Davis was universally recognized as an impartial judge even though his off-bench alliances, especially with Abraham Lincoln, shouted out partiality and favoritism. After establishing Judge Davis’s unimpeachable reputation for courtroom fairness, the Article evaluates his off-bench activities under modern rules of judicial conduct. Next, the Article traces the transition from actual impartiality as the measure of a judge’s worth in Davis’s time to today’s emphasis on appearances. Finally, modest reforms in judicial selection, evaluation, education, and discipline are offered as a means of reestablishing actual impartiality as the fundamental value of judicial ethics.

Raymond J. McKoski, Reestablishing Actual Impartiality as the Fundamental Value of Judicial Ethics: Lessons from “Big Judge Davis”, 99 Ky. L.J. 259 (2010-2011). 

Posted in Canon 1, Canon 2, Canon 3, Judicial Disqualification & Recusal | Leave a Comment »

Judicial Ethics in the News

Posted by judicialethicsforum on Sunday, March, 27, 2011

Here are two noteworthy items in the world of judicial ethics:

(1) Adding heat to the recent law professors’ letter to Congress calling for ethical regulation of the Supreme Court, Representatives Chris Murphy and Anthony Weiner have introduced a bill named the Supreme Court Transparency and Disclosure Act.  In essence, the resulting law would (1) apply the Code of Conduct for United States Judges to the Supreme Court Justices, (2) require Justices to issue reasons for recusing or failing to recuse themselves, and (3) provide a procedure for review whenever Justices deny motions to disqualify.   [For some critical commentary, see here, where Brookings asserts that similar reform proposals would transgress  Article III, § 1, vesting judicial power in “one Supreme Court.”]

(2) There has been yet another disappointment from one of the most disappointing cases in Wisconsin.  After the Wisconsin Supreme Court Justice Gableman approved a misleading judicial campaign ad, after he then refused to recuse himself in a criminal matter in which his impartiality was questioned, and after the Wisconsin Supreme Court split straight down the conservative-liberal divide both in deciding whether to discipline Gableman and in deciding whether to review his failure to recuse himself (see here for details), we now learn that another Justice (Prosser) called the Chief Justice (Abrahamson) a “total bitch.”  He allegedly topped off this statement with a threat: “I will destroy you.”  If true, it should be noted that state judges on lower courts are often disciplined for such “intemperate” behavior. 

Posted in Canon 2, Canon 3, Judicial Disqualification & Recusal, Judicial Ethics Generally | Leave a Comment »

Judicial Discipline Case of the Week: Judge gets no “professional courtesy” for DUI

Posted by judicialethicsforum on Sunday, January, 9, 2011

The well-regarded New York State Commission on Judicial Conduct recommended censure for family court Judge Gerard Maney after the judge performed an illegal u-turn to avoid a sobriety checkpoint and repeatedly informed the officers of his judicial position.  The Judge requested that the officers give him a “professional courtesy” as a result of his judgeship.  The Commission found this conduct to be in violation of the New York Rules Governing Judicial Conduct §100.2(C), which states that a “judge shall not lend the prestige of judicial office to advance the private interests of the judge or others.”  (The Commission also found the judge to have violated Rules 100.1, 100.2(A), 100.4(A)(2), and 100.4(A)(3).)  Despite the judge’s twenty-year-long-incident-free record, the Commission determined that a censure was appropriate.   

In addition to the “professional courtesy” bit, the case is interesting in two further ways.  First, three members concurred in the result, but wrote separately to express remorse about the Commission’s decision to draw negative inferences from the judge’s decision not to testify at the hearing.  That is indeed a controversial inference, but the New York Court of Appeals has blessed it.  See, e.g., In re Reedy, 475 N.E.2d 1262 (N.Y. 1985).  The second interesting feature of the case is the point of the two-member dissent.  As the dissent noted, the Commission can decide either to (as here) censure a judge or remove a judge (suspension is not an option).  All members seemed to agree that a censure was too lenient, but the majority apparently believed that the next step up (removal) was too harsh.  For middle-ground conduct, then, the majority assumed that the Commission should round down (to censure), while the dissent argued that the Commission should round up (to removal). 

The full opinion can be read here.

Posted in Canon 2, Canon 3 | Leave a Comment »

A Judge, An Exotic Dancer, Some Hard Drugs, and a U.S. Attorney

Posted by kswisher on Thursday, December, 2, 2010

I resisted posting on federal Judge Jack Camp’s (N.D. Ga.) problems when they came to public light.  To be sure, the scandalous facts were magnetic (see here), but his alleged conduct was so plainly improper – and frankly dumb — that a post felt too obvious and too much like shooting someone in a deathbed.  But thanks to the Georgia U.S. Attorney, there is now something worth noting here.  In a relatively quick timeframe and proactive manner, the U.S. Attorney (Sally Yates) has announced that any defendant who was sentenced under Judge Camp – or at least the bad version of Judge Camp, who was using drugs and carrying weapons for a proven five-month period — can request an unopposed resentencing (unopposed in obtaining a resentencing, that is, not in a request for probation).  She noted that the federal investigation had uncovered accusations of Judge Camp’s impairment (via “marijuana, powder cocaine, Xanax, Roxicontin, and other unknown prescription painkillers” and “some may have been taken while Camp was also consuming alcohol”) and racial bias (in that Judge Camp suggested to an informant that he had sentenced an African-American male more harshly and a caucasian female more leniently owing to race).  Again, as a matter of judicial ethics, such allegations, if true, are easily categorized as unethical.  What is laudable, however, is the U.S. Attorney’s proactive attempt to remedy even the appearance of incompetence and bias, rather than engage in protracted litigation about what, in fact, Judge Camp had on his mind (e.g., drugs or racism) at the time of the sentencings.  The U.S. Attorney prefaced her remarks with, and was apparently pointed in the right direction by, her “one responsibility — to seek justice.”   The local news has her full statement here.      

Posted in Canon 1, Canon 2, Canon 3, Judicial Ethics Generally | 1 Comment »

Warning the Public About Judge Keller

Posted by kswisher on Saturday, July, 17, 2010

In a surprising, but just, twist, the Texas Commission of Judicial Conduct  — contrary to the ambivalent findings of its special master — has issued a “public warning” against Presiding Judge Sharon Keller for the time when she let a capital defendant be executed notwithstanding meritorious grounds for a stay (for a more detailed account of her actions, see the earlier post here).  Among other violations, the Commission found that Keller violated Canon 3B(7) (renumbered 3B(8) in the Texas Code), for failing to accord the defendant and his lawyers the right to be heard according to law.  She may appeal.  In addition to this public shaming, this controversy ultimately caused the Texas Ethics Commission (a separate regulatory body) to investigate Keller’s financial disclosure statements, and on finding significant failures to disclosure, it levied a record fine of $100,000 against her.  

Read the public warning here; and read the order imposing the fine here. 

UPDATE: In yet another twist, a Texas special court of review dismissed the charging document on the ground that the state constitution does not permit the sanction of “public warning,” only “censure” (and recommendations for retirement or removal).  The court did not “express an opinion concerning the merits of the accusations against Judge Keller,” but its disposition effectively precludes the Texas Commission on Judicial Conduct from re-charging her.  That disposition makes little sense to me in this context, provided that the re-charging and prosecution were to accord her due process (an issue obviously not addressed or perhaps even ripe).  The local news station has linked to the full opinion here. 

Posted in Canon 2, Canon 3, Judicial Ethics Generally | Leave a Comment »

New Scholarship: McKoski on the Appearance of Impropriety Standard

Posted by judicialethicsforum on Tuesday, June, 1, 2010

Judge Ray McKoski has just published a thorough work on the ever-controversial appearance of impropriety standard.  Here is the abstract: 

Judges are required to forego a litany of professional and personal behaviors deemed to be inconsistent with the role of the neutral magistrate. For example, codes of judicial conduct prohibit ex parte communications, the misuse of office, public commentary on prohibited topics, and participation in certain social, religious, and political activities.

In addition to specific rules barring actual improprieties, it is commonly believed that a broader disciplinary standard is necessary to fully safeguard the public’s faith in the judiciary. As a result, under virtually every state judicial code, discipline may be imposed upon a judge for conduct which may not violate a particular rule but which is thought to create “an appearance of impropriety.”

This Article examines the disciplinary use of the appearance of impropriety standard from a theoretical and practical standpoint. The history and development of the standard is explored together with the most debated aspect of the rule—whether the “appearance of impropriety” prohibition can survive a vagueness challenge. The inescapable conclusion is that it cannot. A cost-benefit analysis further discloses that the disadvantages of the rule clearly outweigh its oft-touted but, nevertheless, illusory benefits. It is proposed that the use of the appearance standard as a disciplinary rule should be discontinued or, in the alternative, that a limiting construction should be placed on the “appearance of impropriety” thereby supplying the specificity needed to meet due process requirements.

Raymond J. McKoski, Judicial Discipline and the Appearance of Impropriety: What the Public Sees Is What the Judge Gets, 94 Minn. L. Rev. 1914 (2010).

Posted in Canon 1, Canon 2 | Leave a Comment »

Two Comments on Extrajudicial Comments

Posted by kswisher on Wednesday, December, 16, 2009

There have been (at least) two interesting developments of late in the world of judges’ extrajudicial commentary about their pending cases.  First, Massachusetts loosened its former prohibition on extrajudicial comments in primarily two ways: (1) judges may now respond publicly about their “conduct” in a pending matter, so long as their response is unrelated to the merits of the matter; and (2) judges may now issue an explanatory memorandum, in which they elaborate on their reasons for a previous ruling, so long as the memorandum is not “issued solely to respond to public criticism of the decision” and does “not rely on any information that was not within the record before the judge at the time of the underlying order.”  It might be disputed whether these amendments substantively change black-letter canon law to any significant extent, but they certainly make what is permitted more explicit.  The chief change to the text of the Massachusetts Code is new subsection (D) of Canon 3B(9):

A judge is permitted to make public comment concerning his or her conduct provided that such comments do not reasonably call into question the judge’s impartiality and do not address the merits of any pending or impending judicial decision. 

The full text of the amendment can be found here, and the reports of the ad hoc committee that inspired the amendment can be found here (that committee, however, split on its recommendation to the Supreme Judicial Court, with a majority of the committee recommending a more dramatic loosening of the rules than what the court ultimately adopted).  For a favorable discussion of the Massachusetts’ amendment and a somewhat unfavorable discussion of the amendment’s counterpart in the new Model Code of Judicial Conduct, Rule 2.10(E), see Mark I. Harrison & Keith Swisher, When Judges Should Be Seen, Not Heard: Extrajudicial Comments Concerning Pending Cases and the Controversial Self-Defense Exception in the New Code of Judicial Conduct, 64 N.Y.U. Ann. Surv. Am. L. 559 (2009).  Coincidently, that article was cited by the Eighth Circuit’s recent decision in the Michael Vick case — White v. NFL, 585 F.3d 1129 (8th Cir. 2009) — which brings me to the second development in extrajudicial commenting.

In the White (Vick) case, the court was faced with the question whether the district judge should have recused himself from the proceedings.  The reasons for that question included that the judge (i) had posed for a press picture holding a football in his robe, (ii) had claimed publicly that the NFL team owners (i.e., one of the parties) complain about his rulings “yet even though they complain about it, . . . all they’ve done is make tons of money,” and (iii) had met ex parte with team representatives (but not team owners) before several proceedings.  Interestingly, the Eighth Circuit concluded that — although there was a “danger” in the judge’s behavior and although the judge would have been “well advised not to opine publicly about his role” in related proceedings — he did not violate the prohibition on extrajudicial comments.  Id. at 1140-41.  In judicial ethics opinions, this dichotomy arises quite frequently; a judge’s conduct will be held “inadvisable” under the Canons, but not violative of them.  There is some support for this two-track system – namely, that some violations are violations and some are just “inadvisable” or “imprudent” — in the Preamble to most Codes, but is this two-track system transparent and fair?  Would and should, for instance, a criminal or civil defendant receive the benefit of this vague second track for some lesser violations of criminal or civil law?   

Posted in Canon 2, Canon 3, Judicial Disqualification & Recusal | Leave a Comment »

Facebooking in Florida

Posted by judicialethicsforum on Wednesday, December, 16, 2009

Prof. Ilya Somin has posted some interesting commentary on the new(er) Florida judicial ethics opinion addressing judges “friending” attorneys on Facebook.  Prof. Somin’s commentary can be found here (at the Volokh Conspiracy); and the full text of the judicial ethics opinion can be found here.  The opinion has already received national attention, and consequently, the point of this post is primarily just to give the readers the preceding links in the somewhat unlikely event that they have not yet heard of this controversial opinion. 

UPDATE: For the contrary view, see Ohio’s advisory opinion here.  To learn about a judge who crossed the line with Facebook, among other things, through ex parte contacts and other transgressions in a pending matter, see here. 

Posted in Canon 1, Canon 2, Canon 3, Judicial Disqualification & Recusal | Leave a Comment »

Torture and Humiliation in Ohio

Posted by kswisher on Monday, September, 14, 2009

Associated Press and other national media have seized on a story of an Ohio judge who ordered that a defendant’s mouth be duct-taped shut.  I have been avoiding blogging about the incident for several reasons, the most relevant of which is that such scandalous stories happen (too) often on the bench (and elsewhere), often within the lowest of court tiers within the state system.  (Think New York, for example, with its rather large number of discipline cases involving town and village court justices.)  In short, if we were to blog about every outlying wart of a judge, it probably would bog down the blog in negativity, and as negativity often hopes, little rational discussion would result.  (For a more rational discussion of outlier judges, see for example Geoffrey P. Miller, Bad Judges, 83 Tex. L. Rev. 431 (2004).)  This story, however, has caused me to lose too much sleep over the last two weeks to suppress it.  A disclaimer is in order, then: If you would like to avoid negativity today, or if you value your sleep more than I do, do not read on. 

The lead-in facts are simple, particularly because they are repeated in hundreds of criminal courtrooms every day.  A man charged with shoplifting, perhaps among other charges, is rotting in jail.  While there, he naturally wonders where is his court-appointed attorney, what is she doing, why is she not visiting him, and when (if ever) will he be released pending trial (or plea bargain).  Indeed, from the time that the defendant is jailed to the time of the preliminary hearing, his court-appointed attorney spends only “three minutes” with him.  One in his shoes would understandably be irate with the criminal justice system, if not with the attorney as well.  (I remember hearing something once or twice in the greatest-country-on-earth lines that we here are presumed innocent and, not surprisingly in such a country, we have an opportunity for bail.)  For our purposes, suffice it to say that a typical defendant, like Harry Brown (the part criminal defendant, part victim of our story), would be supremely irritated by the time his preliminary hearing arrived and no one had tried to secure his release (or at a minimum, explain why release would not be forthcoming).  At his next appearance before the court, he would almost surely voice his frustration with this court-appointed arrangement.  He would expect — perhaps be entitled? — to appear before a judge who is courteous and listens to his views.  See, e.g., Ohio Code of Judicial Conduct, R. 2.8(B) (2009) (“A judge shall be patient, dignified, and courteous to litigants, . . . and shall require similar conduct of lawyers, court staff, court officials, and others subject to the judge’s direction and control.”).  Indeed, the “duty to hear all proceedings with patience and courtesy is not inconsistent with the duty imposed in Rule 2.5 to dispose promptly of the business of the court.”  Id. cmt. 1; see also id. R. 2.6 (ensuring each party the right to be heard according to law).   

With that wind-up, you must listen for yourself to the audio recording of the proceeding, which is short and bitter.  It can be found here (click on the Audio tab after the page opens).  You will hear that (1) the judge attempted no less-humiliating alternatives than duct-tape (save one verbal warning); (2) the defendant, while frustrated, was not disrespectful or profane; (3) the defendant offered to sit back with the other in-custody defendants, but (4) the judge demanded that duct-tape be forced over the defendant’s mouth.  You will not hear (1) the judge concerned with whether duct-tape can suffocate a person (it can), (2) whether forcefully removing duct-tape, which the judge ordered a few minutes later, will inflict pain (it does), or (3) any clear indication that this judge respects human beings.  In closing, you will hear the judge add injury to injury by giving the defendant thirty days for contempt and then cracking a joke about the matter.  All of this is particularly shocking because the judge has a long history of formal legal training – he is not a nonlawyer lower-court justice who occasionally shoots from the hip and renders “rough justice.”  (The judge’s bio can be found here.)

Of course, it almost goes without saying that you must judge this judge for yourself — these are just my opinions from listening to the audio recording.  But remember my earlier point about negativity and lack of rational discussion — if your opinion does differ from mine, this is one time in which your opinion, while welcome, will not sway mine.  In fact, I am teaching torts this semester, and we cover that great tort of outrage (aka intentional infliction of emotional distress).  This cruel ritual reminds me like no other of the Restatement’s famous formulation of that tort:

Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘‘Outrageous!’’

Although the judge is donned with judicial immunity and consequently cannot face judgment for the tort of outrage (or battery), trustfully the Ohio disciplinary regime is listening.  To close this vent, if we never again hear of a judge duct-taping another litigant, it will be too soon.     

Posted in Canon 2, Judicial Ethics Generally | Leave a Comment »

Pro se litigants

Posted by graycynthia on Wednesday, August, 19, 2009

In a recent judicial discipline decision, the Louisiana Supreme Court gave a persuasive description of the importance of respectful judicial demeanor in the courtroom, particularly in cases involving pro se litigants. In re Ellender (Louisiana Supreme Court July 1, 2009). Based on a statement of stipulated uncontested material facts and stipulated conclusions of law, the Court suspended a judge for 30 days without pay for his treatment of the petition at a hearing on a petition for protection from abuse for suggesting that the pleading alleging domestic abuse was inconsequential, suggesting approval of the infliction of severe corporal punishment on a child, and acknowledging he did not appropriately address the father’s statement about whipping his child.

Most of the current justices on the court have experience on the trial bench so they understand the challenges faced by trial court judges.

Judges are called upon to render difficult decisions in sensitive and emotional matters. . . . Often a judge’s patience is tested when simultaneously confronted with crowded dockets to be managed and countless difficult decisions to be made. Litigants occasionally lash out at the judge if their side does not prevail, inappropriately casting aspersions on the judge. . . .

In donning the judicial robe, judges are not suddenly cloaked with faultlessness. Thus, judges cannot be subjected to discipline merely because someone mistakes decisiveness, forcefulness, or sternness for a lack of patience, dignity, or courtesy.

However, the justices were also able to empathize with those on the other side of the bench.

Being in court is a common occurrence for judges, but for litigants, especially pro se litigants, a courtroom appearance can be an immensely difficult experience. Litigants appear before judges to have their disputes resolved. Judges serve the public, in part, by setting an example in how to resolve these disputes in a patient, dignified, and courteous manner. If a judge acts belligerently, those before the judge believe belligerence is acceptable. Judges have an opportunity to teach by example and demonstrate those attributes which all should strive to possess.

* * * The lack of patience exhibited in this matter prevented a full consideration of the legitimacy of the allegations in the pleading, especially considering some of the complaints in the pleading were not addressed before the matter was summarily dismissed. There was a potential risk of serious harm stemming from this judicial misconduct in that the complainant was seeking protective relief from threatened violence in a domestic matter. Mrs. Warren appeared before Judge Ellender, unrepresented by counsel, asking the court for protection based on allegations of domestic abuse. The record is clear that Judge Ellender not only failed to treat this matter seriously, but he also acted in a condescending and demeaning manner toward Mrs. Warren and treated her with a lack of patience. While such behavior should not be tolerated with respect to any litigant, or attorney, the impact on domestic abuse litigants, and others who allege a need for the court’s protection, can be devastating.

Posted in Canon 2, Canon 3 | Leave a Comment »

Organizations that Practice Invidious Discrimination

Posted by graycynthia on Tuesday, June, 30, 2009

The controversy about Supreme Court nominee Judge Sonia Sotomayor’s membership in several organizations prompts a review of what the code of judicial conduct does and does not prohibit.  Canon 2C of the Code of Conduct for U.S. Judges provides:  “A judge should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.”  As the commentary to Canon 2C explains, “membership of a judge in an organization that practices invidious discrimination gives rise to perceptions that the judge’s impartiality is impaired.”

Not all discrimination is “invidious” discrimination, however, and not all groups are organizations subject to Canon 2C.  As the 1984 ABA report on which the original version of Canon 2C was based explained, the crux is discrimination “on a basis that is odious and in historical context was a stigma or badge of inferiority.”

As an example of organizations that do not practice invidious discrimination, commentary to Canon 2C cites organizations “dedicated to the preservation of religious, ethnic or cultural values of legitimate common interest to its members.”  The Indiana Judicial Qualifications Commission, in an advisory opinion, stated:  “Some groups exist for the legitimate purpose of the perpetuation or celebration of cultures, historical events, and ethnic or religious identities and traditions.  They tend to be inclusive of an entire group, rather than exclusive of certain groups. . . .  Their membership limitations, rather than unfair or stigmatizing, are secondary to but inextricable from that which is being legitimately preserved or celebrated.”  Indiana Advisory Opinion 1-94.  As examples of groups with permissible membership limitations, the Indiana Commission identified the Daughters of the American Revolution, the Knights of Columbus, and the Sons of Italy, while the ABA report cited a Jewish Community Center or Polish-American Society.

The Arizona Judicial Ethics Advisory Committee stated that the victims of invidious discrimination were themselves justified in forming discriminatory organizations only to compensate for disadvantages currently suffered as a result of previous discrimination.  Arizona Advisory Opinion 94-13.  The committee stated that discrimination, for example, by a women’s organization, was legitimate if an organization could demonstrate that:  (1) there is a sex-based disadvantage suffered by its membership; (2) the intention in forming or continuing the organization is to compensate for this disadvantage; (3) the organization’s programs and policies are not based upon and do not perpetuate archaic and stereotypical notions of the abilities or roles of the sexes; and (4) the organization’s single-sex policy and programs directly and substantially help its members compensate for the previous disadvantage.

Canon 2C creates an exemption for groups that are so intimate and private that the U.S. Constitution protects them from government interference.  The Indiana Commission listed a number of factors that distinguish “organizations” from protected groups:  a more or less constant membership; professional, social, recreational, charitable, educational, or civic purposes; selectivity in membership; membership controlled by ballot or some other type of approval; by-laws or other written rules; dues, assessments, or other support; size; advertising or publicity; whether the organization has subjected itself to governmental regulation, such as a liquor license; whether it sells retail goods or services; whether it offers its services or facilities to non-members; and whether it has developed a public identity through civic or charitable activities or participation in public events.  The Commission identified mother-daughter banquets, men’s support groups, college fraternity and sorority alumni groups, girls’ basketball, or single sex fitness facilities as groups that are exempt from Canon 2C and may not even constitute “organizations” within the meaning of the prohibition.

The Committee on Codes of Conduct of the U.S. Judicial Conference (the advisory committee for federal judges) has not issued an opinion interpreting Canon 2C, but it has two opinions on membership in organizations that advance policy positions.  See U.S. Advisory Opinion 40 (1998); U.S. Advisory Opinion 82 (1998).

Posted in Canon 2 | 1 Comment »

Caperton Clarity

Posted by judicialethicsforum on Monday, June, 15, 2009

As we predicted, the Supreme Court has voted five to four in general favor of the Due Process Clause and disfavor of judicial electioneering.  Justice Kennedy authored the opinion concluding that Justice Benjamin harbored a serious, objective “probability of bias” when he refused to recuse himself in a case involving his biggest supporter from his previous — and perhaps future — election.  Justice Benjamin also chose the two replacement jurists for the two justices who did recuse themselves from the case. 

The new (or perhaps more accurately, old-but-newly-fashioned) test has several formulations and considerations.  In essence, the Court held “that Blankenship’s significant and disproportionate influence—coupled with the temporal relationship between the election and the pending case—’offer a possible temptation to the average . . . judge to . . . lead him not to hold the balance nice, clear and true.’” Lavoie (quoting Monroeville in turn quoting Tumey).  Stated slightly differently, there is “a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”  The opinion drew out two elements of the test: (i) election influence and (ii) case status.  The former inquiry “centers on the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.”  The Court clarified that “[w]hether campaign contributions were a necessary and sufficient cause of Benjamin’s victory is not the proper inquiry.”  The Court also focused on the status of any impending or pending case.  The opinion has a heavy undercurrent that no one should get to choose — even with good money — their own judge in a pending matter.  As the Court put it, the ”temporal relationship between the campaign contributions, the justice’s election, and the pendency of the case is also critical.  It was reasonably foreseeable, when the campaign contributions were made, that the pending case would be before the newly elected justice.”  The principle seems simple and sound enough: “Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when—without the consent of the other parties—a man chooses the judge in his own cause.”

Interestingly, the dissenters argued that the decision will create an increase, if not a flood, in ”Caperton claim[s].”  Assuming those claims are meritorious – and judicial elections do provide fertile grounds for such claims  – we should thank this watershed decision and welcome the flood. 

The full text of the opinion, as well as the dissents of Chief Justice Roberts and Justice Scalia, can be found here.   

Posted in Canon 2, Canon 3, Judicial Campaigns, Judicial Disqualification & Recusal, Judicial Selection | Leave a Comment »

Caperton: Answers to the Chief Justice’s “Twenty Questions” Times Two

Posted by kswisher on Monday, June, 15, 2009

In Caperton, Chief Justice Roberts dismissed the majority’s “probability of bias” test, calling it a “cure . . . worse than the disease.”  He believes that the “Court’s new ‘rule’ provides no guidance to judges and litigants about when recusal will be constitutionally required,” which ”will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be,” which in the end, ”will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case.”  His consequence connector seems miscalibrated.  It is exceedingly odd to claim that remedying this “extreme case” — one in which every justice, and the polled public, seem to agree bruises the perception of impartiality – will “erode public confidence in judicial impartiality.”  As an umpire who merely calls balls and strikes, perhaps the Chief Justice needs to get back in the game and out of the policy incubator.  His dissent is notable, but not because of these loose causal connections involving hypothetical challenges, but because it has attracted significant attention through the casting of forty questions — forty questions that the majority’s analysis allegedly cannot answer.  While some commentators have hailed the questions as an indication of infirmities in the majority’s analysis (e.g., “bad facts make bad law”), I respectfully dissent from the dissent; every question, save one or two, can be answered (and the ones that cannot seem to reflect more poorly on the questioner’s drafting than the majority’s analysis).  As a preliminary matter, I note again that an umpire who merely calls balls and strikes should be less concerned with questions not before the court, and indeed, every case could spawn a multitude of forward-looking questions not raised by the facts at hand, but let’s play the game these objections notwithstanding.  Proposed answers are in bold following the applicable questions. 

1. How much money is too much money? What level of contribution or expenditure gives rise to a “probability of bias”?  Without supplying any facts, this question should be answered with the majority’s test: “When a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”  In other words, “Due process requires an objective inquiry into whether the contributor’s influence on the election under all the circumstances ‘would offer a possible temptation to the average . . . judge to . . . lead him not to hold the balance nice, clear and true.’”

2. How do we determine whether a given expenditure is “disproportionate”?  See answer to question 1.  Disproportionate to what?  The majority answered this one as well: “in comparison to the total amount contributed to the campaign, as well as the total amount spent in the election.”

3. Are independent, non-coordinated expenditures treated the same as direct contributions to a candidate’s campaign?  No, the latter support is worse—the influence is more direct.  What about contributions to independent outside groups supporting a candidate?  The question must be initially answered with a question: What “independent outside groups”?  But as general matter, yes, that the contributions were to some “independent outside groups” should be considered and could in the abstract be mitigating. 

4. Does it matter whether the litigant has contributed to other candidates or made large expenditures in connection with other elections?  Probably not (unless the other contributions and/or expenditures were to the judge’s opponent in the same race – a rather unlikely and self-defeating scenario). 

5. Does the amount at issue in the case matter?  It could.  What if this case were an employment dispute with only $10,000 at stake?  It could, if the case was so patently miniscule to the supporter as not to risk offending him/her/it no matter what the disposition.  If the question is cast toward the other side’s perspective, however, the amount in dispute is irrelevant—every litigant is entitled to a fair trial before a fair judge.  What if the plaintiffs only sought non-monetary relief such as an injunction or declaratory judgment?  No, the form of relief sought is generally irrelevant. 

6. Does the analysis change depending on whether the judge whose disqualification is sought sits on a trial court, appeals court, or state supreme court?  No. 

7. How long does the probability of bias last? So long as support matters to holding the office and so long as a strong debt of gratitude lasts.  Does the probability of bias diminish over time as the election recedes?  Probably, but it depends primarily on his next question:  Does it matter whether the judge plans to run for reelection?  Yes.  

8. What if the “disproportionately” large expenditure is made by an industry association, trade union, physicians’ group, or the plaintiffs’ bar?  Same analysis as above.  Must the judge recuse in all cases that affect the association’s interests?  Surely yes with respect to the pending case, but perhaps yes with respect to (unspecified) others as well. Must the judge recuse in all cases in which a party or lawyer is a member of that group?  Not all, but the question does not allow for anything beyond speculation.  Does it matter how much the litigant contributed to the association?  Yes, it matters.    

9. What if the case involves a social or ideological issue rather than a financial one?  Must a judge recuse from cases involving, say, abortion rights if he has received “disproportionate” support from individuals who feel strongly about either side of that issue?  Is the “support” financial?  If yes, then yes.  If the supporter wants to help elect judges who are “tough on crime,” must the judge recuse in all criminal cases?  Of course, we need to know whether the supporter had a particular case pending in which she had a multi-million dollar interest.  If not, then generally no, recusal would not be required in all criminal cases, although an argument can be advanced forcefully that the Constitution is violated when you combine judicial elections with criminal cases, particularly in situations in which the judge’s influential supporters demand toughness on crime and would withhold support in its absence.   

10. What if the candidate draws “disproportionate” support from a particular racial, religious, ethnic, or other group, and the case involves an issue of particular importance to that group?  This question is void for vagueness.   

11. What if the supporter is not a party to the pending or imminent case, but his interests will be affected by the decision?  Does the Court’s analysis apply if the supporter “chooses the judge” not in his case, but in someone else’s?  If the judge would probably be concerned about the effect of the pending case on his supporter (or the supporter would probably be concerned about the judge’s fidelity), then probably yes. 

12. What if the case implicates a regulatory issue that is of great importance to the party making the expenditures, even though he has no direct financial interest in the outcome (e.g., a facial challenge to an agency rulemaking or a suit seeking to limit an agency’s jurisdiction)?  The parenthetical example seems contradictory – there certainly could be a strong financial interest motivating the facial challenge.  But assuming there is not, we would be dealing with more attenuated corrupting forces.    

13. Must the judge’s vote be outcome determinative in order for his non-recusal to constitute a due process violation?  No.   

14. Does the due process analysis consider the underlying merits of the suit?  Does it matter whether the decision is clearly right (or wrong) as a matter of state law?  No (although it could be circumstantial evidence of an actually biased judge). 

15. What if a lower court decision in favor of the supporter is affirmed on the merits on appeal, by a panel with no “debt of gratitude” to the supporter?  Does that “moot” the due process claim?  No.  Constitutionally unbiased judges are required at every level. 

16. What if the judge voted against the supporter in many other cases?  Yes, it could matter, as it could show (among other things) no debt of gratitude or expectation of future support.   

17. What if the judge disagrees with the supporter’s message or tactics? What if the judge expressly disclaims the support of this person?  Yes, that could matter.

18. Should we assume that elected judges feel a “debt of hostility” towards major opponents of their candidacies?  Yes, although the term “hostility” is a bit loaded.  Must the judge recuse in cases involving individuals or groups who spent large amounts of money trying unsuccessfully to defeat him?  Possibly, but the question lacks sufficient circumstances.

19. If there is independent review of a judge’s recusal decision, e.g., by a panel of other judges, does this completely foreclose a due process claim?  Although independent review should be the procedure adopted for all, or virtually all, motions to disqualify, the commendable procedure does not eliminate the due process inquiry.  For example, these “independent” judges could be members of the same court and thus hesitant to disqualify their colleague, friend, and neighbor.  On a more basic level, a state procedure cannot trump the Constitution.

20. Does a debt of gratitude for endorsements by newspapers, interest groups, politicians, or celebrities also give rise to a constitutionally unacceptable probability of bias?  They could.  How would we measure whether such support is disproportionate?   Same or similar methods and tests. 

21. Does close personal friendship between a judge and a party or lawyer now give rise to a probability of bias?  Arguably yes, and as a practical matter, it always has (although it should be noted that many good judges bend over backwards to avoid actual bias in such cases).   

22. Does it matter whether the campaign expenditures come from a party or the party’s attorney?  Yes, if the latter, the influences are more attenuated. If from a lawyer, must the judge recuse in every case involving that attorney?  If the attorney is to the judge as Blankenship was to Justice Benjamin, then yes.   

23. Does what is unconstitutional vary from State to State?  Never.  What if particular States have a history of expensive judicial elections? Whether and in what form the state holds judicial elections matter, but their overall expensiveness likely would not matter.  The test would be the same, just with fewer zeros after the applicable numbers.    

24. Under the majority’s “objective” test, do we analyze the due process issue through the lens of a reasonable person, a reasonable lawyer, or a reasonable judge?  This is perhaps the first “good” question.  In the case, however, all three actors would come to the same conclusion—recusal.  As a general matter and as a matter of substantive recusal law, the actor probably should be the reasonable judge.   

25. What role does causation play in this analysis? The Court sends conflicting signals on this point. The majority asserts that “[w]hether Blankenship’s campaign contributions were a necessary and sufficient cause of Benjamin’s victory is not the proper inquiry.”  But elsewhere in the opinion, the majority considers “the apparent effect such contribution had on the outcome of the election,” ante, at 14, and whether the litigant has been able to “choos[e] the judge in his own cause,” ante, at 16.  Yes, causation matters, but it need not be the sole, isolated cause of victory.  If causation is a pertinent factor, how do we know whether the contribution or expenditure had any effect on the outcome of the election?  It should not be terribly difficult—election success has been analyzed (often correctly) for a long time.  Moreover, as the majority noted, the task becomes easier once we acknowledge that we are dealing with probabilities, not actualities.  What if the judge won in a landslide?  Yes, that matters.  What if the judge won primarily because of his opponent’s missteps?  Yes, that matters as well.   

26. Is the due process analysis less probing for incumbent judges—who typically have a great advantage in elections—than for challengers?  No, it is not less probing, but such a “great advantage” should be considered wherever actually applicable. 

27. How final must the pending case be with respect to the contributor’s interest? What if, for example, the only issue on appeal is whether the court should certify a class of plaintiffs? Is recusal required just as if the issue in the pending case were ultimate liability?  Absolutely.

28. Which cases are implicated by this doctrine? Must the case be pending at the time of the election?  No, it must be reasonably likely to be brought.  Reasonably likely to be brought?  What about an important but unanticipated case filed shortly after the election?  If it is truly “unanticipated,” then the litigant certainly did not “choose” the judge in her own case.  This fact alone, however, would not be dispositive.   

29. When do we impute a probability of bias from one party to another?  Does a contribution from a corporation get imputed to its executives, and vice-versa?  By casting the legal fictions aside, the answer will become clear or clearer.   And obviously, in light of the Court’s holding, imputation can occur from a chief executive to the corporation.  Does a contribution or expenditure by one family member get imputed to other family members?  Probably, but not necessarily.   

30. What if the election is nonpartisan? It could matter, but without facts, it is unclear.  What if the election is just a yes-or-no vote about whether to retain an incumbent?  For anyone familiar with retention elections, this fact definitely matters.  For one, almost all judges up for retention are retained.  Moreover, it is much harder to “choose” your judge (save your one vote) at the retention election stage – it is much easier (but still difficult) to oust a judge.  

31. What type of support is disqualifying? What if the supporter’s expenditures are used to fund voter registration or get-out-the-vote efforts rather than television advertisements?  This twist could matter.  Among other factors, one would need to look at the causal link between these activities and electoral success and the expectation of future support.   

32. Are contributions or expenditures in connection with a primary aggregated with those in the general election?  Yes.  What if the contributor supported a different candidate in the primary? Does that dilute the debt of gratitude?  Perhaps slightly. 

33. What procedures must be followed to challenge a state judge’s failure to recuse? May Caperton claims only be raised on direct review?  A strong candidate for an interlocutory appeal exception.  Or may such claims also be brought in federal district court under 42 U. S. C. §1983, which allows a person deprived of a federal right by a state official to sue for damages?  Perhaps, but it seems unlikely that pecuniary “damages” would be permitted.  If §1983 claims are available, who are the proper defendants? The judge? Yes.  The whole court?  Probably not.  The clerk of court?  Probably not.

34. What about state-court cases that are already closed? Can the losing parties in those cases now seek collateral relief in federal district court under §1983?  Perhaps.  What statutes of limitation should be applied to such suits?  The “statute of limitations” should not be an immediate issue—as Tuesday would have been the first day on which it should start to run.   

35. What is the proper remedy? After a successful Caperton motion, must the parties start from scratch before the lower courts?  Yes (unless the now-disqualified judge sat at the appellate level).  Is any part of the lower court judgment retained?  No. 

36. Does a litigant waive his due process claim if he waits until after decision to raise it? Probably (particularly in this instance—when the constitutional-rights waiver is not inadvertent, but instead a tactical decision that could lead to, among other things, wasted judicial proceedings).  Or would the claim only be ripe after decision, when the judge’s actions or vote suggest a probability of bias?  No. 

37. Are the parties entitled to discovery with respect to the judge’s recusal decision?  They should be so entitled at least with respect to facially meritorious claims.

38. If a judge erroneously fails to recuse, do we apply harmless-error review?  This is the second or third good question out of forty.  Just a prediction, but courts will probably say “no.”  [Again, however, it is a good question, and I personally have flip-flopped on the answer.] 

39. Does the judge get to respond to the allegation that he is probably biased, or is his reputation solely in the hands of the parties to the case?  The judge gets to respond in his ruling on the disqualification motion (or sua sponte in his recusal ruling).  

40. What if the parties settle a Caperton claim as part of a broader settlement of the case? Does that leave the judge with no way to salvage his reputation?  Once the case is no longer pending, the judge could speak about the merits of the Caperton claim.  The concern misses the mark a bit: One of the reasons these “perception”- or “appearance”-based tests have arisen is to avoid the ugly impact of implying, calling, and proving the judge actually biased.  The Caperton-disqualified judge can still say – as has Justice Benjamin following the Supreme Court’s decision – that he was not actually biased.

* * *

Obviously, the answers above are not gospel, and by comment or otherwise, other answers are encouraged.  

Posted in Canon 2, Canon 3, Judicial Campaigns, Judicial Disqualification & Recusal, Judicial Selection | 1 Comment »

New Scholarship: Harrison and Swisher on Judges’ Comments to the Press

Posted by judicialethicsforum on Sunday, May, 10, 2009

Mark Harrison and Keith Swisher just published a lengthy (perhaps the lengthiest) article analyzing extrajudicial comments on pending cases.  Here is the abstract:

This work explores the ethical boundaries of judges speaking to the media and others concerning their impending or pending cases. We ultimately take a rather dim view of the practice, with particular scrutiny applied to instances in which judges defend or explain their rulings in the press in response to criticism.

The primary problem is that by commenting on the merits of pending cases over which the judge is presiding, she is elevating her personal interests (most commonly, either self-aggrandizement or self-defense) over the interests of the parties or even the more abstract interests of justice. Another problem with these extrajudicial comments in practice is that they result from, or at least are influenced by, ex parte contacts with the media — contacts that are unknown to (or at least practically uncorrectable by) the parties. Furthermore, a regime of extrajudicial speech fails properly to incentivize judges to explain their official actions where it counts, namely, in their rulings and opinions, not to the media or other external outlets. Finally, and perhaps most importantly, because the likelihood of disqualification is so high when a judge extrajudicially comments on anything close to the merits, the outspoken judge regrettably buys herself a one-way ticket off of the case. Therefore, unless the commenting judge has some (better) proof that the comment will benefit (or mitigate a detriment to) some legitimate cause other than herself, she generally should leave the extrajudicial commenting to third parties.

Mark I. Harrison & Keith Swisher, When Judges Should Be Seen, Not Heard: Extrajudicial Comments Concerning Pending Cases and the Controversial Self-Defense Exception in the New Code of Judicial Conduct, 64 N.Y.U. Ann. Surv. Am. L. 559 (2009).  A link to the piece can be found in Articles as well. 

Posted in Canon 2, Canon 3 | Leave a Comment »

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