Posted by judicialethicsforum on Thursday, February, 21, 2013
The ABA Standing Committee on Ethics and Professional Responsibility has just issued a new formal opinion on a timely judicial ethics topic. The Ethics Committee has not addressed judicial ethics in its formal opinions for over four years (indeed, in the last thirty years, it has done so only three times; for the previous opinions, see here). The next question almost automatically becomes — to what issue does the Model Code owe this attention?
Answer: Judges and Social Media. For example, you may recall the controversial Florida judicial ethics opinion stating that judges cannot “friend” (on Facebook) lawyers who may appear before them; you may have seen elective judges (and their campaign committees) using social media to promote themselves; or you may have seen or heard about judges publicly endorsing candidates for public office through social media. The brand new opinion speaks to all three of these examples (and a few others). In light of the many judicial ethics considerations when judges communicate publicly (whether through social media or older methods), however, the opinion understandably offers very few bright-line rules. The opinion does, however, generally take a pro-social media tone:
Judicious use of ESM can benefit judges in both their personal and professional lives. As their use of this technology increases, judges can take advantage of its utility and potential as a valuable tool for public outreach. When used with proper care, judges’ use of ESM does not necessarily compromise their duties under the Model Code any more than use of traditional and less public forms of social connection such as U.S. Mail, telephone, email or texting.
Posted by judicialethicsforum on Wednesday, September, 26, 2012
In one of the most noteworthy and actually entertaining judicial campaign ads, the cast of The West Wing reunited to support Bridget Mary McCormack for the Michigan Supreme Court. The ad also offers an important announcement that transcends McCormack’s campaign: because voters frequently and reflexively vote straight ”R” or “D” (which is one of the reasons why the concept of popular judicial election can be problematic), those voters are, perhaps inadvertently, not voting at all on the non-partisan portion of their ballots. Many states, including Michigan, use non-partisan judicial elections. Here is the ad:
Posted by judicialethicsforum on Wednesday, September, 26, 2012
The ABA’s standing committees on ethics and discipline are considering changes to the disqualification rule (2.11) of the Model Code of Judicial Conduct in light of Caperton and the problems of judicial campaign contributions and expenditures. The possible revisions are pursuant to Resolution 107, which reads in relevant part:
That the Standing Committee on Ethics and Professional Responsibility and the Standing Committee on Professional Discipline should proceed on an expedited basis to consider what amendments, if any, should be made to the ABA Model Code of Judicial Conduct or to the ABA Model Rules of Professional Conduct to provide necessary additional guidance to the states on disclosure requirements and standards for judicial disqualification.
The committees have released their second draft of the proposed rule change, which omits several restrictions proposed in the first draft. In response, Cindy Gray and the American Judicature Society proposed a stronger and more comprehensive rule in several respects. That rule can be found on pages 18-19 of this document, which also contains the other commentary on the second draft. The committees have kindly decided to post another draft for comment before the proposed rule goes to the House of Delegates next year.
UPDATE: The third draft is available here. Comments are due by February 22, 2013.
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.
Professor Ron Rotunda’s most recent article, Constitutionalizing Judicial Ethics: Judicial Elections after Republican Party of Minnesota v. White, Caperton, and Citizens United, can be found here, and the abstract follows:
Recent times have witnessed strong lobbying efforts to move states away from electing judges to appointing them. Opponents of judicial elections repeatedly argue that the general public does not want judges who are bought by contributors. Of course, voters do not want those judges, yet the electorate repeatedly rejects efforts to move away from an elected judiciary.
When voters do choose judges, the conventional wisdom assures us that the results will be less partisan if the judges run in nonpartisan elections – where candidates run but do not disclose their political affiliation. However, empirical evidence does not support this frequent claim. Studies repeatedly show that judges elected in partisan elections are substantially more likely to be independent than judges selected in nonpartisan elections.
People who bemoan judicial elections often attack two U.S. Supreme Court decisions that appear to politicize the judiciary. One is Republican Party v. White (2002), which recognized the free speech rights of judicial candidates. They similarly criticize Citizens United v. Federal Election Commission (2010) as a pro-business decision that recognizes first amendment rights of corporations or individuals to spend money to engage in their political speech favoring their candidates. Yet, White simply evens the playing field by overturning restrictions that were really a form of incumbent-protection legislation. So too, the controversy surrounding Citizens United is misplaced. It does not favor business at the expense of unions. Instead it gives all entities, including unions and individuals, free speech rights that the government cannot restrict, which is why the ACLU supported the position of the petitioner and opposed the Federal Election Commission’s regulation. Still others view Caperton v. A.T. Massey Coal Company, Inc. (2009) as a case that will force judges to disqualify themselves if a party is related to an independent group that had supported the judicial candidate. It is too soon to judge the effect of Caperton, but there are plenty of indications in the five-person majority that the case has little growth.
It i[s] inevitable that money will flow into political campaigns: indeed, economic studies wonder why the major players do not invest more in these campaigns, given that so much money rides on the outcome. As long as politicians and judges decide billion dollar issues, there will be multi-million dollar campaigns. Fortunately, the empirical evidence to support the assertion that those who pays the money gets the judge they wants is decidedly mixed.
The Supreme Court just upheld Nevada’s Ethics in Government Law, which requires (in short) that public officials refrain from voting on matters in which they have personal interests. In this case, a city council member voted to approve a casino despite the fact that his campaign manager and close friend had a financial interest in the casino’s development. The Nevada Ethics Commission censured the council member, and in response, he brought a First Amendment challenge, claiming (among other things) that his vote constituted protected speech. Rejecting the challenge, the Court concluded (again in short) that recusal rules in these circumstances do not (and did not ever) violate the First Amendment. The Court was unanimous (as to the result, not as to the reasoning).
The resulting opinions are relevant and indeed crucial for at least two reasons: (1) the seven-member opinion of the Court strongly validates the historical pedigree and constitutional legitimacy of American recusal laws, both legislative and judicial; and (2) both Justice Scalia (for seven justices) and Justice Kennedy (for his own pivotal self) noted that recusal rules may, quite understandably, be crafted more rigidly for the judiciary than for the legislature.
In particular, Justice Scalia acknowledged that ”[t]here are of course differences between a legislator’s vote and a judge’s, and thus between legislative and judicial recusal rules; nevertheless, there do not appear to have been any serious challenges to judicial recusal statutes as having unconstitutionally restricted judges’ First Amendment rights.” Op. at 6 & n.3 (distinguishing White). Justice Kennedy noted in his concurrence that “[t]he Court has held that due process may require recusal in the context of certain judicial determinations, see Capertonv. A. T. Massey Coal Co., 556 U. S. ___ (2009); but as [my concurrence] indicates, it is not at all clear that a statute of this breadth can be enacted to extend principles of judicial impartiality to a quite different context [i.e., the legislative and perhaps regulatory context]. The differences between the role of political bodies in formulating and enforcing public policy, on the one hand, and the role of courts in adjudicating individual disputes according to law, on the other, . . . may call for a different understanding of the responsibilities attendant upon holders of those respective offices and of the legitimate restrictions that may be imposed upon them.”
Posted by judicialethicsforum on Monday, February, 28, 2011
In a recent move that has attracted much press, the New York State Administrative Board of the Courts has proposed a rule that would require attorneys who donate $2,500 and law firms that donate $3,500 to any judge be barred from appearing before that judge for a period of two years. This proposed rule is more flexible than a 2003 task force proposal, which recommended a five-year ban on attorneys who had donated over $500 to any judge. That proposed rule was said to be too onerous in the many less-populated areas, which often had only one full-time judge.
David Pozen has just married the practice of judicial elections to the popular theory of popular constitutionalism. My first thought: If he is right that judicial elections are really the best “vehicle for achieving popular constitutionalism [by being] genuinely empowering without being anarchic, accessible to the masses yet mediated by professionals, [and] transformative yet realistic,” then I must not be a popular constitutionalist. But his balanced and insightful analysis convinced me to read on. Here is the abstract:
One of the most important recent developments in American legal theory is the burgeoning interest in “popular constitutionalism.” One of the most important features of the American legal system is the selection of state judges—judges who resolve thousands of state and federal constitutional questions each year—by popular election. Although a large literature addresses each of these subjects, scholarship has rarely bridged the two. Hardly anyone has evaluated judicial elections in light of popular constitutionalism, or vice versa. This Article undertakes that thought experiment. Conceptualizing judicial elections as instruments of popular constitutionalism, the Article aims to show, can enrich our understanding of both. The normative theory of popular constitutionalism can ground a powerful new set of arguments for and against electing judges, while an investigation into the states’ experience with elective judiciaries can help clarify a number of lacunae in the theory, as well as a number of ways in which its logic may prove self-undermining. The thought experiment may also be of broader interest. In elaborating the linkages between judicial elections and popular constitutionalism, the Article aims to shed light more generally on some underexplored connections (and tensions) among theories and practices of constitutional construction, democratic representation, jurisprudence, and the state courts.
I have posted a draft of my most recent article on SSRN. This one is on attorneys who contribute to judges’ election campaigns and then appear before those judges, and the Georgetown Journal of Legal Ethics will publish it in the winter or early spring. Judicial ethics takes a backseat (still a seat), but there should still be enough of it and judicial selection to interest readers, I presume. The abstract follows:
Lawyers as johns, and judges as prostitutes? Across the United States, attorneys (“johns,” as the analogy goes) are giving campaign money to judges (“prostitutes”) and then asking those judges for legal favors in the form of rulings for themselves and their clients. Despite its pervasiveness, this practice has been rarely mentioned, much less theorized, from the attorneys’ ethical point of view. With the surge of money into judicial elections (e.g., Citizens United v. FEC), and the Supreme Court’s renewed interest in protecting justice from the corrupting effects of campaign money (e.g., Caperton v. A.T. Massey Coal Co.), these conflicting currents and others will force the practice to grow both in its pervasiveness and in its propensity to debase our commitment to actual justice and the appearance of justice. This Article takes, in essence, the first comprehensive look at whether attorneys’ campaign contributions influence judicial behavior and our confidence in the justice system (they do), whether contributions have untoward systemic effects (again, they do), and most fundamentally, whether attorneys act ethically when they contribute to judges before whom they appear (they do not, all else being equal).
The article can be downloaded for free at this link, which can also be found in Articles.
Posted by monroefreedman on Monday, November, 29, 2010
The new (4th) edition of Understanding Lawyers’ Ethics has a 40-page chapter on Judges’ Ethics. Sections include (among others):
THE PRACTICAL ADVANTAGES OF AN APPEARANCES RULE
SOME IMPLIED EXCEPTIONS TO DISQUALIFICATION
[1] The Judicial Source Exception
[2] Disqualification Based on a Judge’s Prior Commitment to Issues or Causes
[3] Disqualification Based on the Judge’s Religion, Race, or Gender
[4] Disqualification Based on an Implied Bias for or Against a Class of Litigants
[5] The Rule of Necessity
[6] Friendships Between Judges and Lawyers Appearing Before Them
ELECTED JUDGES AND DENIAL OF DUE PROCESS
JUSTICE SCALIA’S DENIAL OF RECUSAL IN THE CHENEY
CASE
JUSTICE SCALIA’S FAILURE TO RECUSE HIMSELF IN
BUSH v. GORE
Posted by judicialethicsforum on Sunday, November, 21, 2010
An instant classic, The New Politics of Judicial Elections, 2000-2009: Decade of Change, has been released for several months now. The study charts a decade of degeneration in judicial elections in the United States. Quite deservingly, the study has already received significant publicity (and it even comes complete with a foreword by Justice Sandra Day O’Connor), but we would be remiss not to mention it here as well.
Posted by judicialethicsforum on Saturday, July, 3, 2010
The growing rift between liberal and conservative justices on the Wisconsin Supreme Court has once again caused indecision. This time, the issue was whether Justice Gableman should be disciplined for the misleading advertisement that his campaign committee aired against former Justice Butler. Butler had long ago been a public defender, represented a criminal defendant on appeal, won at the court of appeals level, but lost at the supreme court level. The client then served his time, but regrettably committed another serious offense after he was released from prison. From these facts, the campaign committee somehow crafted the following television attack ad, which Justice Gableman reviewed and approved: “Louis Butler worked to put criminals on the street. Like Reuben Lee Mitchell, who raped an 11-year-old girl with learning disabilities. Butler found a loophole. Mitchell went on to molest another child.” [See the full ad here.]
In short, the three liberal justices found disciplinable conduct in the ad’s misleading speech (opinion, here); the three conservative justices found the ad “distasteful” but not disciplinable (opinion, here). Now, the judicial conduct authorities do not know what to do with this tie.
This same three-three split occurred recently in the much-followed case of State v. Allen, in which a criminal defendant moved to disqualify Gableman (in part for the remarks above). The resulting deadlock meant that the motion to disqualify was effectively denied. And as a final example, the split essentially caused the Wisconsin Supreme Court’s anomalous Caperton response (or more accurately, nonresponse); see earlier post for details.
Posted by judicialethicsforum on Monday, June, 21, 2010
The Seventh Circuit weighed in last week on three common judicial ethics rules governing campaigns. Readers may recall that the Seventh Circuit is not shy about shaking things up in this area. [See Buckley v. Ill. Jud. Inquiry Bd., 997 F.2d 224, 230 (7th Cir. 1993) (striking down announce clause well before White came along).] To misappropriate Monroe Freedman’s famous term from another context, this new opinion is the latest in the growing “trilemma” of reconciling the First Amendment, Judicial Elections, and Impartiality (including its due process element). The rules at issue this time around had prohibited three campaign practices: (1) joining a party; (2) endorsing partisan candidates; and (3) directly soliciting campaign contributions. According to the court, this is how each rule fares, respectively: (1) unconstitutional; (2) constitutional; and (3) constitutional. The full opinion, with dissent, can be found here (Siefert v. Alexander). Readers may recall that the district court in early 2009 struck down all three prohibitions under First Amendment strict scrutiny analysis.
Posted by judicialethicsforum on Saturday, May, 22, 2010
Professor James Sample (Hofstra), formerly of Brennan Center fame, has just completed two fine works on Caperton and state court responses. Here is the abstract to the first, which provides a good current-events survey of post-Caperton developments and can be found in this year’s Joint American Judicature Society-Drake Law Review Symposium:
This Article considers the significant state court reform developments in the year following the Supreme Court’s landmark decision in Caperton v. A.T. Massey Coal Co., as well as ancillary federal developments, including renewed congressional interest in judicial disqualification. Picking up on the author’s view that “paradoxically for a decision overturning a state justice’s non-recusal, the majority’s approach is a model of cooperative federalism,” the Article focuses primarily on the initial developments pertaining to money in the courts in Wisconsin, Michigan, and West Virginia in the short period since the decision. The Article notes that while recusal practices have certainly been one focal point of developments in the states, Caperton has also provided a significant boost to judicial public financing. After considering tangible developments in the three identified states, the Article briefly points to more nascent judicial independence efforts in other states, in which Caperton connections are less direct, but where the case is nonetheless figuring prominently in rejuvenated efforts to modify judicial selection practices. The Article asserts that, while not all of the post-Caperton developments have improved the judicial impartiality landscape, on balance, the decision is already producing meaningful improvements in protecting the courts from the influence of money.
James J. Sample, Court Reform Enters the Post-Caperton Era, 58 Drake L. Rev. 787 (2010). Featured in Syracuse Law Review’s Caperton Symposium (which, by the way, contains several other good reads), Professor Sample’s second article makes the provocative claim, among others, that Caperton is a model of federalism. James J. Sample, Caperton: Correct Today, Compelling Tomorrow, 60 Syracuse L. Rev. 293 (2010).
Posted by judicialethicsforum on Monday, November, 30, 2009
Prof. Keith Swisher has posted a draft of his forthcoming article on pro-prosecution judges, judicial elections, and disqualification. Here is the abstract:
In this Article, I take the most extensive look to date at pro-prosecution judges and ultimately advance the following, slightly scandalous claim: Particularly in our post-Caperton, political-realist world, “tough on crime” elective judges should recuse themselves from all criminal cases. The contextual parts to this claim are, in the main, a threefold description: (i) the “groundbreaking” Caperton v. A.T. Massey Coal decision, its predecessors, and its progeny; (ii) the judicial ethics of disqualification; and (iii) empirical and anecdotal evidence of pro-prosecution (commonly called “tough on crime”) campaigns and attendant electoral pressures. Building on this description and the work of empiricists, we bridge the gap between these tough-on-crime campaign promises and subsequent tough-on-crime adjudications. And in the final analysis, the thesis — namely, that tough-on-crime judges should recuse themselves in most, and probably all, criminal cases in light of personal and systemic biases — is corroborated not just by Supreme Court reasoning and language, but even more importantly (at least from my perspective as an ethics professor), by the rules of judicial ethics. Thus, pro-prosecution judges and their not-too-sophisticated message — “me tough on crime, you soft on crime” — should cease and desist or be ceased and desisted.
Parts. Part I briefly describes elective judicial selection systems and thoroughly describes “tough-on-crime” judges, their messages, and their motivations. Part II, the core of the analysis, runs tough-on-crime judges through the constitutional, ethical, and other-legal frameworks of disqualification. All of these frameworks — some four or five different legal and ethical barriers, depending on one’s jurisprudential view — ultimately lead to the same place, mandatory disqualification. Part III critically appraises elective systems, the theoretical and economical costs that those systems impose on judges and litigants, and the alternatives, including broadly or narrowly targeted disqualification, public financing, and forced silence. By the Conclusion, the analysis has pointed strongly toward a broad-based, mandatory-disqualification remedy.
Posted by judicialethicsforum on Tuesday, November, 24, 2009
The Wisconsin Supreme Court recently became the first state court to take post-Caperton, rule-based action. (Michigan recently became the second; for more information, click here.) Putting the merits to the side — ignoring them altogether, actually — the Wisconsin Supreme Court should be commended for taking expeditious action following the Supreme Court’s groundbreaking Caperton decision. The praise ends there, unfortunately. In a puzzling, recalcitrant move, the court adopted two rule amendments that appear to ignore both Caperton and its interpretation of the Due Process Clause. Combining the amendments, they essentially state that contributions or expenditures — from any source and irrespective of amount — to elective judges in Wisconsin do not alone warrant recusal/disqualification. That is not a brief restatement, but rather, a nearly exhaustive statement of the amendments (to verify, click here and here for the full text of the adopted amendments). A state supreme court rule purporting to limit the reach of Caperton and constitutional due process seems anomalous; how such amendments are anything but scoffing and heel-digging remains to be explained. Interestingly, the vote of the court was a deep split of 4-3, with Justice Gableman in the majority.
One point of caution, at this early stage, is that we are reading from mere tealeaves. The Wisconsin Supreme Court has not as yet published its orders or issued a press release. One can hope that the court will explicate in what ways, if any, these amendments constitute learned contributions to the law of disqualification.
Posted by graycynthia on Wednesday, August, 5, 2009
The Drake Law Review and the American Judicature Society are pleased to announce the Seventh Annual American Judicature Society-Drake Law Review Symposium Issue: The State of Recusal: Judicial Disqualification, Due Process, and the Public’s Post-Caperton Perception of the Integrity of the Justice System.
The United States Supreme Court’s recent decision in Caperton v. A.T. Massey Coal Co. settled that due process requires an objective analysis of the question of judicial impartiality. However, like most Supreme Court decisions, it raised as many questions as it answered. Most obviously, the Caperton decision raised questions about the effects of judicial campaign spending on judges’ perceived and actual impartiality. In addition, Caperton presents questions about the role of federal courts in ensuring impartiality in state courts. And at the deepest level, the debate about judicial disqualification raises questions about due process guarantees in the context of elected judiciaries. The debate over judicial disqualification should be broadened in light of these issues. The Drake Law Review is seeking articles that address issues implicated by judicial disqualification, including, but not limited to, the following considerations:
• The First Amendment implications of the decision in Caperton;
• How state courts should implement the holding in Caperton in their codes of judicial conduct;
• The answers to Chief Justice Roberts’s 40 questions;
• The balance between the various competing values implicated by judicial disqualification;
• Issues relating to standards and procedures for judicial disqualification;
• The unique challenges relating to judicial disqualification in small jurisdictions and on appellate courts;
• The effect of judicial disqualification on the popular legitimacy of the judicial system.
Articles from all backgrounds will be considered, from academic evaluations of the law to empirical studies on judicial disqualification rules and procedures. The Drake Law Review invites you to participate in this collaboration by submitting an article to be published in this highly regarded issue of the Review. If you would like to participate in this unique collaborative effort, please contact the Editor in Chief of the Drake Law Review as soon as possible. All general topic proposals must be submitted by December 4, 2009. The deadline for completed articles is January 29, 2010. Final decisions regarding publication are made by the Drake Law Review. Drake Law Review, 2507 University Avenue Des Moines, Iowa 50311 Phone: (515) 271-2930; Fax: (515) 271-4926; email: law.review@drake.edu; http://students.law.drake.edu/lawreview
In addition to other repercussions, the U.S. Supreme Court’s June decision in Caperton v. A.T. Massey Energy, 129 S. Ct. 2252 (2009), may help the states defend restrictions on political and campaign activity in their codes of judicial conduct. Since the Court’s 2002 decision, in Republican Party of Minnesota v. White, 536 U.S. 765 (2002), numerous First Amendment lawsuits have been filed in federal courts, usually by right-to-life organizations, and many (although not all) have succeeded in overturning restrictions on what judges and judicial candidates can say, how they can raise funds, and whether they can be involved in other candidates’ campaign and partisan politics. (For a discussion of the caselaw after White, click here.)
In the first post-Caperton decision, however, the U.S. District Court for the Northern District of Indianaupheld the constitutionality of canons in Indiana’s revised code of judicial conduct that prohibit judges and judicial candidates from making pledges, promises, and commitments; require disqualification based on a prior commitment; prohibit judges and judicial candidates from acting as a leader or holding office in or making speeches on behalf of a political organization; and prohibit judges and judicial candidates from soliciting funds for, paying an assessment to, or making a contribution to a political organization or a candidate for public office and personally soliciting or accepting campaign contributions other than through a campaign committee. Bauer v. Shepard, Opinion and Order (July 7, 2009). The court relied in part on Caperton.
Although the parties disagree about what bearing the Supreme Court’s decision in Caperton should have on this Court’s ruling in this case—the Supreme Court did after all repeatedly note the exceptional, extraordinary, and extreme facts of that case—Caperton does illustrate that judicial elections and judicial conduct (including the issue of recusal) can have important due process of law implications. Additionally, the Caperton Court noted that the state codes of judicial conduct “serve to maintain the integrity of the judiciary and the rule of law,” and it quoted approvingly the following statement from the amicus curiae brief filed by the Conference of Chief Justices: “the codes are ‘[t]he principal safeguard against judicial campaign abuses’ that threaten to imperil ‘public confidence in the fairness and integrity of the nation’s elected judges.’” . . . For the Court, a state’s interest in judicial integrity is “vital” and “of the highest order”: “Courts, in our system, elaborate principles of law in the course of resolving disputes. The power and the prerogative of a court to perform this function rest, in the end, upon the respect accorded to its judgments. The citizen’s respect for judgments depends in turn upon the issuing court’s absolute probity. Judicial integrity is, in consequence, a state interest of the highest order.”
The court also relied extensively on the preamble and comments to the Indiana code, which were based on the ABA 2007 Model Code of Judicial Conduct (the Indiana preamble is identical to the model; the comments are not although they are similar).
Although the litigation such as that necessary to resolve the Senate race between Al Franken and Norm Coleman is fortunately extremely rare, it demonstrates the importance of having a non-partisan judiciary available to resolve such conflicts. Fortunately for Minnesotans, their legislature has declared that judicial elections should be non-partisan, and the Minnesota Supreme Court has implemented that decision by adopting a code of judicial conduct that prohibits judges and judicial candidates from endorsing political candidates and engaging in other partisan activity. Therefore, none of the justices on the Minnesota Supreme Court had to recuse themselves because they had endorsed Franken or Coleman (although two had to recuse because they were on the state-wide canvassing board), and the majority of the highest court in the state was available to do the job for which they were elected – decide the most important legal issues for the people of the state. Fortunately, a federal court recently rejected a challenge to the Minnesota endorsement clause so that, if a similar situation arises in the future, the same protections will apply. Wersal v. Sexton, 607 F. Supp. 2d 1012 (District of Minnesota 2009). The plaintiff in that case had argued that disqualification would protect judicial impartiality, but the court disagreed, focusing on the un-workability of recusal not in the rare case but “when a judge endorses an individual who is elected to a position where he or she is frequently a litigant.”
Wisconsin is not so fortunate, as a federal court there overturned the endorsement clause and other restrictions on partisan political activity even though judicial elections are supposed to be non-partisan by law. Siefert v. Alexander, 597 F. Supp. 2d 860 (Western District of Wisconsin 2009). The court believed the “gag order” was not “fooling anyone” because “many if not most judicial candidates have political lives before their judicial campaigns and often are easily identified as ‘Republican’ or ‘Democrat’ even if they do not explicitly run as such.” What the court fails to recognize is that by requiring judicial candidates to eschew party labels during the campaign, the code ensures that judicial candidates demonstrate their willingness to take on a new role and reject partisan loyalties and embrace judicial independence once on the bench.
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.
