The Judicial Ethics Forum (JEF)

An Academic Discussion of Judicial Ethics, Discipline & Disqualification

Archive for the ‘Judicial Disqualification & Recusal’ Category

New Guidance for Judges and Judicial Employees Using Social Media

Posted by judicialethicsforum on Tuesday, June, 24, 2014

In addition to the recent ABA Ethics Opinion taking a generally pro-social-media tone, two new judicial ethics advisory opinions have been issued for federal and state judges.

First, for federal judges, the Committee on Codes of Conduct issued Opinion 112 in March.  It generally condemns various behavior on social media (e.g., “maintaining a blog that expresses opinions on topics that are both politically sensitive and currently active, and which could potentially come before the [judge's or judicial] employee’s own court,” “any use of a judge’s or judicial employee’s court email address to engage in social media or professional social networking,” and “‘liking’ or becoming a ‘fan’ of a political candidate or movement”).  The full Opinion 112 can be found here.  The link is also helpful because it contains the full text of the Committee’s opinions from the past five years.

Second, the Arizona Judicial Ethics Advisory Committee issued Opinion 14-01 in May.  It examines in a fair amount of detail the ethical issues arising from LinkedIn and Facebook (among other platforms) for both judges and judicial employees.  For example, it concludes that both judges and judicial employees generally should not recommend (or arguably endorse) attorneys on LinkedIn who appear in the court.  Turning to Facebook, it concludes that being a Facebook friend with a lawyer does not necessitate recusal in every case involving that lawyer, but the relationship might need to be disclosed to the parties, and if the judge is actually biased or if the judge’s impartiality might reasonably be questioned, simply “defriending” the lawyer will not fix the disqualification problem.  Similar to the federal opinion above, this state opinion also concludes that “a judge may not be a ‘friend’ of or ‘like’ [a legislator's] or another judge’s reelection campaign Facebook page because Rule 4.1(A)(3) prohibits judges from endorsing another candidate for any public office.”  Click here for the full opinion.  By the way, for an interesting Facebook-based disqualification case, see Chace v. Loisel, 2014 WL 258620 (Fl. Dist. Ct. App. Jan. 24, 2014).  There, the judge had tried to friend a litigant on Facebook, and the litigant essentially rejected the request based on advice from the litigant’s attorney.  The litigant claimed that the judge thereafter issued retaliatory rulings against her because she had rejected the judge’s friend request, and the litigant moved for disqualification.  The appeals court concluded that these facts were facially sufficient to warrant disqualification.

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New Judicial Ethics Scholarship: McKoski on Improving Disqualification Law

Posted by judicialethicsforum on Tuesday, June, 24, 2014

Judge/Prof. Ray McKoski has just finished an interesting piece arguing against the common disqualification test (i.e., when the judge’s impartiality might reasonably be questioned) and arguing for preemptory challenges in its place.  The abstract and link follow:

All state and federal courts require the disqualification of a judge when the judge’s “impartiality might reasonably be questioned.” Created by the ABA in 1972, this disqualification standard was intended to help restore public confidence in the judiciary by instilling uniformity and predictability in the recusal process. Unfortunately, the “might reasonably be questioned” test has been an utter failure. It has not decreased the arbitrariness or increased the predictability of recusal decisions. On the contrary, the vague and unworkable standard (1) prevents a disqualification jurisprudence from developing, (2) renders it impossible for ethics advisory committees to provide meaningful advice to judges on recusal issues, and (3) provides a vehicle upon which litigants and non-litigants can shamelessly attack a judge’s impartiality on the basis of the judge’s religion, race, ethnicity, sex, or sexual orientation.

This Article proposes a new disqualification regime for trial court judges. The proposal suggests replacing the “might reasonably be questioned” test with the peremptory removal of a trial judge upon the perfunctory request of a party. After exercising the right to an automatic change of judge, a litigant could challenge the successor judge if the judge is disqualified under a statute or court rule. Finally, the successor judge could be challenged under the Due Process Clause when the circumstances create a serious risk of partiality on the part of the judge. A peremptory challenge system, coupled with a list of disqualifying factors, and the right to challenge a judge’s impartiality on due process grounds, will provide a superior disqualification process.

Raymond J. McKoski, Disqualifying Judges When Their Impartiality Might Reasonably Be Questioned: Moving Beyond a Failed Standard, 56 Ariz. L. Rev. 411 (2014).

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Pennsylvania Adopts a New Code of Judicial Conduct

Posted by judicialethicsforum on Friday, January, 24, 2014

As reported in the press (with an interesting account of the state judiciary’s setbacks over the past few years), Pennsylvania has recently adopted a new Code of Judicial Conduct in the image of the 2007 Model Code.  Among other notable features, the new PA Code now prohibits service on corporate, and to a lesser extent non-profit, boards.  The Code also addresses party and attorney judicial campaign contributions, requiring judicial recusal whenever:

The judge knows or learns that a party, a party’s lawyer, or the law firm of a party’s lawyer has made a direct or indirect contribution(s) to the judge’s campaign in an amount that would raise a reasonable concern about the fairness or impartiality of the judge’s consideration of a case involving the party, the party’s lawyer, or the law firm of the party’s lawyer. In doing so, the judge should consider the public perception regarding such contributions and their effect on the judge’s ability to be fair and impartial. There shall be a rebuttable presumption that recusal or disqualification is not warranted when a contribution or reimbursement for transportation, lodging, hospitality or other expenses is equal to or less than the amount required to be reported as a gift on a judge’s Statement of Financial Interest.

The PA Code of Judicial Conduct can be viewed here.

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

The Supreme Court Needed an Ethics Code Yesterday

Posted by kswisher on Friday, August, 9, 2013

Brilliant Professors Charlie Geyh and Steve Gillers have just written an op ed on the Supreme Court’s incredible failure to adopt an ethics code.  In it, they mention (among other current topics) the recent introduction of the Supreme Court Ethics Act of 2013, which would attempt to require the Court to adopt an ethics code — any ethics code.  (To be sure, the act would require that the Court adopt the structure of the Code of Conduct for United States Judges, but the Court could deviate from it as “appropriate.”)

To read their brief but important piece, click here.

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Editorial: Judicial Campaign Money, Disqualification, and the Status Quo Bias

Posted by judicialethicsforum on Sunday, August, 4, 2013

Before the ABA’s House of Delegates in a few days will be Resolution 108, which proposes to amend the Model Code of Judicial Conduct to address judicial campaign contributions and independent expenditures.  When elective judges receive campaign contributions or benefit (or suffer) from independent expenditures, those judges must consider various factors to determine whether to recuse themselves from cases involving those spenders.  Resolution 108, which is supported by the ABA’s Standing Committees on Ethics and Professional Discipline and the Association of Professional Responsibility Lawyers (among others), competently and fairly comprehensively addresses these considerations.

To be sure, 108 is not perfect.  For example, it arguably concedes too much to commentators by inserting two, money-in-politics concessions in the official comments: (1) “no inference about a judge’s actual knowledge should be drawn solely from the fact that reports of campaign contributions or independent expenditures have been filed by individuals or organizations as required by law and may be available as public records or in the public domain” [yet, as the Model and most state Codes acknowledge, actual knowledge can be inferred from the circumstances]; and (2) “The fact that a party, a party’s lawyer, or the law firm of a party’s lawyer has made a contribution to a judge’s election or retention election campaign in an amount up to the limit allowed by law should not, of itself, be a basis for the judge’s disqualification” [which of course does nothing to address high-contribution-limit jurisdictions, among other issues].  Resolution 108 is not perfect primarily because the ABA’s Judicial Division has, to editorialize, insisted that watered-down provisions prevail.  And even when such watered-down-but-still-better-than-the-status-quo provisions prevailed in 108′s final version, the Judicial Division not only refused to sign onto 108 but issued a call to resist change and drafted its competing Resolution 10-B.  10-B simply asks states to review their own disqualification procedures individually.

10-B seems simply a roadblock to change, and to see it, note that Resolution 107 (which did essentially everything that 10-B purports to do) was passed in 2011, Caperton was decided in 2009, the ABA Judicial Disqualification Project began in 2007, and judicial campaign spending has increased significantly throughout this period (and will likely continue to increase in the future).  In light of all of that time and all of those developments (to name just a few), the Judicial Division could create nothing better than a request that each individual state review its disqualification procedures?  Or perhaps the Judicial Division no longer supports the concept of Model Codes?

In sum, Vote for 108 — except that you cannot.  Owing to the resistance from the Judicial Division, the Committees on Ethics and Professional Discipline just agreed to withdraw Resolution 108 (contingent on the withdrawal of 10-B).  Thank you to the Committees for your efforts to date, but money and power are not easily defeated.  “I am not concerned that you have fallen; I am concerned that you arise.” — Lincoln.

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Comparative Judicial Ethics

Posted by judicialethicsforum on Sunday, May, 19, 2013

To compare several similarities and differences between state or federal judicial ethics and three diverse venues (namely, Canada, Japan, and North Carolina), see below:

(1) Canada: Judicial Disqualification Under the “Reasonable Apprehension of Bias” Test

The “reasonable apprehension of bias” test for judicial disqualification has been a fixture of Canadian law for many years, despite a considerable amount of litigation concerning judicial impartiality. The test itself has remained fundamentally unaltered and is well accepted in the jurisprudence. Unfortunately, the application of the test continues to generate difficulties for judges who need to use it to make decisions in marginal cases. Based on previously published doctrinal and empirical research, our goal in the present paper is to suggest modifications to the test that will better explain the existing jurisprudence and make it easier for judges to understand when recusal is or is not necessary in marginal cases. We begin considering the advantages of and suggest that in order to be useful, any refinement to the test must to the greatest extent possible preserve those advantages. In the second part of the paper we consider why inconsistent application of the test in marginal cases is a concern. This is followed by a more detailed consideration of the ways in which the existing test, and the jurisprudence explaining and applying it, are problematic. The fourth part of the paper proposes a modification to the “reasonable apprehension of bias” test that is designed to address these shortcomings while preserving the key advantages of the existing test.

Jula Hughes & Philip Bryden, Refining the Reasonable Apprehension of Bias Test: Providing Judges Better Tools for Addressing Judicial Disqualification, 36 Dalhousie L.J. (forthcoming 2013) (including references to an interesting survey of Canadian judges’ recusal preferences and practices).

(2) Japan: Judicial Disqualification and Meanings of Fairness and Due Process

This article considers how Japanese judges have articulated the meaning of fairness in judicial decisions. The provisions in Japan’s Code of Civil Procedure, which provide for disqualification of judges and for direct party challenges to judges’ involvement in cases, explicitly require judges to weigh the fairness of the justice process in the particular circumstances of the cases before them. These cases provide a unique window for understanding the meaning of fairness, or what U.S. scholars might call due process, in Japanese jurisprudence.

In fact, the meaning of fairness has earned little explanation from Japan’s judges in their formal jurisprudential voice. Research uncovered only ten published case decisions under the current Constitution and Code of Civil Procedure that address the standards here. In all but one, the results were denials of the petitions and refusals to remove the judge. Early decisions, in particular, demonstrated a narrow acknowledgement of the potential for bias and were resolved via a formalistic reasoning that paid little regard for public perceptions.

While the record of judicial disqualification and challenge cases shows a history of harsh determinations in the early post-war years in Japan, more recent decisions emerging in the context of the massive changes to Japan’s justice system since 2001 suggest that judicial system reform has had a modest, but positive impact with regards to the quality of procedural justice available to civil litigants in Japan. In particular, an April 2011 decision by the Japanese Supreme Court’s Second Petty Bench, which clearly acknowledges a requirement of due process in civil procedure, offers optimism for further improvement in years ahead.

Mark Levin, Circumstances that Would Prejudice Impartiality: The Meaning of Fairness in Japanese Jurisprudence, Hastings International & Comparative L. Rev. (forthcoming 2013).

(3) North Carolina: The Appearance of Impropriety

The ABA Model Code of Judicial Conduct and the judicial codes of conduct in nearly every jurisdiction admonish judges to avoid the appearance of impropriety. The North Carolina Code of Judicial Conduct likewise contained a similar prohibition until 2003, when the North Carolina Supreme Court removed the language and made related amendments to the Code. Although North Carolina is clearly an outlier in this regard, two questions remain: first, whether North Carolina judges are still required to consider appearances in performing their duties; and second, whether judicial codes of conduct should proscribe such a standard at all.

To answer this latter question, this Article draws upon the social psychology theories of cognitive bias and procedural justice. These two theories work together to impact how judges arrive at decisions and how litigants will perceive and respond to those decisions. Both theories militate in favor of including a robust appearance standard in a judicial code of conduct. Moreover, the changes to the North Carolina Code in 2003 simultaneously exacerbated the negative effects of cognitive bias and decreased litigants’ perceptions of procedural justice in state courts.

But reinstating the appearance of impropriety language to the North Carolina Code alone will not fully ensure judicial propriety, or even the appearance of propriety. Thus, this Article illustrates how an understanding of cognitive bias and procedural justice can inform the introduction of other reforms, using the issue of judicial involvement in plea bargaining and sentencing as an example of how these theories may be applied.

Jon P. McClanahan, Restoring the Appearance of Propriety to the Judiciary, N.C. L. Rev. (forthcoming 2013).

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Sample on Supreme Court Recusal

Posted by judicialethicsforum on Sunday, May, 19, 2013

Outstanding Professor James Sample has published an interesting review of Supreme Court recusal practice (or lack thereof).  Portions of the abstract and a link to Professor Sample’s full work follow:

For Justices of the U.S. Supreme Court, controversies pitting personal conflicts — whether actual or merely alleged — against the constitutional commitment to the rule of law increasingly form the basis of a caustic and circular national dialogue that generates substantially more heat than light. While the profile of these controversies is undoubtedly waxing, the underlying tensions stretch back at least to Marbury v. Madison. . . .

The study yields a layered picture that is rich in historical imagery, anecdote, and analytically-critical context. In this respect, the Article includes, but is not limited to, treatments of the midnight Justices in Marbury; the Steel Seizure case and the “damned fool” whom Truman felt was the “biggest mistake he had made” as President; Thurgood Marshall’s long arc with the NAACP; perhaps the best-known duck-hunting trip of all time; Justice O’Connor’s election night outburst preceding Bush v. Gore; profound matters of issue identification involving Justices Ginsburg and Breyer; and finally the controversies surrounding the Patient Protection and Affordable Care Act, including the undisclosed income related to Virginia Thomas’s work opposing the health care legislation and Justice Kagan’s ill-advised e-mails including the memorable “I hear they have the votes, Larry!!”

The exploration serves as a navigational guide to the difficult but necessary task of separating the shrill cries from the serious constitutional concern of genuine Supreme Court conflict. The Article situates the analysis of Supreme Court disqualification practice, and particularly the circumstances involving Justices Thomas and Kagan vis-a`-vis the Patient Protection and Affordable Care Act, within the broader, enduring legal dichotomy of rules as opposed to standards. Pointing to Chief Justice Roberts’s recent, relatively bare assertion that when it comes to disqualification, the Supreme Court is simply constitution- ally and pragmatically different, the Article asserts that while the Chief Justice’s argument is neither emotionally nor intellectually satisfying, in an imperfect world, his argument is also entirely correct. . . .

James Sample, Supreme Court Recusal from Marbury to the Modern Day, 26 Geo. J. Legal Ethics 95 (2013).

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The Third ABA Judicial Ethics Opinion in Three Decades

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.

For the full opinion, click here.

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New Scholarship: White on Judicial Disqualification in Perspective

Posted by judicialethicsforum on Thursday, February, 21, 2013

Professor and former Tennessee Supreme Court Justice Penny White has published an interesting new essay on judicial disqualification, in which she asserts “that robust disqualification provisions can serve as a powerful antidote to the harmful effects of [the White and Citizens United] decisions, particularly when judges view disqualification requests from the public’s perspective.”  For the full essay, click the link below:

Penny J. White, A New Perspective on Judicial Disqualification: An Antidote to the Effects of the Decisions in White and Citizens United, 46 Ind. L. Rev. 103 (2013).

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New Scholarship: Lubet and Diegel on Supreme Court Ethics Reform

Posted by judicialethicsforum on Thursday, February, 21, 2013

This fairly recent research paper seeks ethics and disqualification reform in the Supreme Court:

The United States Supreme Court is the only court in the United States without a clearly defined ethics code. In the wake of the controversy over possible leaks from justices’ chambers following the decision in NFIB v. Sebelius, and in light of legislation recently introduced in Congress, this paper suggests two reforms for the Supreme Court. First, the time has finally come for the Court to adopt a comprehensive Code of Conduct. Second, the Court should alter its current recusal practice – in which decisions are made exclusively by individual justices – and instead resolve disqualification motions by a vote of the full court.

Steven Lubet & Clare Diegel, Stonewalling, Leaks, and Counter-Leaks: Scotus Ethics in the Wake of NFIB v. Sebelius (Sept. 10, 2012).

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The ABA Is Adjusting the Disqualification Rules After Caperton

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.

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

Chief Judges and Ex Parte Contacts with Law Enforcement

Posted by judicialethicsforum on Tuesday, September, 25, 2012

Many readers are likely familiar with the Shalom Rubashkin case, which is now the subject of a short documentary.  The case involves many fascinating and frightening details, but of particular relevance are the ex parte contacts: the chief judge met for months with law enforcement planning the raid of Rubashkin’s business.  The judge did not disclose the extent of those planning sessions to the defendant or defense counsel; the contacts were instead revealed through a later public records request.   Ethics Experts Steve Gillers and Mark Harrison submitted affidavits indicating that both the prosecutors and the judge misstepped ethically.  The Supreme Court will soon consider whether to grant cert (it should), in a petition filed by Paul Clement.  The new documentary follows:

Additionally, some recent press about the film and the case can be viewed here.

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Swisher on Recusal and the Supreme Court’s Carrigan Decision

Posted by judicialethicsforum on Friday, May, 11, 2012

Prof. Swisher (Phoenix) has posted this essay about Carrigan, recusal, and related constitutional theory.  Here is the abstract:

Something good and something bad happened recently in government and judicial ethics; no one has truly noticed yet for some reason. The Supreme Court all but banned First Amendment analysis as applied to recusal laws, both legislative and judicial. That, actually, is the good thing, or so I argue. The bad thing is that the Court, in doing so, used a geriatric approach to constitutional theory. The approach is unduly reverent of anything “old;” and old is not limited to the practices of the Founding Fathers, but also includes “traditional” practices within some undefined range. But what is old is not necessarily wise, and a theory to the contrary leads to degenerative results in general and in ethics in particular, or so I argue further. I conclude with a return to the positive, hoping that the Court’s path may have inadvertently sparked a viable conceptual foundation for judicial recusal law and practice, which of course, have received much general press and scholarly attention of late.

For the full essay, click here; Keith Swisher, Recusal, Government Ethics, and Superannuated Constitutional Theory, 72 Md. L. Rev. (forthcoming Dec. 2012). 

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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.

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The Chief Justice Ushers in the New Year with Superior Cheer

Posted by kswisher on Sunday, January, 15, 2012

Although admittedly old news by now, Chief Justice Roberts used his annual report to defend his Court’s indefensible lack of a judicial ethics code.  His defenses playfully distill into these three: (1) the other justices and I are good people so we do not need binding rules; (2) we and our court are special; and (3) ethics codes cannot guarantee ethical behavior (only the good people mentioned in (1) can do that).  The principle of “a government of law and not of [wo/]men” was reversed. 

To read the report, which is only twelve pages, click here.  Interestingly, the report begins and ends with the well-known tale of Judge Landis, without discussing the various conflicts and appearances in that tale; it almost makes one wonder whether the Chief Justice would like to take on a second job as “Commissioner of Baseball.” 

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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

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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.

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New Scholarship: Rotunda on White, Caperton, and Citizens United

Posted by kswisher on Sunday, August, 7, 2011

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.

Ronald D. Rotunda, Constitutionalizing Judicial Ethics: Judicial Elections After Republican Party of Minnesota v. White, Caperton, and Citizens United, 64 Ark. L. Rev. 1 (2011).

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A Supreme Victory for Government Ethics and Judicial Recusal

Posted by kswisher on Tuesday, June, 14, 2011

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 Caperton v. 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.”

Here is the full opinion: Nevada Commission on Ethics v. Carrigan; see also coverage at the Election Law Blog.

Posted in Judicial Campaigns, Judicial Disqualification & Recusal, Judicial Ethics Generally | Leave a Comment »

New Scholarship: Geyh Summarizes Federal Disqualification Law

Posted by judicialethicsforum on Sunday, May, 1, 2011

The Federal Judicial Center has released the Second Edition of Judicial Disqualification: An Analysis of Federal Law.  This free monograph was put together by Professor Charlie Geyh, whose name alone almost guarantees quality work.  [The treatise is a revised and expanded edition of Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144, published in 2002 (also by the Federal Judicial Center).]  Here is the Table of Contents for reference:

I.    History of Disqualification

II.   Disqualification Under 28 U.S.C. § 455

    A.    Overview

    B.    Grounds for disqualification

    C.    Disqualification procedure

III.  Disqualification Under 28 U.S.C. § 144

    A.    Overview

    B.    Grounds For disqualification

    C.    Disqualification Procedures

IV.  Disqualification Under 28 U.S.C. § 47

V.   Disqualification on Appeal

    A.    Routes of appellate review

    B.    Standards of review

    C.    Issues on appeal

    D.    Disqualification under 28 U.S.C. § 2106

Appendix: Code of Conduct for the United States Judges, Canons 3C and 3D

Posted in Judicial Disqualification & Recusal | Leave a Comment »

 
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