The Judicial Ethics Forum (JEF)

An Academic Discussion of Judicial Ethics, Discipline & Disqualification

Archive for April, 2015

New Contributor: Professor Bam on Williams-Yulee and Its Significance

Posted by judicialethicsforum on Thursday, April, 30, 2015

Judicial ethics scholar Dmitry Bam (Maine) has authored insightful works on judicial elections, disqualification, and Caperton.  He has graciously contributed this post, thoughtfully discussing both the significance and the insignificance of the Supreme Court’s Williams-Yulee opinion:

Imagine you are a plaintiff in a medical malpractice case. You are suing a prominent (and wealthy) local doctor and a local hospital. One of two potential judges will be assigned to hear your case. Both judges received campaign contributions from the doctor and from defense counsel. In addition, a pro-hospital/pro-doctor lobbying group had spent a significant amount of money to support both judges’ campaigns for office. Both judges, in the course of their campaigns, announced that they would “take on trial lawyers” and “the medical malpractice litigation run amok,” and both judges plan to run for office in a few years when their terms end.

But there is one difference between the two judges. In the course of his campaign, Judge #1 wrote and signed a letter to hundreds of lawyers, including defense counsel, personally asking for a contribution to support his campaign. Judge #2 talked to the same defense counsel in the course of her campaign, describing her views and positions on controversial legal issues, but rather than asking anyone for money directly, Judge #2 asked her campaign manager to contact potential contributors. Judge #2 also demanded that the campaign manager tell her immediately who contributes to her campaign and wrote thank you notes to those generous enough to contribute to her campaign.

If your first thought is “Boy, I hope I don’t get stuck with that first guy,” then yesterday’s Supreme Court decision in Williams-Yulee offers an important safeguard of judicial impartiality and its appearance. To the surprise of many experts, the Supreme Court upheld a First Amendment challenge to a Florida canon of judicial ethics prohibiting personal solicitation of campaign funds. The Court held that Florida has a compelling interest in preserving judicial impartiality (and the appearance of judicial impartiality), and the canon prohibiting personal solicitation is narrowly tailored to satisfy that interest. In other words, Florida, and the other 38 states that elect their judges, may have a rule in place prohibiting judges and judicial candidates from personally asking for campaign contributions.

But if, like me, your reaction is “These two judges are indistinguishable, at least when it comes to appearance of bias”, then the Williams-Yulee decision offers little comfort. After all, both judges are potentially biased in favor of the defense; both judges owe a debt of gratitude to the defendant and defense counsel; both judges will need to keep their contributors happy for the next time they run for office. And the difference between how they solicited the money that they received is beside the point.

Now, throughout the opinion, the Court talks the impartiality talk. Justice Roberts’s majority opinion highlights the importance of public perceptions to the judiciary, discusses the fundamental differences between the judicial and other political branches, and provides a strong defense of the need for judicial impartiality. Judges must “apply the law without fear or favor,” repeats Roberts throughout the opinion. Lofty words for a decision that makes so little difference when it comes to any of those things. The rhetoric is almost entirely detached from the minimal (perhaps nonexistent) protection of judicial impartiality created by this decision (or the Florida canon itself).

For example, the Court explains that “in deciding cases, a judge is not to follow the preferences of his supporters, or provide any special consideration to his campaign donors.” But we now know that is precisely what happens. Studies have shown that judges do favor the preferences of the electorate, and judges do give special consideration to their campaign donors. And it all happens whether or not judges solicit campaigns directly. The studies showing that elected judges are biased in favor of the political preferences of the electorate as well as their contributors identify a link between judicial contributions and judicial decisions, not judicial requests for contributions and judicial decisions. The Williams-Yulee decision, despite the majority’s paean to judicial impartiality, is no solution to the monumental problem of judicial bias in elected state courts.

The decision also does little (if anything) for appearance of judicial impartiality, despite the prominent role that appearances play in the Court’s analysis. A large majority of the public perceives judges who receive contributions from litigants and lawyers that appear in front of them to be biased, and will continue to perceive judges who receive such contributions to be biased. As Justice Scalia explains in dissent, “Neither the Court nor the State identifies the slightest evidence that banning requests for contributions will substantially improve public trust in judges.” Of course not, and that’s because while such direct personal requests make life more difficult for a lawyer (who must say “no” to a judge asking for money), it is not the requests that lead 80% of the public to question judicial impartiality. No, it is the contributions/expenditures themselves.

If the holding itself does nothing more than leave states with an impotent tool to fight an overwhelming problem, why am I blogging about it? Is there anything useful to take away from the Court’s decision? Maybe. The most important aspect of the decision, in my opinion, is that the court seems cognizant that standard electoral rules may not apply when it comes to electing our judges. Sure, the Court (or a plurality of the Court, since Justice Ginsburg does not join this part of the opinion) purports to apply strict scrutiny, but Justice Scalia is right that this is not the strict scrutiny of recent First Amendment cases like United States v. Stevens, United States v. Alvarez, Brown v. Entertainment Merchants Association, Snyder v. Phelps, or, most importantly, Republican Party of Minnesota v. White. In other words, Williams-Yulee may be a signal of how the Court will approach regulations of judicial elections that—outside the judicial election context—would run afoul of the First Amendment.

And it is Chief Justice Roberts who holds all the keys. Over a decade ago, in Republican Party of Minnesota v. White, the Court struck down Minnesota’s prohibition on judicial candidates announcing their views on legal issues likely to come before the judges if they win the election. Joining Justice Roberts’s Williams-Yulee opinion are four other justices, all of whom were either in the dissent in White, or would likely have been in dissent had they been on the Court a decade ago (Justices Kagan and Sotomayor replaced White dissenters Justices Stevens and Souter). But it took Chief Justice Roberts to turn a 4-justice dissent in White into a 5-justice majority in Williams-Yulee. Justice Roberts was not on the Court when the White case was decided, so we do not know how he would have voted, but the most important take-away from Williams-Yulee is that Justice Roberts may be more susceptible to regulation of judicial elections than his conservative colleagues on the Court.

Perhaps the court would allow a fund-matching public financing scheme for judicial elections, akin to the one it struck down in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett. Perhaps the Court would permit limits on independent expenditures—the kinds of limits that are thought to be unconstitutional under Buckley v. Valeo and Citizens United. Perhaps it would permit complete bans on contributions to judicial candidates by litigants and lawyers that are likely to appear in front of them? Until yesterday, all of these options seemed to be off the table. Today, they are perhaps a little closer to the table than we thought. Williams-Yulee offers a glimmer of hope that the Court will grant states some flexibility in regulating judicial elections—flexibility that states do not have when it comes to regulating money in legislative/executive elections.

Finally, the Court also seems cognizant that recusal is not the answer to election-related judicial bias. In White, Justice Kennedy’s concurrence explained that to the extent that judicial announcements create concerns about judicial bias, recusal can solve the problem. Similarly, five years ago in Caperton, recusal was once again offered as the solution to the problem of biased judges. But in Williams-Yulee, Justice Roberts acknowledges that recusal alone is not enough. “A rule requiring judges to recuse themselves from every case in which a lawyer or litigant made a campaign contribution would disable many jurisdictions. And a flood of postelection recusal motions could ‘erode public confidence in judicial impartiality’ and thereby exacerbate the very appearance problem the State is trying to solve.”

In short, while I’m skeptical that Williams-Yulee itself makes much of a dent in the problem of biased elected judges, I am hopeful that the decision signals that the Court understands the scope of the problem. And if judicial elections are not going away any time soon (and they are not) and recusal is not the answer (and it is not), then our ability to preserve the rule of law and ensure judicial impartiality may hinge on the flexibility to regulate judicial elections that the Court will grant to states under the First Amendment. We will have to wait and see whether the Court is open to such an approach.

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

The Latest Edition of the Judicial Conduct Reporter

Posted by kswisher on Thursday, April, 30, 2015

Cindy Gray and the Center for Judicial Ethics have kindly posted a recent edition of the Judicial Conduct Reporter.  Click here to view the edition (Winter 2015).  It is an informative read, including a summary of the 104 instances of public judicial discipline in 2014, a list of top judicial ethics stories in 2014, and a flyer for the 24th National College on Judicial Conduct and Ethics (which will be held in Chicago on October 28-30, 2015).

Posted in Judicial Ethics Generally | Leave a Comment »

Williams-Yulee: The Blockbuster Judicial Ethics Case of the Year?

Posted by kswisher on Wednesday, April, 29, 2015

When the Florida Bar bans lawyers or judges from personal solicitations, the Supreme Court will, in a five-to-four decision, uphold the ban against the resulting First Amendment challenge.  Or so the Florida Bar now reasonably believes, having twice won in this fashion.  Twenty years ago, the Bar first won in Florida Bar v. Went For It, Inc. (concluding that the “Florida Bar’s 30-day restriction on targeted direct mail solicitation of accident victims and their relatives withstands [First Amendment] scrutiny”).  The second and (for our purposes) much more relevant case is now Williams-Yulee.  The Supreme Court of the United States has just upheld Florida’s ban on personal solicitation of judicial campaign contributions.  Joined by the Court’s so-called “liberal wing,” Chief Justice Roberts wrote the opinion of the Court blessing the ban.  (Florida’s ban on judicial candidates personally soliciting money is based on the 1972 ABA Code of Judicial Conduct, and 29 other states have similar bans based on the 1972, 1990, and 2007 ABA Model Codes; for further background on the Williams-Yulee case, click here and here.)  The opinion is partly a plurality opinion because Justice Ginsburg refused to join the part of the opinion concluding that strict (“exacting”) scrutiny applies to this judicial election regulation, which prohibits only a very narrow category of speech (i.e., a judicial candidate’s personal request for campaign money).  Thus, the Court effectively lacks a holding on the applicable standard of First Amendment scrutiny.  Five members of the Court (including Ginsburg), however, concluded that the canon is one of the “rare” regulations surviving strict scrutiny analysis.  The majority opinion will further provide critical support against other challenges to campaign-trail regulations in judicial elections, including the Ninth Circuit’s upcoming en banc decision in Wolfson (which had been stayed pending the opinion in Williams-Yulee).  The Ninth Circuit’s now-vacated panel opinion had relied largely on a distinction between (non-judge) judicial candidates and sitting judges — a distinction on which the Williams-Yulee opinion places absolutely no weight.

In Williams-Yulee, the Chief Justice made many fascinating and likely long-lasting distinctions, and three key, interrelated distinctions are highlighted below:

(1) On the nature of judges (vis-a-vis political officials):

Judges are not politicians, even when they come to the bench by way of the ballot. And a State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office. A State may assure its people that judges will apply the law without fear or favor—and without having personally asked anyone for money. . . . [A] State has compelling interests in regulating judicial elections that extend beyond its interests in regulating political elections, because judges are not politicians.

(2) On the regulation of judicial elections (v. other elections):

The parties devote considerable attention to our cases analyzing campaign finance restrictions in political elections. But a State’s interest in preserving public confidence in the integrity of its judiciary extends beyond its interest in preventing the appearance of corruption in legislative and executive elections. As we explained in White, States may regulate judicial elections differently than they regulate political elections, because the role of judges differs from the role of politicians. . . . Politicians are expected to be appropriately responsive to the preferences of their supporters. Indeed, such “responsiveness is key to the very concept of self-governance through elected officials.” McCutcheon v. Federal Election Comm’n, 572 U. S. ___, ___ (2014) (plurality opinion) (slip op., at 39). The same is not true of judges. In deciding cases, a judge is not to follow the preferences of his supporters, or provide any special consideration to his campaign donors. A judge instead must “observe the utmost fairness,” striving to be“perfectly and completely independent, with nothing to influence or controul him but God and his conscience.” Address of John Marshall, in Proceedings and Debates of the Virginia State Convention of 1829–1830, p. 616 (1830). As in White, therefore, our precedents applying the First Amendment to political elections have little bearing on the issues here.

(3) On judges’ solicitations (v. others’ solicitations):

[In her argument that the canon is fatally underinclusive,] Yulee relies heavily on the provision of Canon 7C(1) that allows solicitation by a candidate’s campaign committee. But Florida, along with most other States, has reasonably concluded that solicitation by the candidate personally creates a categorically different and more severe risk of undermining public confidence than does solicitation by a campaign committee. The identity of the solicitor matters, as anyone who has encountered a Girl Scout selling cookies outside a grocery store can attest. When the judicial candidate himself asks for money, the stakes are higher for all involved. The candidate has personally invested his time and effort in the fundraising appeal; he has placed his name and reputation behind the request. The solicited individual knows that, and also knows that the solicitor might be in a position to single handedly make decisions of great weight: The same person who signed the fundraising letter might one day sign the judgment. This dynamic inevitably creates pressure for the recipient to comply, and it does so in a way that solicitation by a third party does not. Just as inevitably, the personal involvement of the candidate in the solicitation creates the public appearance that the candidate will remember who says yes, and who says no. . . .

The vast majority of elected judges in States that allow personal solicitation serve with fairness and honor. But “[e]ven if judges were able to refrain from favoring donors, the mere possibility that judges’ decisions may be motivated by the desire to repay campaign contributions is likely to undermine the public’s confidence in the judiciary.” White, 536 U. S., at 790 (O’Connor, J., concurring). In the eyes of the public, a judge’s personal solicitation could result (even unknowingly) in “a possible temptation . . . which might lead him not to hold the balance nice, clear and true.” Tumey v. Ohio, 273 U. S. 510, 532 (1927). That risk is especially pronounced because most donors are lawyers and litigants who may appear before the judge they are supporting. See A. Bannon, E. Velasco, L. Casey, & L. Reagan, The New Politics of Judicial Elections: 2011–12, p. 15 (2013).

Further reading: The news coverage of this blockbuster and (result-wise) surprising opinion is mountainous.  Some great notes on the opinions (including the dissents) are available at the New York Times, Huffington Post, Election Law Blog, SCOTUS Blog, and Wall Street Journal, just to name a few.

Posted in Canon 4, Judicial Campaigns | Leave a Comment »

New Scholarship: Federal Rules Revisions and Judicial Bias Claims

Posted by kswisher on Wednesday, April, 29, 2015

Two new pieces directly or indirectly addressing judicial ethics are now available:

(1) Professor Arthur Hellman (Pittsburgh) has posted here his detailed comments on the proposed revisions to the federal rules for handling judicial conduct complaints.  His abstract follows:

In 2008, the Judicial Conference of the United States – the administrative policy-making body of the federal judiciary – approved a revised set of rules for handling complaints of misconduct or disability on the part of federal judges. Moving away from the decentralizing approach of the pre-2008 Illustrative Rules, the new rules were made binding on all of the federal judicial circuits.

On September 2, 2014, the Conference’s Committee on Judicial Conduct and Disability (Conduct Committee) issued a set of draft amendments to the Rules. The announcement invited comments on the proposed amendments. This statement was submitted in response to that invitation. The statement is in four parts. Part I provides some background. Part II discusses the policy changes proposed by the Committee. Part III addresses the special problems raised by “high-visibility” complaints. Part IV suggests some additional modest revisions in the Rules and flags issues that warrant the Committee’s attention in the future.

Most of the amendments in the published draft involve clarification or emphasis. But I have identified six revisions that do reflect changes of policy from the 2008 Rules. Five of the six reflect sound policy; they will serve to enhance transparency and strengthen procedural regularity. However, one proposed revision – an amendment that would allow tie votes in the Conduct Committee on petitions for review – is unwise. I urge the Committee to reconsider it.

Part IV addresses a variety of issues raised by the proposed draft and the Rules as originally adopted. These include: the chief judge’s obligation to “identify” a complaint based on public reports suggesting that a judge may have engaged in misconduct; judicial council authority to impose sanctions on complainants who abuse the process; disqualification of judges from proceedings under the 1980 Act; and making the Rules more user-friendly. The most detailed discussion involves two issues raised by the misconduct complaint against former District Judge Richard Cebull of Montana: judicial-council authority to conclude a proceeding and disclosure of judicial-council orders that have been vacated or modified.

(2) The prolific Bruce Green (Fordham) has just published an interesting article addressing whether, on balance, it is better to resist the urge to claim that implicit bias explains a judge’s ruling.  His article uses as context Judge Scheindlin’s disqualification in New York’s stop-and-frisk controversy:

One who is convinced that a judge wrongly decided a case may sometimes be tempted to accuse the judge of bias, referring to unconscious social-group stereotypes and/or cognitive biases that fall under the rubric of “implicit biases.” The rhetoric is problematic, however, for various reasons. One is that the term “bias” in this context may be misunderstood to mean something different and unintended – either a disqualifying bias under judicial conduct rules or a conscious prejudice. Another is that, even if the intended meaning is clear, a judge’s implicit biases cannot fairly be inferred from a single wrong decision. To illustrate the problem with accusing judges of bias, given the term’s various meanings, the article focuses on recent federal litigation over NYC police stop-and-frisk policy in which (1) the district judge found “implicit bias” in police practices based on accumulated evidence and expert analysis, (2) the Second Circuit found that the district judge engaged in disqualifying judicial bias because of her comments in a prior related lawsuit and in the media, and (3) critics accused the Second Circuit of bias in making decisions that were hard to justify on either procedural or substantive grounds. The article concludes that, on balance, it is better to resist the temptation to import “implicit bias” rhetoric into critiques of individual judicial decisions.

Bruce Green, Legal Discourse and Racial Justice: The Urge to Cry “Bias!”, 28 Geo. J. Legal Ethics 177 (2015).

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Texas Judge Disciplined for Facebooking About a Trial Over Which She Presided

Posted by kswisher on Wednesday, April, 29, 2015

This week, the Texas State Commission on Judicial Conduct publicly admonished Galveston Judge Michelle Slaughter for posting about the criminal trial then-pending before her.  In the so-called “boy in a box case,” Judge Slaughter admonished the jurors not to post on Facebook (or other social media) about the case and then proceeded the next day to post about the status of the case and demonstrative evidence on her own Facebook account.  She also posted a link to this news article about the case.  (Of note, a member of the public posted the following comment in response to Judge Slaughter’s post: “One of my favorite Clint Eastwood movies is ‘Hang ‘Em High’, jus [sic] sayin [sic] your honor. . . .”  Judge Slaughter permitted, perhaps inadvertently, that comment to remain on her Facebook page for several months.)  In other posts, Judge Slaughter also commented on an unrelated child pornography case and called a defendant “very challenging.”  In light of her posts, a defendant moved to disqualify Judge Slaughter, and another judge granted the motion.  This mid-trial disqualification caused a mistrial in the defendant’s case.

The Texas Commission concluded that: “Despite her contention that the information she provided was public information, Judge Slaughter cast reasonable doubt upon her own impartiality and violated her own admonition to jurors by turning to social media to publicly discuss cases pending in her court, giving rise to a legitimate concern that she would not be fair or impartial in the [‘boy in a box’] case or in other high-profile cases. The comments went beyond providing an explanation of the procedures of the court and highlighted evidence that had yet to be introduced at trial.”  The full decision, which Judge Slaughter plans to appeal, is available here.  For other posts highlighting the need to approach social media cautiously (or to avoid it entirely as to pending cases over which the judge is presiding), see here and here.

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