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Archive for the ‘Judicial Disqualification & Recusal’ Category

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.

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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

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Justice Kagan Receives the Latest Call for Recusal from Health Care Reform

Posted by judicialethicsforum on Sunday, May, 1, 2011

Supreme Court Justice Elena Kagan is the latest Justice to draw attention on whether she should recuse herself from ruling on the recent health care legislation.  The attention on Kagan follows repeated requests for Justice Thomas to recuse himself from the case, as well as the recent law professors’ letter to Congress and the proposed bill to impose recusal rules on the Supreme Court (Supreme Court Transparency and Disclosure Act).

Kagan drew attention after the Department of Justice released internal emails between DOJ officials discussing possible defenses to the Affordable Care Act.  The now Acting Solicitor General, Neal Katyal, forwarded an email regarding a white house meeting on the topic to then Solicitor General, Elena Kagan. 

Katyal’s email:

“This is the first I’ve heard of this.  I think you should go, no?  I will, regardless, but feel like this is litigation of singular importance.” 

Kagan’s reply email:

“What’s your phone number?” 

Various websites have been speculating whether she actually discussed the health care legislation and did not want to create a written record. 

The Atlantic’s editorial can be read here.

The National Review’s article can be read here.

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New Scholarship: McKoski on Actual v. Apparent Impartiality

Posted by judicialethicsforum on Sunday, March, 27, 2011

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

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

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

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

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Judicial Ethics in the News

Posted by judicialethicsforum on Sunday, March, 27, 2011

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

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

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

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New York to Bar Judicial-Campaign-Contributing Attorneys from Courtroom for Two Years

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.

To read more on this important development, click on one or more of the following outlets: Brennan Center (calling the rule “a victory for recusal reform”); NY Times (a “bold step”); and The Wall Street Journal (“It would be one of the strictest disqualification rules in the nation”); see also generally Keith Swisher, Legal Ethics and Campaign Contributions: The Professional Responsibility to Pay for Justice, 24 Georgetown J. Legal Ethics (forthcoming 2011).

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Swisher on Attorneys’ Judicial Campaign Contributions

Posted by kswisher on Monday, December, 20, 2010

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

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Judge Reinhardt’s Refusal to Recuse Himself

Posted by monroefreedman on Friday, December, 3, 2010

According to Law.com, the motion was based on allegations that the judge’s wife’s is a longtime advocate for gay rights, that she conferred with the plaintiffs about the suit before it was filed, and that her office, the ACLU, filed an amicus brief in the trial court in the same case.

In his short memo denying the motion, the judge did not deny any of the allegations. He simply said that he could be impartial.

First, his saying that does not meet the statutory requirement.

Second, his wife’s record of advocacy is not in itself enough.

However, if she did confer with the plaintiffs in planning the suit, and if she is still Director of a an organization that filed an amicus in the case, I believe that a reasonable person might question the judge’s impartiality – not would question, but might question, and not might decide, but might question.   A principal reason for my conclusion is that a person who has been involved in this very litigation is in a position to have frequent ex parte communications with the judge.

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Keith Swisher on Pro-Prosecution Judges

Posted by monroefreedman on Thursday, December, 2, 2010

I highly recommend Keith Swisher’s article,  Pro-Prosecution Judges:  “Tough on Crime,” Soft on Strategy, Ripe for Disqualification.  It’s thoroughly  researched and powerfully written.  52 Arizona L. Rev. 317 (2010).

Posted in Judicial Disqualification & Recusal | 1 Comment »

Judicial Ethics in Understanding Lawyers’ Ethics

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

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The Old News of The New Politics

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 in Judicial Campaigns, Judicial Disqualification & Recusal, Judicial Ethics Generally | 1 Comment »

A Court Divided

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 in Judicial Campaigns, Judicial Disqualification & Recusal | 1 Comment »

New Scholarship: Sample on Caperton and Post-Caperton State Court Reform

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). 

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Congressional Hearings on Disqualification and Impeachment

Posted by kswisher on Wednesday, January, 20, 2010

Last month, the House Courts Subcommittee and the Task Force on Judicial Impeachment addressed two pressing issues: (1) the rules of disqualification post-Caperton and (2) the impeachment of Judge Porteous.  Helpfully, both hearings are captured on video, feature the appearances of a few of the true experts on these subjects, and include links to their written testimony.  The point of this post is neutral reportage, but to editorialize just a bit: Some interesting testimony lurks in these links (take, for example, that of Professor Eugene Volokh [UCLA] whose mostly entertaining written testimony on the state of disqualification law somewhat shockingly recommends no particular action and doubts the existence of serious problems, at least of the type that could be remedied through disqualification law).

(1) Hearing on Examining the State of Judicial Recusals after Caperton v. A.T. Massey

(a) To watch the hearing, click here (which may require RealPlayer);

(b) To view the written testimony, click on the name of the respective witness:

M. Margaret McKeown
U.S. Courts of Appeals
Ninth Circuit
Charles G. Geyh
Associate Dean of Research
John F. Kimberling Professor of Law
Indiana University, Maurer School of Law
Richard E. Flamm
Author of Judicial Disqualification: Recusal and Disqualification of Judges; Conflicts of Interest and Law Firm Disqualification
Eugene Volokh
Gary T. Schwartz Professor of Law
University of California
Norman L. Reimer
Executive Director
National Association of Criminal Defense Lawyers
Arthur D. Hellman
Professor of Law
University of Pittsburgh

 

(2) Hearing to Consider Possible Impeachment of United States District Judge G. Thomas Porteous, Jr., Part IV

(a) To watch the hearing, click here (which may require RealPlayer);

(b) To view the written testimony, click on the name of the respective witness:

Akhil R. Amar
Sterling Professor of Law and Political Science
Yale Law School
Charles G. Geyh
Associate Dean for Research and the John F. Kimberling Professor of Law
Indiana University Maurer School of Law
Michael J. Gerhardt
Samuel Ashe Distinguished Professor in Constitutional Law & Director, Center for Law and Government
University of North Carolina School of Law

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Two Comments on Extrajudicial Comments

Posted by kswisher on Wednesday, December, 16, 2009

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

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

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

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

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Facebooking in Florida

Posted by judicialethicsforum on Wednesday, December, 16, 2009

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

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

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New Scholarship: Swisher on Tough-on-Crime Judges

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.

Keith Swisher, Pro-Prosecution Judges: “Tough on Crime,” Soft on Strategy, Ripe for Disqualification, 52 Ariz. L. Rev. (forthcoming 2010).  A link to which can also be found in Articles

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Something Is Rotten in the State of Wisconsin

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 in Judicial Campaigns, Judicial Disqualification & Recusal | 2 Comments »