The Judicial Ethics Forum (JEF)

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Archive for the ‘Judicial Disqualification & Recusal’ Category

Call for Papers

Posted by graycynthia on Wednesday, August, 5, 2009

The Drake Law Review and the American Judicature Society are pleased to announce the Seventh Annual American Judicature Society-Drake Law Review Symposium Issue:  The State of Recusal: Judicial Disqualification, Due Process, and the Public’s Post-Caperton Perception of the Integrity of the Justice System.

The United States Supreme Court’s recent decision in Caperton v. A.T. Massey Coal Co. settled that due process requires an objective analysis of the question of judicial impartiality.   However, like most Supreme Court decisions, it raised as many questions as it answered.   Most obviously, the Caperton decision raised questions about the effects of judicial campaign spending on judges’ perceived and actual impartiality.  In addition, Caperton presents questions about the role of federal courts in ensuring impartiality in state courts.  And at the deepest level, the debate about judicial disqualification raises questions about due process guarantees in the context of elected judiciaries.   The debate over judicial disqualification should be broadened in light of these issues.   The Drake Law Review is seeking articles that address issues implicated by judicial disqualification, including, but not limited to, the following considerations:

• The First Amendment implications of the decision in Caperton;

• How state courts should implement the holding in Caperton in their codes of judicial conduct;

• The answers to Chief Justice Roberts’s 40 questions;

• The balance between the various competing values implicated by judicial disqualification;

• Issues relating to standards and procedures for judicial disqualification;

• The unique challenges relating to judicial disqualification in small jurisdictions and on appellate courts;

• The effect of judicial disqualification on the popular legitimacy of the judicial system.

Articles from all backgrounds will be considered, from academic evaluations of the law to empirical studies on judicial disqualification rules and procedures.   The Drake Law Review invites you to participate in this collaboration by submitting an article to be published in this highly regarded issue of the Review.   If you would like to participate in this unique collaborative effort, please contact the Editor in Chief of the Drake Law Review as soon as possible.   All general topic proposals must be submitted by December 4, 2009.   The deadline for completed articles is January 29, 2010.   Final decisions regarding publication are made by the Drake Law Review.  Drake Law Review, 2507 University Avenue Des Moines, Iowa 50311 Phone: (515) 271-2930; Fax: (515) 271-4926; email:;

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

Caperton Repercussions

Posted by graycynthia on Friday, July, 17, 2009

In addition to other repercussions, the U.S. Supreme Court’s June decision in Caperton v. A.T. Massey Energy, 129 S. Ct. 2252 (2009), may help the states defend restrictions on political and campaign activity in their codes of judicial conduct.  Since the Court’s 2002 decision, in Republican Party of Minnesota v. White, 536 U.S. 765 (2002), numerous First Amendment lawsuits have been filed in federal courts, usually by right-to-life organizations, and many (although not all) have succeeded in overturning restrictions on what judges and judicial candidates can say, how they can raise funds, and whether they can be involved in other candidates’ campaign and partisan politics.  (For a discussion of the caselaw after White, click here.)

In the first post-Caperton decision, however, the U.S. District Court for the Northern District of Indiana upheld the constitutionality of canons in Indiana’s revised code of judicial conduct that prohibit judges and judicial candidates from making pledges, promises, and commitments; require disqualification based on a prior commitment; prohibit judges and judicial candidates from acting as a leader or holding office in or making speeches on behalf of a political organization; and prohibit judges and judicial candidates from soliciting funds for, paying an assessment to, or making a contribution to a political organization or a candidate for public office and personally soliciting or accepting campaign contributions other than through a campaign committee.  Bauer v. Shepard, Opinion and Order (July 7, 2009).  The court relied in part on Caperton.

Although the parties disagree about what bearing the Supreme Court’s decision in Caperton should have on this Court’s ruling in this case—the Supreme Court did after all repeatedly note the exceptional, extraordinary, and extreme facts of that case—Caperton does illustrate that judicial elections and judicial conduct (including the issue of recusal) can have important due process of law implications.  Additionally, the Caperton Court noted that the state codes of judicial conduct “serve to maintain the integrity of the judiciary and the rule of law,” and it quoted approvingly the following statement from the amicus curiae brief filed by the Conference of Chief Justices:  “the codes are ‘[t]he principal safeguard against judicial campaign abuses’ that threaten to imperil ‘public confidence in the fairness and integrity of the nation’s elected judges.’” . . .  For the Court, a state’s interest in judicial integrity is “vital” and “of the highest order”:  “Courts, in our system, elaborate principles of law in the course of resolving disputes.  The power and the prerogative of a court to perform this function rest, in the end, upon the respect accorded to its judgments.  The citizen’s respect for judgments depends in turn upon the issuing court’s absolute probity.  Judicial integrity is, in consequence, a state interest of the highest order.”

The court also relied extensively on the preamble and comments to the Indiana code, which were based on the ABA 2007 Model Code of Judicial Conduct (the Indiana preamble is identical to the model; the comments are not although they are similar).

Posted in Canon 4, Canon 5, Judicial Campaigns, Judicial Disqualification & Recusal, Judicial Selection | Leave a Comment »

Judicial Politics

Posted by graycynthia on Thursday, July, 9, 2009

Although the litigation such as that necessary to resolve the Senate race between Al Franken and Norm Coleman is fortunately extremely rare, it demonstrates the importance of having a non-partisan judiciary available to resolve such conflicts. Fortunately for Minnesotans, their legislature has declared that judicial elections should be non-partisan, and the Minnesota Supreme Court has implemented that decision by adopting a code of judicial conduct that prohibits judges and judicial candidates from endorsing political candidates and engaging in other partisan activity.  Therefore, none of the justices on the Minnesota Supreme Court had to recuse themselves because they had endorsed Franken or Coleman (although two had to recuse because they were on the state-wide canvassing board), and the majority of the highest court in the state was available to do the job for which they were elected – decide the most important legal issues for the people of the state.  Fortunately, a federal court recently rejected a challenge to the Minnesota endorsement clause so that, if a similar situation arises in the future, the same protections will apply.  Wersal v. Sexton, 607 F. Supp. 2d 1012 (District of Minnesota 2009).  The plaintiff in that case had argued that disqualification would protect judicial impartiality, but the court disagreed, focusing on the un-workability of recusal not in the rare case but “when a judge endorses an individual who is elected to a position where he or she is frequently a litigant.”

Wisconsin is not so fortunate, as a federal court there overturned the endorsement clause and other restrictions on partisan political activity even though judicial elections are supposed to be non-partisan by law.  Siefert v. Alexander, 597 F. Supp. 2d 860 (Western District of Wisconsin 2009).  The court believed the “gag order” was not “fooling anyone” because “many if not most judicial candidates have political lives before their judicial campaigns and often are easily identified as ‘Republican’ or ‘Democrat’ even if they do not explicitly run as such.” What the court fails to recognize is that by requiring judicial candidates to eschew party labels during the campaign, the code ensures that judicial candidates demonstrate their willingness to take on a new role and reject partisan loyalties and embrace judicial independence once on the bench.

Posted in Canon 4, Canon 5, Judicial Campaigns, Judicial Disqualification & Recusal | Leave a Comment »

Caperton Clarity

Posted by judicialethicsforum on Monday, June, 15, 2009

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

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

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

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

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

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

Posted by kswisher on Monday, June, 15, 2009

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

* * *

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

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

What a Reasonable Person “Might,” “Could,” and “Would” Do

Posted by judicialethicsforum on Wednesday, March, 25, 2009

The Comment to Canon 2 of the Code of Conduct for United States Judges defines appearance of impropriety as follows: “An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, *would* conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired.” (Emphasis added).
Ironically, that is a lesser standard for disqualification than is required under the Federal Disqualification Statute, 28 U.S.C. § 455, and under the Due Process Clause of the Constitution. The following is adapted from Understanding Lawyers’ Ethics (3d ed. 2004).
Section 455 says: “Any . . . judge . . . shall disqualify himself in any proceeding in which his impartiality *might* reasonably be *questioned*.” In addition to the plain meaning of the statute, the legislative history shows that disqualification is required when there is “any reasonable factual basis for *doubting* the judge’s impartiality.”
Also, as a matter of constitutional due process, a judge is required to recuse himself if there is “a *possible* temptation to the average . . . judge . . . which *might* lead him not to hold the balance nice, clear, and true. . . .” or if the circumstances “*might* create an impression of *possible* bias.”
Nevertheless, there is a tendency for some judges and commentators — and particularly for advocates opposing disqualification — to slip away from the statutory language, turning “might” into “could” or “would.” The differences are important. The word “might” is used to express “tentative possibility;” “could” is used to express “possibility;” while “would” connotes what “will” happen or is “going to” happen. Accordingly, the word “would” requires significantly more than a tentative possibility of doubt regarding a judge’s impartiality, and use of the word “would” therefore produces a subtle but substantial change in the meaning of the statute.
For example, when Justice Stephen Breyer was nominated for the United States Supreme Court, I argued against his confirmation. The reason was that Breyer, when sitting in the First Circuit, had written an opinion that could well have had a devastating impact on Breyer’s own financial well-being. I maintained that Breyer had therefore acted unethically in failing to recuse himself. Then White House Counsel Lloyd Cutler contended that reasonable people differed about whether Breyer’s impartiality in the case was questionable, and that Breyer therefore was not required to recuse himself.
That argument would have had force if the statute required disqualification only when a reasonable person *would* question the judge’s impartiality. In that event, if reasonable people disagreed about whether the judge’s impartiality is questionable, one could not say that a reasonable person *would* question it — only that she might or might not — and recusal would not be required. Under the statute, however, if reasonable people do disagree, then clearly a reasonable person might question the judge’s impartiality, and recusal is required.

That is, under § 455(a) a federal judge, or justice, can properly stay in a case only if no reasonable person *might question* the judge’s impartiality.

By: Monroe Freedman, Hofstra Law School

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

Supreme Court Hears Oral Argument in Caperton v. A.T. Massey Coal Co.

Posted by kswisher on Monday, March, 23, 2009


The Supreme Court recently released the transcript of the oral argument in the West Virginia disqualification case (see Justice for Sale?), which was argued on March 3, 2009.  Because, for example, Justice Kennedy seemed favorably inclined [see, e.g., Tr. at 33], I am cautiously optimistic for a five-to-four decision in favor of due process.  To read the full transcript, click here.  My favorite lines include:

§  JUSTICE STEVENS:  “We have never confronted a case as extreme as this before.  This fits the standard that Potter Stewart articulated when he said ‘I know it when I see it.’  (Laughter.)” 

§  COUNSEL FOR MASSEY COAL: “I understand the . . . concerns about having the [apparently biased] judge making the decision about whether recusal is required, but that is not the practice of this Court, and if it’s not the practice of this Court, I frankly doubt it’s unconstitutional.”

§  JUSTICE BREYER: “The debt of gratitude . . . isn’t the theory that underlies [the due process challenge], though it may in part. . . .  A normal human being also thinks, if I play my cards right, maybe [the substantial expenditure] will be repeated, and they’ll want to keep me in office.  And we have the fact of how it looks, and we don’t have a situation where the something like this is inevitable, where you appoint judges.”

§  JUSTICE SOUTER: “If one is going to go into that calculation, one is going to assume that in eight years, there’s going to be another three million dollars waiting to be spent.”

§  JUSTICE BREYER: “Call [the proposed due process standard] a ‘probabilty’ [of bias]; call it an ‘appearance.’  Use the language that you want, but put them together, and they spell ‘mother.'”

§  JUSTICE SCALIA: According to Justice Scalia’s rather trusting views of judicial elections, if someone were to contribute money to his hypothetical campaign, “that person contributed money to my election because he expected me to be a fair and impartial judge, and I would be faithful to that contributor only by being a fair and impartial judge.  That is showing gratitude.”



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

Elected Judges and Denial of Due Process

Posted by judicialethicsforum on Wednesday, March, 4, 2009

(The following is on judicial elections and due process, from Understanding Lawyers’ Ethics (3d ed. 2004).   I’m concerned that those on the court who are hostile to recusal (e.g., Justices Scalia and Breyer) will use the extreme facts of the W.Va. case to sharply limit the statutory and constitutional recusal requirement.)
The most important potential significance of White is the strong suggestion in the opinions of Justices O’Connor and Ginsburg (writing for a total of five justices) that no judge subject to reelection can decide a controversial case without violating due process.  As discussed earlier in this chapter [9: “The Impartial Judge”], due process is denied if there is a “possible temptation to the average . . . judge . . . which might lead him not to hold the balance nice, clear, and true. . . .”  There is substantial reason to believe that elective judges are influenced in controversial cases by the threat of being voted out of office.  Particularly in a case involving issues like the death penalty or abortion rights, therefore, there is a strong argument that a decision by such a judge violates the Due Process Clause of the Fourteenth Amendment.
Indeed, Justice O’Connor’s concerns ultimately go beyond the controversial case, to challenge the entire system of electing judges.  She concurs separately to express her objections to “judicial elections generally.”  Referring to the state’s claim of a compelling interest in “an actual and perceived … impartial judiciary,” she notes that “the very practice of electing judges undermines this interest.”  Defining impartiality as being free of any stake in the outcome of a case, she explains that when judges are subject to regular elections, “they are likely to feel that they have at least some personal stake in the outcome of every publicized case.”  That is, elected judges “cannot help being aware that if the public is not satisfied with the outcome of a particular case, it could hurt their reelection prospects.”  Moreover, even when judges succeed in overcoming their concern with voters’ displeasure, “the public’s confidence in the judiciary could be undermined simply by the possibility that judges would be unable to do so.”
O’Connor refers to a law review article that quotes former California Supreme Court Justice Otto Kaus’ statement that ignoring the political consequences of controversial cases is like “ignoring a crocodile in your bathtub.”  She also relies on an article that cites statistics indicating that judges who face elections are far more likely to override jury sentences of life without parole and impose the death penalty.
In addition, O’Connor discusses the pernicious effects of campaign fundraising in judicial elections, noting, for example, that the thirteen candidates in a partisan election for five seats on the Alabama Supreme Court in 2000 spent an average of $1,092,076 on their campaigns.  Not surprisingly, lawyers and litigants who appear before the judges are among the major contributors to judges’ campaigns, and “relying on campaign donations may leave judges feeling indebted to certain parties or interest groups.”
When lawyers and litigants appear to be buying influence with campaign contributions, the appearance of partiality goes beyond the highly publicized case, tainting any case in which money may have passed.  Thus, O’Connor’s ultimate due process challenge is to the entire system of judicial election of judges, in cases of both major and minor public interest.
Justice Ginsburg analyzes some of the Court’s most important cases requiring disqualification of state judges on due process grounds.  Her analysis provides three conclusions.  First, a litigant is deprived of due process where the judge who hears his case has a “direct, personal, substantial and pecuniary” interest in ruling against him.  Second, the judge’s interest is sufficiently “direct” if the judge knows that “his success and tenure in office depend on certain outcomes.”  Third, due process does not require a showing that the judge is biased in fact as a result of his self-interest.  Rather, the cases have “always endeavored to prevent even the probability of unfairness.”
Ginsburg’s immediate focus in White is on the judge who has made or implied a commitment to voters to decide cases a certain way, and who fears voter retaliation if she fails to deliver.  Her remarks, however, apply equally to any judge whose reelection may depend upon not offending voters in the next election.  Such a judge may be thought to have a direct, personal, substantial, and pecuniary interest in ruling against certain litigants, Ginsburg notes, “for she may be voted off the bench and thereby lose her salary and emoluments” if her decision displeases the voters.  Quoting The Federalist No. 79, she adds: “‘In the general course of human nature, a power over a man’s subsistence amounts to a power over his will.’”
The Chair of the ABA Commission on the 21st Century Judiciary[, Edward W. Madiera,] agrees.  “The commission found,” he has written, “that the greatest threats to the impartiality and independence of judges, whether real or perceived, are posed by the prospect of ouster from office based on the content of judicial decisions.”
Because states can no longer prevent judicial candidates from announcing views on legal and political issues, some states will very likely abandon judicial elections.  To the extent that they do not, a litigant in a case involving a controversial issue will have a strong argument that due process requires disqualification of any judge who is subject to reelection. 

By: Monroe Freedman, Hofstra Law School

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ABA Ethics Committee Remembers the “Other” Ethics Code

Posted by kswisher on Wednesday, February, 4, 2009

I presumably speak for the profession when I say that I generally hold the ABA Standing Committee on Ethics and Professional Responsibility (aka the Ethics Committee) in high esteem.  That said, when it recently revisited the Model Code of Judicial Conduct, it reminded me how rare those visits can be.  It appears that the Committee has directly addressed judicial ethics only two times in the last twenty-five years.  (I did not check prior to 1984.)  By any measure, then, the Code is suffering from a lack of attention.  Interestingly, the Ethics Committee even has an adjunct component dedicated to Code insight, the Judges Advisory Committee.  Interestingly as well, the only two opinions were both issued within the last two years.  That is cause for optimism, as it seems that the current Committee (although the roster has changed slightly) is more sensitive to judicial ethics problems. 

Your next question might understandably be — what problems managed to catch the Committee’s eye after all of these years?  The first is Formal Opinion 07-449, which addresses both the Model Rules and Model Code.  With respect to judges, the Committee concludes:

Pursuant to Model Code of Judicial Conduct Rule 2.11(A), the judge in . . . a situation [in which she is being represented in an unrelated matter by an attorney appearing before her] must disqualify herself from the proceeding over which she is presiding if she maintains a bias or prejudice either in favor of or against her lawyer.  This disqualification obligation also applies when it is another lawyer in her lawyer’s firm who is representing a litigant before her. However, absent such a bias or prejudice for or against her lawyer, under Judicial Code Rule 2.11(C), the judge may continue to participate in the proceeding if the judge discloses on the record that she is being represented in the other matter by one of the lawyers, and the parties and their lawyers all consider such disclosure, out of the presence of the judge and court personnel, and unanimously agree to waive the judge’s disqualification.

If a judge is obligated to make disclosures in compliance with Judicial Code Rule 2.11(C), refuses to do so, and insists upon presiding over the matter in question, the lawyer’s obligation of confidentiality under Model Rule 1.6 ordinarily would prohibit his disclosing to his other client his representation of the judge without the judge’s consent, rendering it impossible to obtain the client’s consent to the dual representation, as required by Model Rule 1.7(b). The lawyer’s continued representation of the judge in such a circumstance constitutes an affirmative act effectively assisting the judge in her violation of the Judicial Code, and thereby violates Model Rule 8.4(f). The lawyer (or another lawyer in the lawyer’s firm), in that circumstance, is obligated to withdraw from the representation of the judge under Model Rule 1.16.

The second opinion, Formal Opinion 08-452, is even more remarkable, in that it addresses only judicial ethics.  Although the opinion gives no clear cut answers, its conclusion is easy to summarize: “A judge who participates in fundraising activities on behalf of a court, including a ‘therapeutic’ or ‘problem-solving’ court, must limit the participation to activities permitted by Model Code of Judicial Conduct Rule 3.7(A).  The judge also must ensure that her conduct does not violate Judicial Code Rules 3.1 [general limitations on extrajudicial activities], 1.2 [promoting confidence in the judiciary], or 1.3 [avoiding the abuse of the prestige of judicial office].”  Perhaps the clearest answer is contained in Rule 3.7(A)(2), which permits direct solicitation for contributions “only when the persons being solicited are [a] members of the judge’s family or [b] other judges over whom the judge has no supervisory authority.”

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

Justice for Sale?

Posted by judicialethicsforum on Tuesday, January, 13, 2009

The Supreme Court has granted cert in Caperton v. A.T. Massey Coal Co., No. 08-22.  The official question presented puts the issue bluntly:

[Acting Chief] Justice Brent Benjamin of the Supreme Court of Appeals of West Virginia refused to recuse himself from the appeal of the $50 million jury verdict in this case, even though the CEO of the lead defendant spent $3 million supporting his campaign for a seat on the court — more than 60% of the total amount spent to support Justice Benjamin’s campaign — while preparing to appeal the verdict against his company.  After winning election to the court, Justice Benjamin cast the deciding vote in the court’s 3-2 decision overturning that verdict. The question presented is whether Justice Benjamin’s failure to recuse himself from participation in his principal financial supporter’s case violated the Due Process Clause of the Fourteenth Amendment.

It is difficult to conclude that the failure to recuse is anything but inexcusable (in addition to the Due Process Clause, see generally 1990 Canon 3E(1)(e) and 2007 Rule 2.11(A)), but to be fair, Chief Justice Benjamin has produced a lengthy defense of his refusal, which can be found here.  The Brennan Center has kindly posted the briefs in support of petitioner, including those of the ABA and Justice at Stake, all of which can be found here.  This destined-to-be watershed case is set for oral argument on March 3, 2009.  Stay tuned. 

Posted in Canon 2, Canon 3, Judicial Disqualification & Recusal | 2 Comments »

New Reports on Recusal and Disqualification in the Wake of White

Posted by kswisher on Wednesday, October, 29, 2008

The Brennan Center for Justice recently issued a fine paper on recusal standards, particularly in light of Republican Party of Minnesota v. White, 536 U.S. 765 (2002).  The paper (among other features) offers ten specific proposals, including peremptory disqualification, enhanced disclosure, and like the ABA, mandatory disqualification whenever a party appearing before the judge has contributed significantly to the judge’s campaign.  See Model Code of Judicial Conduct R. 2.11(A)(4)(2007).  Click here to review a copy, courtesy of the Center. 

Equally of interest, the (relatively) new Judicial Disqualification Project of the ABA Standing Committee on Judicial Independence has released an eighty-six page draft report, which thoroughly explores the history of disqualification and its current problems.  Professor Charles Geyh at IU – Bloomington, no stranger to judicial ethics, is the director of the project.  To review the draft report, click here.

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

Maiden Post: The Importance of Judicial Ethics

Posted by kswisher on Wednesday, July, 16, 2008

Judicial ethics is a curiously under-, and in many ways un-, explored field.  It could not be more important, however.  On its most important level (perhaps arguably), compare Brown v. Board of Education (good?), with Korematsu v. United States (evil?).  Compare as well Buck v. Bell (Holmes, J.) (upholding forced sterilization law on the basis of its perceived—now debunked—societal good), with Lawrence v. Texas.  Granted, judicial ethics is more commonly thought of by the more (seemingly) mundane rules embodied in (more or less from state to state) the Model Codes of Judicial Conduct, but these too are fascinating.  Take, as one randomly picked illustration, the judge who, during a death penalty case, allegedly engaged in an undisclosed romantic relationship with the prosecutor, yet the defendant, Charles Hood, received the death penalty.

There is more.  Judicial ethics is inextricably tied to enforcement, namely, judicial discipline, and equally tied to the propriety to sit, judicial disqualification/recusal.  This Forum, the first of its kind, takes on all three subjects — judicial ethics, discipline, and disqualification.  

Fortunately, judicial ethics offers us much room in which to disagree, respectfully of course.  These disagreements can range from the seemingly trivial (e.g., stock ownership) to the seemingly world-changing (e.g., Bush v. Gore).  Let’s discuss. 


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