Invigorating judicial disqualification ten potential reforms

Judicature

Volumn 92, Issue 1, 2008, Pages 26-33

  Sample, James ^a   Young, Michael ^a  

^a NEW YORK UNIVERSITY SCHOOL OF LAW   (United States)

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EID: 52149109085     PISSN: 00225800     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (37)

1. Drawing on Justice Kennedy's concurrence in White, courts that have invalidated canons regulating campaign speech, fundraising, or political activity have upheld canons mandating disqualification when impartiality might reasonablv be questioned. See, e.g., Indiana Right to Life, Inc. v. Shepard, 507 F.3d 545, No. 06-4123, 2007 WL 3120095, *5 (7th Cir. Oct, 26, 2007); Kansas Judicial Watch v. Stout, 440 F. Supp. 2d 1209 (D. Kan. 2006), appeal docketed No. 06-3290 (10th Cir. Aug. 17, 2006); Alaska Right to Life Pol. Action Comm. v. Feldman, 380 F. Supp. 2d 1080, 1083 (D. Alaska 2005) vacated, 504 F.3d 840 (9th Cir. 2007); North Dakota Family Alliance, Inc. v. Bader, 361 F. Supp. 2d 1021,1039 (D.N.D. 2005); Family Trust Fund of Ky. v. Wolnitzek, 345 F. Supp. 2d 672 (E.D. Ky. 2004).
2. Sometimes one hears the argument that disqualification rules concerned with minimizing the appearance of bias will have the perverse effect of distracting attention from more pressing issues of actual bias, of elevating appearance over reality. See, e.g., Alex Kozinski, The Real Issues of Judicial Ethics, 32 HOFSTRA L. REV. 1095 (2004). This line of argument, in our view, slights the instrumental value of avoiding the appearance of bias both for preserving public confidence in the judiciary (and in public institutions more generally) and, more basically, for rooting out actual bias that would otherwise be undetectable.
3. Systematic comparative research into the usage and efficacy of the various policies already in place is sadly lacking.
4. MONT. CODE ANN. § 3-1-804 (2005).
5. See Debra Lyn Bassett, Judicial Disqualification in the Federal Appellate Courts, 87 IOWA L. REV. 1213, 1254 (2002).
6. See RICHARD E. FLAMM, JUDICIAL DISQUALIFICATION: RECUSAL AND DISQUALIFICATION OF JUDGES § 3.8, at 76-79 (1996) (describing peremptory disqualification jurisdictions that require the filing of a timely motion, a supportive affidavit, and a certification of good faith in order for disqualification to be granted).
7. See Stuart Banner, Note, Disqualifying Elected Judges from Cases Involving Campaign Contributors, 40 STAN. L. REV. 449, 463-66 (1988). ("All fifty states and the District of Columbia require candidates for elective office to file reports disclosing all campaign contributions and, for contributions over a certain amount, the names of contributors.").
8. IOWA CODE § 602.1606 (2006); see also Iowa Code of Judicial Conduct Canon 3(D) (2007) (stating that instead of remitting or disqualifying himself/herself a judge may disclose the relevant information concerning disqualification to the parties and receive written consent to proceed as the adjudicator despite the potential conflict).
9. Mich. Code Judicial Conduct 3(C) (2007).
10. Recusal Survey, National Center for State Courts, Alaska Survey Response (2007) (on file with author).
11. Judges do have a general ethical obligation to disclose possible grounds for their disqualification. See FLAMM, supra n. 6, § 19.10.2, at 579. The ABA Model Code stipulates that "[a] judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification. Notice, however, that this stipulation appears only in the Commentary and is phrased in hortatory, not mandatory terms. Legally, litigants "cannot require an unwilling judge to disclose facts and opinions." John Leubsdorf, Theories of Judging and Judicial Disqualification, 62 N.Y.U. L. Rev. 237, 242 (1987).
12. See john Copeland Nagle, The Recusal Alternative to Campaign Finance Legislation, 37 HARV. J. ON LEGIS. 69, 87 (2003) (citing numerous examples); see also Brief of Amicus Curiae Public Citizen in Support of Reversal 1, Republican Party of Minn. v. White, 536 U.S. 765 (2002) (No. 01-521) (describing Public Citizen's unsuccessful challenge to Texas's system, "which allows large campaign contributions by lawyers and others with interests before the courts but does not require recusal of judges when contributors appear before them"). Professor Nagle notes that academia has sided squarely with the ABA on this issue: "Indeed, the scholarly opinion is just as unanimous that a campaign contribution should require a judge to recuse as the courts are agreed that recusal is unnecessary." Nagle, supra, at 88 (providing citations to scholarly critiques).
13. See Flamm, supra n. 6. § 6.4.1, at ch. 12 (citing recent empirical studies finding a significant correlation between campaign contributions and litigation success rates).
14. ABA MODEL CODE, Canon 2, R. 2.11(A)(4). Note that the language cited was adopted in 2007 and differs from its 1999 predecessor in that it includes the phrase "or the law firm of a party's lawyer." "Aggregate contributions" are meant to include both direct and indirect gifts made to a candidate. Id. at terminology.
15. Nagle, supra n. 12; see also Brief of Amicus Curiae Public Citizen in Support of Reversal 1, Republican Party of Minn. v. White, supra n. 12. Courts have been more sympathetic to disqualification motions when the campaign contribution at issue is particularly large, particularly close in time to the proceeding, or supplemented by additional campaign activity. See, e.g., MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332, 1338 n.5 (Fla. 1990) ("Although a motion for disqualification based solely upon a legal campaign contribution is not legally sufficient, it may well be that such a contribution, in conjunction with some additional factor, would constitute legally sufficient grounds for disqualification upon motion."); Pierce v. Pierce, 39 P.3d 791, 798 (Okla. 2001) (indicating that the size, timing, and manner of judicial campaign contributions may be relevant to the disqualification determination).
16. See FLAMM, supra n. 6, § 6.4.3, at 191-94.
17. See id. § 6.5, at 194-96. Some courts have denied disqualification when the moving party or her counsel did not merely provide political support to the judge's opponent, but in fact was the opponent. Id. § 6.5, at 195-96.
18. Ala. Code § 12-24-2(c) (Supp. 2000). Cf. Petition for a Writ of Certiorari 24, Jones v. Burnside, 127 S. Ct. 576 (2006) (No. 06-53) (identifying Alabama as the only state with a similar provision to the ABA's Canon 2, R. 2.11(A)(4); Peter A. Joy, A Professionalism Creed for Judges: Leading by Example, 52 S. C. L. REV. 667, 675 & n.28 (2001) (identifying Alabama as the only state that clearly requires elected judges to recuse or be disqualified when faced with major contributors and arguing that disqualification in these instances should be automatic).
19. See Val Walton, Suit Claims Governor, AG Not Enforcing Campaign Law, Birmingham News, Aug. 2, 2006, at 2B; see also Finley v. Patterson, 705 So. 2d 834, 835 n.1 (Ala. 1997) (Cook, J., concurring) (describing the enforcement of Ala. Code § 12-24-2 as being "in legal limbo" because it was not precleared under the Voting Rights Act); Brackin v. Trimmier Law Firm, 897 So. 2d 207, 230-34 (Ala. 2004) (Brown, J., statement of nonrecusal) (stating, "I am not aware of any opinions in which this Court has resolved the issue of the enforceability of §§ 12-24-1 and -2," and refusing to recuse despite contributions of more than $50,000 from an amicus curiae PAC affiliated with one of the parties).
20. Mississippi has added a provision to its Code of Judicial Conduct indicating that "[a] party may file a motion to recuse a judge based on the fact that an opposing party or counsel of record for that party is a major donor to the election campaign of such judge" and stipulating that such motions will be evaluated like any other recusal motion. MISS. CODE OF JUDICIAL CODUCT Canon 3E(2) (2002). As if to clarify how dramatically this provision falls short of the ABA's Canon 2, R. 2.11(A)(4), the official commentary notes that "[t]his provision does not appear in the ABA Model Code of Judicial Conduct." Id. Canon 3E(2) cmt.
21. In the Illinois race for Supreme Court at issue in Avery v. State Farm Mutual Insurance Company, for example, State Farm made no contributions to Karmeier, but individuals and entities closely associated with it contributed more than $1 million to his campaign.
22. Canon 2, R.2.11(C) ABA Model Code of Judicial Conduct appears to permit waiver when both parties agree to it. But requiring mutual consent perpetuates the potential for gamesmanship.
23. TEX. R. CIV. PRO. 18a(c) (2007).
24. See Maynard-Massey Flap Triggers Recusal Legislation, The Intelligencer / Wheeling News-Register, Feb. 1, 2008, http://www. theintelligencer.net/page/content.detail/id/38554.html?isap=1&nav=535.
25. Abimbola Olowofoyeku, Regulating Supreme Court Recusals, 2006 SING J. LEGAL STUD. 60, 69 (internal citations and quotations omitted). Recall that this objective standard is the centerpiece of modern American disqualification practice and has been codified into law nearly everywhere.
26. R. Matthew Pearson, Note, Duck Duck Recuse? Foreign Common Law Guidance & Improving Recusal of Supreme Court Justices, 62 WASH. & LEE L. REV. 1799, 1833-34 (2005), at 1833 (internal citations omitted).
27. Indeed, one might argue that a challenged judge's colleagues are not independent enough to rule on her disqualification motion, on account of the collegiality and reciprocity pressures that they will likely face in such situations. One might therefore prefer the use of outside arbiters instead. We find this idea intriguing and not necessarily outlandish, but we do not address it here because of the deep practical and possibly constitutional concerns that any such scheme would raise.
28. See Amanda Frost, Keeping Up Appearences: A Process Oriented Approach to Judicial Recusal, 53 U. KAN. L. REV. 531 560-63, 569-70, 588-90 (2005) (describing public reason-giving as a core tenet of Legal Process theory and recommending its incorporation into the practice of judicial disqualification).
29. See, e.g., COLO .R. CIV .PRO. 97 (2007) (requiring that "all other proceedings in [a] case shall be suspended until a ruling is made" on the disqualification motion (emphasis added)); COLO .R. CIV .PRO. 58 (2007) (explaining that all judgments, decrees, and orders must be entered in writing).
30. CAL. CIV. PROC. CODE § 170.3(c)(3) (West 2007).
31. See, e.g., Paul G. Lewis, Systemic Due Process: Procedural Concepts and the Problem of Recusal, 38 U. KAN. L. REV. 381, 407 (1990) (critiquing the abuse of discretion standard for not providing meaningful protection against judicial misconduct);
32. Jeffrey W. Stempel, Rehnquist, Recusal, and Reform, 53 BROOK L. REV. 589, 661-62 (1987) (same).
33. This problem has already received a great deal of attention at the federal level. See, e.g., Cheney v. United States Dist. Court, 541 U.S. 913, 915-16 (2004) (mem. of Scalia, J.); Laird v. Tatum, 409 U.S. 824, 837-38 (1972) (mem. of Rehnquist, J.); Ryan Black & Lee Epstein, Recusals and the "Problem" of an Equally Divided Supreme Court, 7 J. APP. PRAC. & PROCESS 75 (2005);
34. Note, Disqualification of Judges and Justices in the Federal Courts, 86 HARV. L. REV. 736, 748-50 (1973); Pearson, supra n. 26, at 1806, 1836-37.
35. In revising the Model Code, the ABA appears to have made some minor additions to the commentary on its disqualification provision, but much more could still be done (of note are comments two and six which clarify that the disqualification rules apply regardless of whether a motion to disqualify has been filed and elaborate on the meaning of 'economic interest,' respectively).
36. See Chief Justice Joseph E. Lambert, Contestable Judicial Elections: Maintaining Respectability in the Post-White Era, 94 KY. L.J. 1, 13 (2005) (summarizing the work of these committees in Alabama, Florida, Kentucky, and Ohio);
37. see also The Way Forward: Lessons from the National Symposium on Judicial Campaign Conduct and the First Amendment, 35 IND. L. REV. 649, 655 (2002) (recommending the creation of official and unofficial campaign conduct committees "to help assure appropriate campaign conduct").