Disqualification reform

Last week, the New York University Journal of Legislation and Public Policy, the Brennan Center for Justice, and the American Bar Association’s Center for Professional Responsibility jointly hosted a symposium entitled “Courts, Campaigns, and Corruption: Judicial Recusal Five Years After Caperton.”  There were many interesting discussions about the disqualification challenges facing state courts following not only Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009), but alsoCitizens United v. FEC, 558 U.S. 310 (2010).

However, there was little discussion about what reforms states have recently undertaken to their disqualification procedures and standards.

As several speakers mentioned, in August 2014, the American Bar Association House of Delegates did adopt a resolution urging states to adopt judicial disqualification and recusal procedures that “(1) take into account the fact that certain campaign expenditures and contributions, including independent expenditures, made during judicial elections raise concerns about possible effects on judicial impartiality and independence; (2) are transparent; (3) provide for the timely resolution of disqualification and recusal motions; and (4) include a mechanism for the timely review of denials to disqualify or recuse that is independent of the subject judge” and “to provide guidance and training to judges in deciding disqualification/recusal motions.”

The Conference of Chief Justices supported the resolution.

The Center for Judicial Ethics has been keeping track of code and rule revisions related to judicial disqualification based on campaign contributions in a document currently kept on the “learn more about judicial ethics” page of www.ajs.org (but soon to move to the http://www.ncsc.org). It notes that five states have adopted disqualification rules for campaign contributions based on a specific amount or percentage, while 10 state supreme courts have adopted new disqualification rules that do not have specific triggers, but that expressly or impliedly incorporate the decision in Caperton, often by listing factors a judge should consider when faced with a disqualification question based on campaign contributions. For example, it notes that, effective July 1, 2014, the Pennsylvania Supreme Court adopted a new code that includes a Rule 2.11A(4) requiring disqualification when:

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

The Center will continue to follow state reforms, both on disqualification standards and procedures in general and on rules related to campaign contributions specifically.  Follow this blog to keep up to date.

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