When it adopted a new code of judicial conduct in 2014, the Pennsylvania Supreme Court included a provision (Rule 2.11(A)(4)) requiring a judge to disqualify 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 or reimbursement for transportation, lodging, hospitality or other expenses is equal to or less than the amount required to be reported as a gift on a judge’s Statement of Financial Interest.

Noting that the “2017 judicial election cycle will be only the second time” that Rule 2.11(A)(4) will apply, the Pennsylvania Judicial Conduct Board recently issued a statement of policy regarding disqualification based on campaign contributions to address “a number of questions that have arisen since the rule was adopted.”  The Board explains that its policy provides guidance only, does “not have the force and effect of law,” and is not binding on members of the judiciary or the Board.

The executive summary of the policy states:

• When faced with a question of recusal or disqualification under Rule 2.11(A)(4), the nature of the inquiry is an objective one involving the public perception of large contributions and their effect on the judge’s ability to be impartial. If the amount of a contribution to a judicial candidate’s campaign raises a reasonable concern about the fairness or impartiality of the judge’s consideration of a case involving the contributor, disqualification is required.
• The focus of any inquiry under Rule 2.1(A)(4) is the contributions received by the campaign of a judge whose ability to preside is questioned.
• There is no amount specified in Rule 2.11(A)(4) over which disqualification is required.
• Regardless of proportional relationship to other contributions or the total amount raised, large contributions will raise reasonable concerns about the judge’s fairness based on the size alone and will trigger the assessment required under Rule 2.11(A)(4) and the Board will look unfavorably upon a judge’s strained views of the public perception of such large contributions.
• Disqualification under Rule 2.11(A)(4) is subject to informed waiver by the parties and their attorneys.
• A contribution of several thousand dollars will almost always require an analysis of whether disqualification is warranted; but such analysis may be avoided if the contribution is disclosed and the parties and their attorneys waive disqualification.
• Judges are not required to review their campaign finance reports to determine if they are disqualified, but that may be the prudent practice as judges may not remain purposely ignorant of campaign contributions in order to avoid compliance with Rule 2.11(A)(4).
• While there is no specific look-back period in Rule 2.11(A)(4), the effect of contributions will generally dissipate over time. The larger the contribution, the longer it will take to dissipate.
• Disqualification is not required under Rule 2.11(A)(4) simply because the amount of a contribution exceeds the amount that must be reported as a gift on the judge’s statement of financial interests.
• Contributions from several lawyers from the same law firm must be aggregated when conducting the assessment required by Rule 2.11(A)(4).

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Comment 4A to Rule 2.11 of the Arkansas code of judicial conduct provides:

The fact that a lawyer in a proceeding, or a litigant, contributed to the judge’s campaign, or publicly supported the judge in his or her election does not of itself disqualify the judge.  However, the size of contributions, the degree of involvement in the campaign, the timing of the campaign and the proceeding, the issues involved in the proceeding, and other factors known to the judge may raise questions as to the judge’s impartiality under paragraph (A).

Interpreting that comment, an Arkansas Supreme Court Justice recently denied a motion to disqualify her based on contributions to her 2014 campaign for the Court in which she was unopposed.  Robinson Nursing and Rehabilitation Center v. Phillips (November 10, 2016).  The Court as a whole had referred the motion to the justice “consistent with the principle that the decision to recuse rests in the discretion of the individual judge and with how this court has historically treated similar requests.”

The motion was filed in an appeal in a wrongful death case against a nursing home.  The plaintiffs’ disqualification motion had alleged that Michael Morton, one of the defendants, and nursing homes or other companies that he owns had contributed $40,000 to the justice’s campaign committee in 20 checks of $2,000 each in November 2013 and early 2014, and that that amount constituted 30% of her campaign’s total contributions of $134,700.  The justice noted, however, that the campaign received, in fact, $154,900 total and, as reflected in a campaign financial report, had returned $20,000 to Morton and his companies.  Therefore, the justice stated, the “analysis is whether the $20,000 in contributions the campaign retained in 2014 creates an appearance of impropriety for a case that will be before the court in 2017.”

The justice listed the factors from the comment to the Arkansas code:

1. the size of contributions;
2. the degree of involvement in the campaign;
3. the timing of the campaign and the proceeding;
4. the issues involved in the proceeding; and
5. other factors known to the judge.

She concluded, “under the first factor, the accepted contributions are insufficient to warrant disqualification in an unopposed race.”  She also stated, with respect to the second factor, that Morton and his companies had not played any other role in her campaign, such as hosting fund-raisers or coordinating activities with her campaign committee.

Applying factor three, the justice found that “the timing between the campaign and the current proceeding is a sufficient cooling-off period,” noting the committee had received the contributions between fall 2013 and early spring 2014, the matter was unlikely to be submitted to the Court before the spring of 2017, and the complaint had been filed in September 2015, “well after” she had taken the bench.  Under factor four, the justice noted that the plaintiffs did not contend that the issue on appeal (class certification) was an issue that should cause her to recuse.

Discussing factor five, the justice explained:

I note that I have recused from cases involving significant contributions following each of my campaigns over the past eight years until a sufficient cooling-off period passed.  I am treating this case and this contributor no differently.  Additionally, while Arkansas is a small state and there are occasions for judges to intersect with potential counsel and litigants, I assure appellees and their counsel that I do not have a social or business relationship with Michael Morton or any of the businesses the appellees list.

Finally, the justice concluded:

In all, considering these factors and the surrounding circumstances as well as my duty to sit, I find that it would not be proper to recuse from this case.  All judges have a duty to recuse when the situation warrants but we also have an equal duty to sit when the facts do not justify doing otherwise.  Injustice occurs when one makes the wrong decision either way, which is why I certainly did not make this decision lightly.  Injustice also would occur if litigants could manipulate the makeup of the court.

The justice notes that the Arkansas code states in a comment that to “reduce potential disqualification and to avoid the appearance of impropriety, judicial candidates should, as much as possible, not be aware of those who have contributed to the campaign” but that is not a mandatory rule.  Moreover, she explains, “by including campaign contribution specifics in the motion, the [plaintiffs] have made it impossible for me to attempt to abide by the suggested behavior.”

Click here for the Center for Judicial Ethics compilation of state disqualification rules regarding campaign disqualification.