2 Years After Landmark Ethics Case, Courts Lag on Campaign-Cash Rules
Only 9 States Update Disqualification Standards in Response to Caperton
JUNE 6, 2011—Nearly two years after the Supreme Court’s Caperton v. Massey ruling on the influence of special-interest cash in the courtroom, most states have failed to adopt any reforms responding to threats identified in the landmark decision, the Brennan Center for Justice and Justice at Stake Campaign said today.
On June 8, 2009, the Supreme Court ruled that a West Virginia justice could not hear a case involving a coal company whose chief executive spent $3 million toward the judge’s election. The Caperton ruling gave states a green light for rigorous ethics standards, so that judges step aside from cases involving major campaign supporters.
But only nine states have adopted promising new disqualification rules, and the majority of state courts have failed to adopt any reforms, according to the two nonpartisan legal reform groups, which summarized state reforms in a chart at the end of this release. In addition, predictions that Caperton would open the floodgates to challenges against judges proved entirely unfounded, the groups said.
“Three in four Americans believe that campaign spending in judicial elections affects decision making in the courtroom,” said Adam Skaggs, senior counsel at the Brennan Center for Justice. “The public recognizes that reasonable people may question judges’ impartiality because of campaign spending. It’s time for state courts to recognize it, too — and adopt meaningful disqualification rules.”
“The public insists that courts be impartial, with no special favors for campaign spenders, so that everyone gets a fair day in court,” said Bert Brandenburg, executive director of Justice at Stake. “Courts have it in their power to update their rules, so there is no reason for continued delay.”
The Caperton case—in which Massey Coal CEO Don Blankenship spent $3 million to elect Justice Brent Benjamin while he was seeking to overturn a $50 million jury award—sparked national publicity on the potential conflicts caused by special-interest spending on judicial elections.
Citing the 14th Amendment Due Process Clause, which grants every litigant the right to an impartial trial, the Court said a “serious risk of actual bias” was created when Justice Benjamin cast the tie-breaking vote to overturn the jury’s decision.
Since Caperton, states have reacted in varied ways to the threat that judicial campaign spending poses to public confidence in the judiciary.
The groups said nine states—Arizona, California, Iowa, Michigan, Missouri, New York, Oklahoma, Utah, and Washington—adopted rules that, to varying degrees, address money on the judicial campaign trail. And promising new rules are pending in Georgia and Tennessee.
Two states ignored Caperton’s lessons and rejected stronger disqualification rules. Nevada, for example, rejected a proposal to mandate disqualification when a judge received a campaign contribution of $50,000 or more from a party appearing before her. Wisconsin weakened recusal standards with a rule that says campaign contributions or expenditures can never be the sole basis for recusal.
Most states have failed to take any meaningful action. In some cases, recommendations were made to the state supreme court, but formal rules have not yet been codified. In other states, bills have been introduced unsuccessfully in legislatures. In Caperton, U.S. Supreme Court justices noted that states can craft recusal rules stronger than what the Constitution requires, in order to protect the reputation of the courts.
On a separate issue, predictions that Caperton would cause a torrent of appeals have turned out to be false. A Justice at Stake researcher found only 30 appeals nationally in the last two years that relied on Caperton to request recusal of a judge. And of those 30 cases, only five related to campaign spending.
Public opinion polls show bipartisan concern over the ability of courts to deliver fair and impartial justice. In particular, polls show overwhelming public support for judges recusing themselves from cases involving major campaign supporters.
Recusal Reform in the States since Caperton v. Massey
||Recusal Reform Defeated
||Proposed legislation required recusal if a justice had received campaign contributions from a party or attorney in excess of $250. Bill died in 2009.
||In 2009, reform commission recommended mandatory recusal if a judge received campaign contributions of $50,000 or more from party or lawyer in previous 6 years. Nevada Supreme Court rejected proposal.
||Proposed legislation required recusal when judge received contributions totaling $1,000 over preceding 4 years. Bill died in committee in 2009.
||Proposals to trigger recusal at $1,000 or $10,000 thresholds rejected by sharply divided Wisconsin Supreme Court in 2010. The Supreme Court instead modified conduct rules to state that neither a lawful campaign contribution nor any level of independent political spending, standing alone, can disqualify a judge.
|| Recusal Reform Adopted or Pending
||Arizona’s Supreme Court amended conduct code, effective September 1, 2009, to require recusal if a party or lawyer, in previous 4 years, made contributions exceeding $840.
||Under new provision in civil procedure rules, a judge is disqualified if he or she has received contributions exceeding $1,500 from party or lawyer in preceding election (or in anticipation of upcoming election).
||Under a proposal that is pending final adoption, a judge would have to recuse if the judge received an aggregate amount of contributions or support that would create a question as to the judge’s impartiality, taking into consideration the amount, timing, and impact of the spending.
||Court rule adopted in May 2010 mandates disqualification when the “judge’s participation in a matter or proceeding would violate due process of law as a result of: (a) Campaign contributions . . . or (b) Independent campaign expenditures.”
||Michigan Supreme Court adopted rule in November 2009 that requires disqualification when a “judge, based on objective and reasonable perceptions, has . . . “a serious risk of actual bias impacting the due process rights of a party as enunciated in Caperton.”
||Missouri Supreme Court in December 2010 added comment to its conduct rules urging candidates for judicial office “to consider whether his or her conduct may create grounds for recusal . . . pursuant to Caperton.”
| New York
||Rule announced on February 15, 2011 provides that “no case shall be assigned” to a judge to whom party or lawyers donated $2,500 in preceding 2 years.
||Court rule adopted in December 2010 requires recusal when a judge, within previous 4 years, has received contributions from a party or lawyers “in an amount that a reasonable person would believe could affect the fairness of the judge’s consideration of a case . . . . The judge should consider what the public perception would be as to such contributions affecting the judge’s ability to be fair to the parties.”
||Pending proposal would impose a “flexible standard” that would disqualify judge when a party or lawyer has given such contributions or support to the judge’s campaign that the judge’s impartiality may reasonably be questioned, considering a range of factors including the amount and timing of the financial support, and the relation of the aggregate spending in support of the judge to the total spending in the campaign.
||As of April 1, 2010, a judge is disqualified if he or she has within the previous three years received more than $50 from a party or lawyers.
||Washington Supreme Court adopted rule effective January 1, 2011 that calls for recusal when a judge’s impartiality can reasonably be questioned based on a party’s contributions or independent spending, considering the total amount of support and the timing of the spending relative to the pendency of matter at issue.
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The Brennan Center for Justice
at New York University School of Law is a nonpartisan public policy and law institute that focuses on fundamental issues of democracy and justice. The Center works on issues including judicial independence, voting rights, campaign finance reform, racial justice in criminal law and presidential power in the fight against terrorism. Part think tank, part public interest law firm, part advocacy group, the Brennan Center combines scholarship, legislative and legal advocacy, and communications to win meaningful, measurable change in the public sector. For more information, visit www.brennancenter.org
The Justice at Stake Campaign
is a nonpartisan, nonprofit campaign working to keep America’s courts fair and impartial. Justice at Stake and its 50-plus state and national partners educate the public, and work for reforms to keep politics and special interests out of the courtroom—so judges can protect our Constitution, our rights and the Rule of law. For more about Justice at Stake, go to www.justiceatstake.org
, or www.gavelgrab.org
Charles Hall, Justice at Stake Campaign, 703-615-7642 (cell), 202-588-9454 (office); email@example.com.
Erik Opsal, Brennan Center for Justice, 763-234-5907 (cell), 646-292-8356 (office); firstname.lastname@example.org.