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Sunday, February 07, 2010

Courts - "States Weigh Judicial Recusals: Some Judges, Businesses Oppose Restrictions on Cases Involving Campaign Contributors"

The Jan. 26, 2010 WSJ has a story by Nathan Koppel that began:

More states are responding to a longstanding concern that elected judges risk the appearance of bias when they hear cases involving their campaign contributors. But recent examples from Wisconsin and Nevada show that some states are reluctant to force judges to disqualify themselves from cases solely because they have received large contributions.

The U.S. Supreme Court last year prompted states to tackle the issue of potential bias after it held in a case involving Justice Brent Benjamin of West Virginia that judges may need to recuse themselves when parties that have spent substantial sums to help elect the judges appear before them. The court, in a landmark opinion Thursday, eliminated limits on campaign spending by corporations.

About 10 states, including California and Texas, have proposed new judicial-disqualification rules in the wake of last year's Supreme Court ruling. But overhaul efforts have met resistance from judges and businesses who oppose restraints on judges' ability to raise campaign funds and on voters' rights to financially support favored candidates. Critics say an array of people would be less likely to donate to campaigns should these types of laws be put on the books.

"States are looking at recusal more seriously, but most are not yet creating more rigorous recusal practices," says Charles Geyh, a law professor at Indiana University who specializes in judicial-ethics issues.

The story concluded:
Last Thursday's landmark opinion [in Citizens United v. FEC] heightens the need for strict disqualification rules, says J. Adam Skaggs, an attorney with the Brennan Center for Justice at New York University School of Law, which is in favor of the public financing of judicial candidates. The ruling "will only exacerbate the trend of escalating, arms-race spending in judicial elections as corporations, unions and special interests seek to buy control of the bench," he says.

"If you are going to elect judges, you can't cut off their speech rights," counters Bradley Smith, chairman of the Center for Competitive Politics, which opposes campaign-spending limits. "The ability to raise money and get your message out is an element of speech."

Zach Lowe of The American Lawyer wrote Jan. 20, 2010 in an article titled "Sorting Out 'Caperton' in the Midwest." The article begins:
Wisconsin is about to join Michigan as the second state to sort out the thorny issue of recusal and judicial elections in the wake of the U.S. Supreme Court's decision in Caperton v. Massey last year, according to lawyers we spoke to on Tuesday and this piece in the Milwaukee Journal Sentinel.

And the two states are set to take very different strategies.

Indiana's appellate justices and judges are appointed, and are subject to a yes/no retention vote every 10 years. County judges, however, are for the most part, elected. The Indiana Code of Judicial Conduct, Rule 2.11, Disqualification, and Rule 4.4, Campaign Committees, particularly Comment #3, appear to be relevant.

Posted by Marcia Oddi on February 7, 2010 12:00 PM
Posted to Courts in general