Just When Should A Judge Recuse or Disclose?

Since the decision in Caperton v. A. T. Massey Coal Co., 129 S. Ct. 2252 (2009), there has been heightened interest in judicial recusal, but it is mostly driven by concerns about when judges should disclose potential conflicts or recuse. Participating in democracy by voting has always been deemed appropriate in the United States. Until recently, judges in Canada did not vote.  Speaking out about the political issues of our time makes many judges and judicial ethicists nervous, but it does happen. Judge Posner of the Seventh Circuit is prolific in his writings, and some of his commentary is far afield from traditional notions of advocating issuesthat affect the administration of justice. Regardless of whether you agree with him or not, Judge Posner is a very respected judge.

So if voting by judges is ok, what about signing recall petitions? That is the issue presented in Wisconsin.

MADISON – The Republican Party of Wisconsin on Wednesday filed a complaint against Dane County Circuit Court Judge David Flanagan with the state Judicial Commission, a party spokesman confirmed.

Judge Flanagan granted a temporary injunction this week halting the implementation of Wisconsin’s voter identification law, but it was learned soon afterward that Flanagan had signed a recall petition against Governor Walker.

“The Republican Party is requesting that a full investigation be conducted into the failure of Judge Flanagan to maintain the appearance of impartiality in the Voter ID case before his court,” Republican Party Communications Director Ben Sparks said.  “Governor Walker is listed as a defendant in the case, and by signing a petition to recall the Governor, Judge Flanagan made his bias clear.” 

And what about campaign contributions?

The ABA Journal reported on the ABA Midyear Meeting which hosted a public hearing on the issue of proposed changes to its model ethics rules, including requirements that law firms report their attorneys’ donations to judicial election campaigns and on how judges should use such information when deciding whether to recuse themselves. Justice at Stake’s Matthew Berg reported that his organization, in partnership with the Brennan Center for Justice at New York University School of Law, found that 83% of Americans believed that campaign contributions have a great deal or some influence on how judges make their decisions.  Almost everyone at some level will acknowledge that statistics like this suggest that the legitimacy of judicial decision making in the United States is imperiled but recognizing the issue and agreeing on the solution are two far different things.  

The current ABA Model Rules state that judges should recuse themselves when they receive contributions over a set amount to be determined by each state upon adoption of the Model Rules. A proposed change would instead require recusal when contributions can be considered “substantially important to the judge’s most recent campaign.” The ABA Journal also reported that:
“The proposal would also create a rebuttable presumption that judges know ‘the amount, source and value of direct and indirect campaign contributions’ if they are matters of public record and reasonably available.”
Another proposed change to a model Supreme Court rule which would require law firms to report information on judicial campaign contributions by their lawyers and employees to their state’s supreme court. There are some who suggest that the effect  of some of these approaches will make raising money ethically problematic in those jurisdictions where like it or not the law provides for judicial elections. Moreover with the advent of independent expenditures not all of which disclose who the donors are the rebuttable presumption is simply wrong. Judges or candidates may have a rebuttable suspicion at best. 



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