Litigation

Tracking the States? Response to ?Caperton?

By Peter Hardin

What’s the fallout for states so far from the Supreme Court’s landmark Caperton v. Massey decision? More jaw flapping than real action, concludes the National Law Journal in a comprehensive, but subscription-only article.

Here’s a scorecard from the states that boils down some of the best data from the article, headlined, “Judges slow to toughen up recusal rules.” New disqualification rules have been proposed in at least 10 states but adopted in only three:

• Only Michigan has made it harder for judges to refuse to step aside from hearing a case, permitting fellow justices on the state Supreme Court to vote to force a college with an apparent ethics conflict off a case
• In Nevada, the state’s highest court turned down proposals requiring a judge to step aside if he had gotten a campaign donation of $50,000 from a party in a case; or if he got 5% or more of his total campaign kitty from a litigant or law firm in a case. It revised judicial conduct rules to require that judges recuse themselves when their “impartiality might reasonably be questioned”
• The Wisconsin Supreme Court enacted a new rule saying campaign donations from a litigant do not require a judge’s recusal

The article reported that “no judges appear to have stepped aside because of Caperton,” a case that left considerable leeway for states to fashion their own recusal standards.  Last June,  the high court in Caperton required a West Virginia Supreme Court justice to recuse himself from a case involving a coal company executive who had spent $3 million to help the justice win election.

Another major Supreme Court decision may have complicated the issue for some states. In January, the court handed down a 5-4 ruling in Citizens United v. Federal Election Commission, permitting corporations to spend freely on ads to support or oppose candidates.

When the court says restraints on political spending infringe on free speech,  “I think a lot of people are wondering what the message is from the Supreme Court,” law professor Richard Painter of the University of Minnesota told National Law Journal. “You’ve got a real tension between these two decisions.”

One group urging more robust rules to make recusal decisions by individual judges reviewable, especially in light of soaring campaign spending on state supreme court races, is the Brennan Center for Justice, a partner of Justice at Stake.

Adam Skaggs of the Brennan Center told the Journal, “The fact that, in many states, the judge has the last work I think is probably the single biggest flaw” with recusal standards.

You can read about state recusal rule controversies in earlier Gavel Grab posts, and about the importance of recusal reform from Justice at Stake’s issues page on recusal. Learn more about Caperton from Gavel Grab.

Full post as published by The Gavel on February 18, 2010 (boomark / email).