Litigation

Groups Voice Support for Recusal Reform

By Peter Hardin

Warning that “public confidence” in fair, impartial courts “is indeed in peril,” the Justice at Stake Campaign and the Brennan Center for Justice have written national bar leaders to support efforts toward state court recusal reform.

A Supreme Court ruling in 2009 drew national attention to the importance of judges stepping aside from hearing a case, or recusing themselves, in certain situations. In that ruling, Caperton v. Massey, the Supreme Court declared that campaign spending can damage a litigant’s right to a fair trial, and it required a West Virginia Supreme Court justice to disqualify himself from an appeal involving a major campaign benefactor.

H. Thomas Wells Jr., then-president of the American Bar Association, applauded the ruling and announced the ABA would develop “a series of guidelines for courts to assess whether contributions to judges’ campaigns implicate the due process rights of parties appearing before them,” according to a Brennan Center blog post this week. The ABA convened a Standing Committee on Judicial Independence to write model rules.

A Standing Committee resolution has been on the agenda for an ABA House of Delegates meeting Monday, but it is expected to be removed for further deliberation. The two groups sent their letter, dated Thursday, to Stephen N. Zack, the ABA president, and William K. Weisenberg, chair of the Standing Committee. It urged inclusion of the following two principles in a recusal reform resolution:

“First, it is important to provide for review of recusal motions by neutral judges, so that a challenged judge doesn’t have the last and only word on whether to step aside. This would eliminate one of the most criticized features of recusal systems in many states and increase public trust in final decisions made in recusal cases. A large majority of Americans agrees that a neutral judge, not the judge who is being challenged, should have the last word on recusal motions.

“Second, the final ABA recommendation should recognize that because of judicial campaign spending by litigants or their attorneys, a judge’s impartiality might reasonably be questioned, and disqualification may be necessary.”

Bert Brandenburg, JAS executive director, and J. Adam Skaggs, counsel at the Brennan Center, said in the letter, “We consider ourselves friends of impartial courts, and do not believe that robust recusal standards in any way encroach on the independence of the judicial branch.”

“Indeed,” they wrote, “addressing public unease over soaring judicial election spending is in the direct interest of the thousands of honorable men and women who serve on state benches.”

The Brennan Center published in 2008 a menu of possible recusal reforms. More recently it has written a paper entitled “Promoting Fair and Impartial Courts through Recusal Reform,” identifying model rules that provide a blueprint for state implementation. The Brennan Center and the ABA are JAS partner groups.

Full post as published by The Gavel on February 11, 2011 (boomark / email).