JUDICIAL RECUSAL IN THE POST-CITIZENS UNITED WORLD
By: Bryan Mette, Volume 103 Staff Member
I. CITIZENS UNITED AND CAPERTON
In 2010, the U.S. Supreme Court struck down federal limits on independent expenditures by corporations holding that it was unconstitutional under the First Amendment to prohibit political speech based on a speaker’s corporate identity. In doing so, the Court reiterated once more that independent expenditures constituted political speech. As a result of overruling of prior precedent, the court’s decision struck down the federal statutory provision barring the expenditures of corporate funds for express advocacy. Intensely controversial to this day, the decision arouses ardent defense or biting criticism among supporters and opponents, respectively. And the fallout from it has prompted calls among critics to overturn the decision through a constitutional amendment.
In a case decided the year prior to Citizens United, the Court held—on a five-to-four vote—that the Due Process Clause required mandatory judicial recusal in certain circumstances. In Caperton v. A.T. Massey Co., the Court held that a litigant’s due process rights were violated when a judge participated in a case despite the opposing party’s expenditure of exorbitant sums of money on behalf of that judge’s campaign. Specifically at issue was the financial support of the judge’s campaign from Don Blankenship, the CEO, president, and chairman of the board of the appellee. Besides donating the maximum allowable contribution to the judge’s campaign, the actions that raised eyebrows were Blankenship’s $2.5 million contribution to a political action committee (PAC) called “And For The Sake Of The Kids” and $500,000 in independent expenditures to solicit donations and run television and newspaper advertisements. Both forms of financial support were on behalf of a candidate for the Supreme Court of Appeals of West Virginia.Blankenship’s preferred candidate won and the state supreme court—over calls for the disqualification of that judge—overturned a substantial verdict leveled against A.T. Massey. On appeal to the Supreme Court, Justice Kennedy, writing for the majority, held that the appellant’s constitutional rights were violated because the Due Process Clause requires recusal when an objective inquiry reveals there is an “unconstitutional potential for bias.” The Court further held that there was:
[A] serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent. The inquiry centers on the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.
The court did note, however, that “[n]ot every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge’s recusal.”
Responding to the Court’s decision in Caperton, many states made changes to judicial recusal rules to satisfy the guarantees of due process. The next section illustrates some common examples of these post-Caperton rules.
II. STATE JUDICIAL RECUSAL STANDARDS IN RESPONSE TO CAPERTON
In light of Caperton, it is useful to review state judicial recusal standards to examine how states responded to the Supreme Court’s views of when due process demands a judge’s recusal. Because the Court did note that not every campaign contribution requires recusal, states have had some latitude in how they structure recusal standards. This freedom has led to recusal standards which run the gamut from strict to lax. As the following three examples illustrate, judicial recusal standards vary widely among the states.
For example, New York rules prohibit a judge from sitting on a case if an attorney in the matter, that attorney’s law firm, or a party in the matter has individually contributed more than $2,500 to that judge’s campaign within two years.Notwithstanding this provision, New York also encourages judges “to consider the propriety of recusal in any proceeding in which the judge’s impartiality reasonably might be questioned in consequence of campaign contributions.”
Alabama has taken a slightly different approach with regards to judicial recusal. In 2014, the legislature passed, and the governor signed into law, updates to Alabama’s judicial recusal standards. Although not as stringent as New York’s absolute prohibition on hearing cases involving campaign contributors, Alabama’s recusal statute did institute a strong objective standard. That law requires recusal when a “substantial campaign contribution or electioneering communication” raised the specter that: “[a] reasonable person would perceive that the justice or judge’s ability to carry out his or her judicial responsibilities with impartiality is impaired” or “[t]here is a serious, objective probability of actual bias by the justice or judge due to his or her acceptance of the campaign contribution.” This law seemingly adopted Caperton’s objective risk of bias test. The law also created a rebuttable presumption of required recusal if a party’s contribution to a judge’s campaign exceeds a certain proportion of that judge’s total campaign contributions and it was reasonably foreseeable that the judge could hear a case involving the contributor. For example, a contribution in excess of ten percent of total campaign contributions in a statewide appellate race triggers the rebuttable presumption of recusal.
On the complete opposite end of the spectrum is Wisconsin which took a very different approach to the relationship between campaign contributions and independent expenditures, and a judge’s recusal. In 2010, on a contentious four-to-three vote, the Wisconsin Supreme Court amended the state judicial code to explicitly provide that, “[a] judge shall not be required to recuse himself or herself in a proceeding based solely on any endorsement or the judge’s campaign committee’s receipt of a lawful campaign contribution, including a campaign contribution from an individual or entity involved in the proceeding.” Although this provision is similar to language in Caperton, it what was what the Wisconsin Supreme Court did in regards to independent expenditures that seems to go against the prevailing wisdom for effective judicial recusal standards. The court also amended its judicial code to provide that:
A judge shall not be required to recuse himself or herself in a proceeding where such recusal would be based solely on the sponsorship of an independent expenditure or issue advocacy communication (collectively, an “independent communication”) by an individual or entity involved in the proceeding or a donation to an organization that sponsors an independent communication by an individual or entity involved in the proceeding.
The justices who voted for the provision justified it on the grounds that requiring recusal would burden the right to vote for judges.
III. THE EFFECT OF POST-CITIZENS UNITED CAMPAIGN SPENDING ON JUDICIAL RECUSALS
The Caperton court noted that its ruling “addressed an extraordinary situation where the Constitution requires recusal” and that the extreme facts of the case (to the best of its knowledge) have not occurred in another judicial race.Troublingly, however, this scenario is susceptible to replication post-Citizens United. With that decision allowing for unlimited independent expenditures in elections, including judicial races, business is booming in races for state supreme courts. According to the Brennan Center for Justice, in the 2015-16 election cycle more than $69.3 million was spent on state supreme court races and spending by outside groups constituted forty percent ($27.8 million) of that total. In supreme court races in North Carolina, West Virginia, Louisiana, Wisconsin, and Michigan, spending by outside groups actually exceeded direct candidate spending. A 2016 race in Wisconsin even saw expenditures by an outside group hit $2.6 million—more than the amount of independent expenditures at issue in Caperton. As the amount of money flooding into judicial elections continues to rise post-Citizens United, it seems more likely that Caperton-like cases will become more, not less, common. Assuming this trend continues, it is imperative for states to strengthen their judicial recusal standards to protect the due process rights of litigants. For example, a simple and easily applied rule would be to set a contribution or expenditure threshold which, if crossed, would automatically mandate recusal. The benefit of such a rule is twofold. One, it would be straightforward and easy to understand. Two, by providing a strict, objective, and bright-line rule, it would address the Caperton dissents’ criticism that the Court failed to provide clear guidance in its decision.
If states decline to implement robust recusal standards that comport with Caperton’s requirements, the Court should not hesitate to invalidate state court decisions made in disregard of litigants’ due process rights. For better or worse, the Court’s decision in Citizens United barred limits on the amount of independent expenditures permitted in judicial races by holding that this spending is political speech. But the Court was clear that this decision did not invalidate Caperton’s call for recusal when a party in a matter spends excessively on behalf of a judge’s campaign. States would do well to ensure their judicial recusal rules comport with this demand, lest they run afoul of their duty to ensure due process is satisfied. Failure to do so weakens core constitutional guarantees and undermines confidence in the impartiality of judges.
- Citizens United v. FEC, 558 U.S. 310, 365 (2010).
- Id. (overruling Austin v. MI State Chamber of Commerce, 494 U.S. 652 (1990).
- See e.g., Christopher C. Horner, In Support of Citizens United, Against Targeting Political Speech, The Hill (Feb. 12, 2015), https://thehill.com/blogs/congress-blog/politics/232535-in-support-of-citizens-united-against-targeting-political-speech; The ACLU and Citizens United, https://www.aclu.org/other/aclu-and-citizens-united (last visited Nov. 21, 2018).
- See generally, Move To Amend, https://movetoamend.org/ (last visited Nov. 21, 2018) (expressing support for amending the Constitution to “firmly establish that money is not speech, and that human beings, not corporations, are persons entitled to constitutional rights”).
- Cf. Democratic Party, 2016 Democratic Party Platform 2 (2016), https://democrats.org/wp-content/uploads/2018/10/2016_DNC_Platform.pdf (calling for the “overturn [of] the disastrous Citizens United decision”).
- Blankenship decided to support a candidate challenging a sitting state supreme court justice because his company was appealing an adverse ruling that it had received in a state court case. If A.T. Massey was successful in its appeal before the state supreme court, it stood to avoid a $50 million verdict that a West Virginia jury had awarded against it. The majority of justices on the state supreme court—including Blankenship’s preferred candidate—overturned the verdict on appeal. Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 873 (2009).
- This is the highest appellate court in West Virginia.
- Id. at 873–74.
- Id. at 874.
- Id. at 881 (internal quotation marks omitted).
- Caperton, 556 U.S. at 884.
- N.Y. Comp. Codes R. & Regs. tit. 22, § 151.1 (2018).
- N.Y. Comp. Codes R. & Regs. tit. 22, § 151.1(D) (2018).
- H.R. 543, 2014 Leg., Reg. Sess. (Ala. 2014).
- Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 884 (2009).
- Wisconsin Supreme Court Rule 60.04(7).
- Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 884 (2009)
- Wisconsin Supreme Court Rule 60.04(8).
- See In the Matter of Amendment of the Code of Judicial Conduct’s Rules on Recusal, 2010 WI 73, ¶ 11 (“We elect judges in Wisconsin; therefore, judicial recusal rules have the potential to impact the effectiveness of citizens’ votes cast for judges. Stated otherwise, when a judge is disqualified from participation, the votes of all who voted to elect that judge are canceled for all issues presented by that case. Accordingly, recusal rules. . .must be narrowly tailored to meet a compelling state interest.”). But see Patrick Marley, Wisconsin Supreme Court Rejects Recusal Changes When Campaign Donors are Litigants, Milwaukee J. Sentinel (Apr. 20, 2017), https://www.jsonline.com/story/news/politics/2017/04/20/wisconsin-supreme-court-weighs-recusal-rules-when-campaign-donors-litigants/100644698/ (quoting Justice Shirley Abrahamson regarding tighter judicial recusal rules) (“I see nothing in the Wisconsin Constitution or the U.S. Constitution that says that this court can’t make reasonable recusal rules.”).
- Caperton, 556 U.S. at 887.
- See Citizens United v. FEC, 558 U.S. 310, 360 (2010) (“Caperton’s holding was limited to the rule that the judge must be recused, not that the litigant’s political speech could be banned.”)
- Alicia Bannon et al., Brennan Ctr. for Justice, Who Pays for Judicial Races? 5 (2017), https://www.brennancenter.org/sites/default/files/publications/Politics_of_Judicial_Elections_Final.pdf.
- Wisconsin Democracy Campaign, Wisconsin Supreme Court Finance Summaries, https://www.wisdc.org/follow-the-money/nonpartisan-candidates/supreme-court-finance-summaries (last visited November 20, 2018).
- See supra Section II (describing New York’s judicial recusal rule).
- See Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 893 (2009) (Roberts, C.J., dissenting) (arguing that the Court “fail[ed] to provide clear, workable guidance for future cases”); Id. at 902–03 (Scalia, J., dissenting) (arguing the Court’s decision would result in uncertainty).
- Citizens United, 558 U.S. at 360.
- See id.