Uncertainty in Law Circles Over New Rules for Judges

Uncertainty in Law Circles Over New Rules for Judges

By John Schwartz
The New York Times

June 10, 2009

Lawyers across the country said Tuesday that a Supreme Court ruling on conflicts of interest among elected judges could prompt a deluge of requests for judges to recuse themselves from cases. But judges predicted that few situations would involve conflicts serious enough for the new ruling to apply.

On Monday, the court ruled that judges must remove themselves from cases that involve people who donated huge sums to help them get elected. While judges and lawyers might disagree on the consequences, legal experts said that either way, scrutiny would increase.

“You’re going to see a much greater analysis put to the campaign contributions that elected judges get,” said H. Thomas Wells Jr., the president of the American Bar Association.

The court, in a 5-to-4 opinion written by Justice Anthony M. Kennedy, ruled that the Constitution requires judge to disqualify themselves from hearing a case when campaign spending by an interested party had “disproportionate influence” on a case that was “pending or imminent.”

The decision did not set detailed standards for recusal, but said the extreme facts presented in the case clearly crossed a line. In the case, Caperton v. A. T. Massey Coal Company, a coal executive had spent $3 million to help elect a justice of the West Virginia Supreme Court. The justice then voted twice to throw out a $50 million judgment against the executive’s company.

The court left many questions unanswered, inviting the states to sort out where the lines should be drawn to determine when recusal was appropriate. Some judges and legal analysts said the ruling would not have an enormous effect on judges, because contributions as large as the West Virginia ones were rare.

“I wouldn’t think you would find judges panicking” and saying “Whoo! I’d better go over my docket!” said Bradley A. Smith, chairman of the Center for Competitive Politics, a group that opposes campaign regulations on First Amendment grounds.

Mr. Smith called the ruling “sort of the Bush v. Gore of campaign finance law,” referring to the Supreme Court opinion that decided the 2000 presidential election. That ruling was written in a way intended to give it little value as a legal precedent.

Still, Mr. Smith added, if the first lower courts to apply the case give Caperton a broad reading, “then you would start to see the floodgates open.”

Lawyers, meanwhile, see opportunity. John Wesley Hall Jr., who has a practice in Little Rock, Ark., sees a future full of motions from lawyers like him demanding that judges step aside. Mr. Hall has filed such motions in the past, but said the new ruling “gives us an issue to argue” on constitutional grounds.

Some states are already reviewing where the line should be drawn. Wisconsin’s Supreme Court has announced that it will hold rule-making hearings in the fall on the influence of political contributions, based on petitions from the League of Women Voters and the Wisconsin Realtors Association.

To Mr. Wells of the bar association, the Caperton decision suggests that states should have tough standards on recusal like those proposed in the association’s model code of judicial conduct, including an “absolute dollar amount” for contributions to trigger recusal, determined state by state.

Has the proposal been broadly adopted?

“Not very,” Mr. Wells said. Just two states have gone in that direction.

Thomas R. Phillips, a former chief justice of the Texas Supreme Court, said the case showed the problems inherent in electing judges, a practice virtually unique to the United States.

Mr. Phillips, who filed a brief in the case on behalf of the Conference of Chief Justices, said states like Texas turned to judicial elections in the 19th century in part because political appointments were seen as corrupt. Those early races, he said, “were essentially money free — maybe a little whiskey at the polls.”

The world has changed since then, Mr. Phillips said, with money rising in importance. The best result of the case just decided would be “to reignite the national debate on how we choose our state judges,” he said.

Rebecca Love Kourlis, executive director of Institute for the Advancement of the American Legal System at the University of Denver and a former justice of the Colorado Supreme Court, noted that Arizona, California, Colorado and Utah appointed their judges but then held periodic elections to keep them on the bench.

“There’s a way to choose that makes a whole lot of sense,” Ms. Kourlis said, “and doesn’t get you into this political quagmire.”

Judges like Alabama’s chief justice, Sue Bell Cobb, said few cases would be likely to trigger the constitutional scrutiny set out by the Supreme Court in Caperton. Judges, Justice Cobb said, will still generally be guided by local canons of ethics.

But she suggested that there would be greater scrutiny after Caperton and said it would be “a good thing” because it will push judges to be more careful.

“All the court system has is the public’s respect,” Justice Cobb said. “If we lose the respect, we don’t have anything.”