JUDICIAL DISQUALIFICATION THREE YEARS AFTER CAPERTON

Transcription

1 JUDICIAL DISQUALIFICATION THREE YEARS AFTER CAPERTON CLE Credit: 1.5 ethics Thursday, June 7, :10 a.m. - 11:50 a.m. French Room Galt House Hotel Louisville, Kentucky 1

2 A NOTE CONCERNING THE PROGRAM MATERIALS The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program, in dealing with a specific legal matter have a duty to research original and current sources of authority. Printed by: Kanet Pol & Bridges 7107 Shona Drive Cincinnati, Ohio Kentucky Bar Association 2

3 TABLE OF CONTENTS The Presenters... i Judicial Disqualification Three Years after Caperton... 1 Summary of Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009)... 1 Post-Caperton Caselaw... 5 Post-Caperton Changes to Codes of Judicial Conduct... 6 Post-Caperton Procedural Issues

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5 THE PRESENTERS Judge Roger L. Crittenden (Ret.) 518 Logan Street Frankfort, Kentucky (502) JUDGE ROGER L. CRITTENDEN (RET.) is Of Counsel with Caldwell, Caldwell & Caldwell PLLC in Lexington. He received his B.A. from Georgetown College and his J.D. from the University of Kentucky College of Law. Prior to becoming Of Counsel, Judge Crittenden served as Franklin County District Judge ( ), Circuit Judge ( ) and Senior Judge ( ). He was also a Legal Writing Instructor at the University of Kentucky College of Law from 1980 to Judge Crittenden is currently serving as Chair of the Kentucky Supreme Court Access to Justice Commission. He is a member of the Franklin County and Kentucky Bar Associations. Cynthia Gray American Judicature Society Center for Judicial Ethics 3304 North Broadway #190 Chicago, Illinois (773) CYNTHIA GRAY has served as Director of the Center for Judicial Ethics since 1990, where she writes and edits the Judicial Conduct Reporter, provides updates to the judicial conduct commissions and other organizations, and speaks frequently at judicial conferences. Ms. Gray is a graduate of Northwestern University School of Law. She clerked for Judge Hubert L. Will of the United States District Court of the Northern District of Illinois for two years and was a litigation attorney in two private law firms for eight years. i

6 Judge Anthony M. Wilhoit (Ret.) Legislative Ethics Commission 22 Mill Creek Park Frankfort, Kentucky (502) JUDGE ANTHONY M. WILHOIT (RET.) serves as the Executive Director of the Legislative Ethics Commission. He received his B.A. from Villa Madonna College, his LL.B. from the University of Kentucky College of Law and his LL.M. from the University of Virginia. Prior to joining the Legislative Ethics Commission, Judge Wilhoit served on the Kentucky Court of Appeals, beginning in 1976, and was appointed Chief Judge in He is a member of the Judicial Campaign Conduct Committee, Council on Governmental Ethics Laws, the Association for Practical and Professional Ethics and the Woodford County/Versailles/Midway Board of Ethics. ii

7 JUDICIAL DISQUALIFICATION THREE YEARS AFTER CAPERTON Cynthia Gray, Director American Judicature Society Center for Judicial Ethics I. SUMMARY OF CAPERTON V. A.T. MASSEY COAL CO., 556 U.S. 868 (2009) A. Background After a West Virginia jury found Massey Coal Co. liable for fraudulent misrepresentation, concealment, and tortious interference with existing contractual relations and awarded Caperton $50 million in damages, West Virginia held its 2004 judicial elections. Knowing the Supreme Court of Appeals of West Virginia would consider the appeal, Don Blankenship, Massey s chairman and principal officer, supported then- Judge Brent Benjamin for a seat on the West Virginia Supreme Court of Appeals, rather than Justice Warren McGraw, the incumbent justice seeking re-election. Blankenship contributed the $1,000 statutory maximum to Benjamin s campaign committee and donated almost $2.5 million to And For The Sake Of The Kids, a 527 political organization that opposed McGraw and supported Benjamin. Benjamin won by fewer than 50,000 votes. In the appeal, now-justice Benjamin denied the motions by Caperton to disqualify him from Massey s appeal based on Blankenship s campaign involvement. The court voted 3-2 to reverse the $50 million verdict. The U.S. Supreme Court granted certiorari on the question whether the Due Process Clause of the Fourteenth Amendment was violated by Justice Benjamin s denial of the recusal motions. B. U.S. Supreme Court Decision Reversing the West Virginia Supreme Court of Appeals decision, the United States Supreme Court held, in a 5-4 vote, that, where campaign contributions from the principal of one of the parties had a significant and disproportionate influence on the election of one of the justices on the state court, the risk of actual bias was sufficiently substantial to require that justice s disqualification under the Due Process Clause of the U.S. Constitution. 1. Majority opinion. Justice Kennedy wrote the majority opinion, which emphasized that it was not questioning Justice Benjamin s subjective finding that he was impartial or determining whether he was actually biased. The Court noted the difficulty of judges inquiring into their subjective motives and purposes in the ordinary course of deciding a case. 1

8 The judge inquires into reasons that seem to be leading to a particular result. Precedent and stare decisis and the text and purpose of the law and the Constitution; logic and scholarship and experience and common sense; and fairness and disinterest and neutrality are among the factors at work. To bring coherence to the process, and to seek respect for the resulting judgment, judges often explain the reasons for their conclusions and rulings. There are instances when the introspection that often attends this process may reveal that what the judge had assumed to be a proper, controlling factor is not the real one at work. If the judge discovers that some personal bias or improper consideration seems to be the actuating cause of the decision or to be an influence so difficult to dispel that there is a real possibility of undermining neutrality, the judge may think it necessary to consider withdrawing from the case. The difficulties of inquiring into actual bias, and the fact that the inquiry is often a private one, simply underscore the need for objective rules. Otherwise there may be no adequate protection against a judge who simply misreads or misapprehends the real motives at work in deciding the case. The judge s own inquiry into actual bias, then, is not one that the law can easily superintend or review, though actual bias, if disclosed, no doubt would be grounds for appropriate relief. In lieu of exclusive reliance on that personal inquiry, or on appellate review of the judge s determination respecting actual bias, the Due Process Clause has been implemented by objective standards that do not require proof of actual bias. The majority emphasized that not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge s recusal, but found this is an exceptional case. We conclude that there is 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 2

9 in the election, and the apparent effect such contribution had on the outcome of the election. The Court noted that the $3 million Blankenship contributed to unseat McGraw and replace him with Benjamin was disproportionate, eclipsing the total spent by all other Benjamin supporters, exceeding by 300 percent the amount spent by Benjamin s campaign committee, and exceeding by $1 million the total spent by the campaign committees of both candidates combined. Stating the question whether Blankenship s campaign contributions were a necessary and sufficient cause of Benjamin s victory was not the proper inquiry, the Court found that Blankenship s campaign contributions had a significant and disproportionate influence on the electoral outcome. And the risk that Blankenship s influence engendered actual bias is sufficiently substantial that it must be forbidden if the guarantee of due process is to be adequately implemented. The Court also emphasized the temporal relationship, stating it was reasonably foreseeable, when the campaign contributions were made, that the pending case would be before the newly elected justice. Although there is no allegation of a quid pro quo agreement, the fact remains that Blankenship s extraordinary contributions were made at a time when he had a vested stake in the outcome. Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when -- without the consent of the other parties -- a man chooses the judge in his own cause. And applying this principle to the judicial election process, there was here a serious, objective risk of actual bias that required Justice Benjamin s recusal. The majority rejected the arguments of Massey and its amici (and the dissenting justices) that a decision requiring recusal would result in a flood of recusal motions, stating the facts of the case are extreme by any measure and noting that most disputes over disqualification will be resolved by the code of judicial conduct. The Court concluded: It is true that extreme cases often test the bounds of established legal principles, and sometimes no administrable standard may be available to address the perceived wrong. But it is also true that extreme cases are more likely to cross constitutional limits, requiring this Court s intervention and formulation of objective standards. This is particularly true when due process is violated. 3

10 2. Dissenting opinions. The focus of the dissenting opinion written by Chief Justice Roberts, in which Justice Scalia, Justice Thomas, and Justice Alito joined, was the vagueness of disqualification on grounds of probability or appearance of bias. The new rule, it argued, did not create a judicially discernible and manageable standard and would inevitably lead to an increase in allegations that judges are biased, eroding public confidence in judicial impartiality more than an isolated failure to recuse in a particular case. For example, Chief Justice Roberts identified forty questions that will have to be determined now in cases involving campaign expenditures. The dissent concluded that limiting application of the holding to extreme cases was not a sufficient limit, arguing all future litigants will assert that their case is really the most extreme thus far. The dissent also disagreed that the case was extreme, noting that Justice Benjamin and his campaign had no control over how Blankenship s independent expenditures were spent, that large independent expenditures were also made in support of Justice Benjamin s opponent by an independent group that received large contributions from the plaintiffs bar, that Blankenship had made large expenditures in connection with several previous West Virginia elections, and that it was not clear that Blankenship s expenditures affected the outcome of the election. Justice Scalia s also argued in a separate dissenting opinion that the decision would erode rather than preserve public confidence in the nation s judicial system. What above all else is eroding public confidence in the Nation s judicial system is the perception that litigation is just a game, that the party with the most resourceful lawyer can play it to win, that our seemingly interminable legal proceedings are wonderfully self-perpetuating but incapable of delivering real-world justice. The Court s opinion will reinforce that perception, adding to the vast arsenal of lawyerly gambits what will come to be known as the Caperton claim. The facts relevant to adjudicating it will have to be litigated -- and likewise the law governing it, which will be indeterminate for years to come, if not forever. Many billable hours will be spent in poring through volumes of campaign finance reports, and many more in contesting nonrecusal decisions through every available means. A Talmudic maxim instructs with respect to the Scripture: Turn it over, and turn it over, for all is therein.... Divinely inspired text may contain the answers to all earthly questions, but the Due 4

11 Process Clause most assuredly does not. The Court today continues its quixotic quest to right all wrongs and repair all imperfections through the Constitution. Alas, the quest cannot succeed -- which is why some wrongs and imperfections have been called nonjusticiable. In the best of all possible worlds, should judges sometimes recuse even where the clear commands of our prior due process law do not require it? Undoubtedly. The relevant question, however, is whether we do more good than harm by seeking to correct this imperfection through expansion of our constitutional mandate in a manner ungoverned by any discernable rule. The answer is obvious. II. POST-CAPERTON CASE LAW A. In Citizens United v. Federal Election Commission, 130 S.Ct. 876 (2010), the dissent, written by Justice Stephens, argued that, in Caperton, the Court had accepted the premise that, at least in some circumstances, independent expenditures on candidate elections will raise an intolerable specter of quid pro quo corruption ; that Caperton underscores the old insight that, on account of the extreme difficulty of proving corruption, prophylactic measures, reaching some [campaign spending] not corrupt in purpose or effect, [may be] nonetheless required to guard against corruption and that it underscores that certain restrictions on corporate electoral involvement may likewise be needed to hedge against circumvention of valid contribution limits, that for-profit corporations associated with electioneering communications will often prefer to use nonprofit conduits with misleading names, such as And For The Sake Of The Kids, to conceal their identity as the sponsor of those communications, thereby frustrating the utility of disclosure laws, and that the consequences of today s holding will not be limited to the legislative or executive context. The dissent concluded: Perhaps Caperton motions will catch some of the worst abuses. This will be small comfort to those States that, after today, may no longer have the ability to place modest limits on corporate electioneering even if they believe such limits to be critical to maintaining the integrity of their judicial systems. In response, the majority distinguished Caperton by stating the remedy of recusal was based on a litigant s due process right to a fair trial before an unbiased judge..... Caperton s holding was limited to the rule that the judge must be recused, not that the litigant s political speech could be banned. B. At least in reported cases, there have been no decisions holding that a judge s disqualification was required based on the decision in Caperton. Appellate courts have easily distinguished Caperton, both in cases involving campaign contributions and cases relying on it when raising other grounds for disqualification. See, e.g., People v. Freeman, 222 P.3d 177 (Cal. 2010) (rumor defendant was harassing the judge s friend); 5

12 E.I. DuPont De Nemours & Co. v. Aquamar S.A., 24 So.3d 585 (Fla. Dist. Ct. App. 2009) (campaign contributions within statutory limits and with cumulative total of $4650); First Peoples Bank of Tennessee v. Hill, 340 S.W.3d 398 (Tenn. App. 2010) (chancellor was acquainted with some of the bank officers); In re Swenson, 244 P.3d 959 (Wash. App. 2010) (sentencing judge was involved twenty years earlier in an unrelated juvenile adjudication against defendant); United States v. Basciano, 384 Fed.Appx. 28 (2nd Cir. 2010) (judge was on hit list created by defendant following first trial). III. POST-CAPERTON CHANGES TO CODES OF JUDICIAL CONDUCT Ten state supreme courts have adopted new disqualification rules (or in one state an assignment rule) regarding campaign contributions that expressly or impliedly incorporate the decision in Caperton. A. Effective September 8, 2011, the Georgia Supreme Court amended the code of judicial conduct to require that a judge is disqualified when: [T]he judge has received or benefited from an aggregate amount of campaign contributions or support so as to create a reasonable question as to the judge s impartiality. When determining impartiality with respect to campaign contributions or support, the following may be considered: (i) amount of the contribution or support; (ii) timing of the contribution or support; (iii) relationship of contributor or supporter to the parties; (iv) impact of contribution or support; (v) nature of contributor s prior political activities or support and prior relationship with the judge; (vi) nature of case pending and its importance to the parties or counsel; (vii) contributions made independently in support of the judge over and above the maximum allowable contribution which may be contributed to the candidate; and (viii) any factor relevant to the issue of campaign contributions or support that causes the judge s impartiality to be questioned. Commentary: A judge shall recuse when the judge knows or learns by means of a timely motion that a particular party, party s lawyer, or law firm of a party s lawyer has within the current or immediately preceding election cycle of a judicial campaign for public election made aggregate contributions in an amount that is greater than the maximum allowable contribution permitted by law. 6

13 There is a rebuttable presumption that there is no per se basis for disqualification where the aggregate contributions are equal to or less than the maximum allowable contribution permitted by law. However, because the presumption is rebuttable, a judge who knows or learns by means of a timely motion that a party, party s lawyer, or law firm of a party s lawyer has within the current or immediately preceding election cycle of a judicial campaign for public election made aggregate contributions permitted by law, should weigh the considerations in subsection I (d) of Canon 3E in deciding whether recusal may be appropriate. Where a motion to recuse is based upon campaign contributions to the judge and the aggregate of contributions alleged would result in a rebuttable presumption that there is no per se basis for disqualification under the provisions of this Canon, any affidavit, it required to be filed by court rule must specify additional factors demonstrating a basis for disqualification pursuant to the considerations set forth in subsection I (d) of Canon 3E. In the absence of such additional facts, the affidavit shall not be deemed legally sufficient to require assignment to another judge under applicable court rules. In summary, Canon 3E provides that: (1) If contributions made to a judicial candidate or to that candidate s campaign committee are permitted by the law and do not exceed the maximum allowable contribution, then there is no mandatory requirement that the judge recuse. (2) If (a) a judicial candidate has knowledge of a contribution made to the candidate or the candidate s campaign committee that exceeds the maximum allowable contribution permitted by law, and, (b) after having such knowledge, the violation is not corrected in a timely manner (i.e., usually accomplished by returning the contribution), then the judge shall recuse. (3) If a judge has knowledge of a pattern of contributions made by a particular party, party s lawyer, or law firm of a party s lawyer that include contributions (a) made to a judicial candidate or to that candidate s campaign committee and/or (b) made to a third party attempting to influence the election of the judicial candidate, then the judge should consider whether recusal is appropriate in accordance with the considerations in subsection I(d) of Canon 3E. 7

14 The amendments also provide that the public filing of a Campaign contribution disclosure report or Financial disclosure statement shall be deemed a disclosure to all parties of the information contained therein. New terminology defines aggregate contributions as not only contributions in cash or in kind made directly to a candidate or a candidate s campaign committee within the current or immediately preceding election cycle but also all contributions made indirectly or independently with the knowledge that they will be used to influence the election of the judge; defines support as non-monetary assistance to a candidate; and adopts the definitions of campaign committee, contribution, campaign contribution disclosure report, financial disclosure statement, and election cycle from the Georgia Government Transparency and Campaign Finance Act of B. Effective May 3, 2010, the Iowa Supreme Court approved a new code that provides, in Rule 51:2.11(A)(4), that a judge is disqualified when: The judge knows or learns by means of disclosure mandated by law or a timely motion that the judge s participation in a matter or proceeding would violate due process of law as a result of: (a) Campaign contributions made by donors associated or affiliated with a party or counsel appearing before the court; or (b) Independent campaign expenditures by a person other than a judge s campaign committee, whose donors to the independent campaign are associated or affiliated with a party or counsel appearing before the court. C. In November 2009, the Michigan Supreme Court amended court rules regarding disqualification to provide, in Rule 2.003(C)(1)(b): Disqualification of a judge is warranted for reasons that include... the judge, based on objective and reasonable perceptions, has either (i) a serious risk of actual bias impacting the due process rights of a party as enunciated in Caperton v. Massey, 556 US 868; 129 S. Ct. 2252; 173 L. 2d. 2d 1208 (2009); or (ii) has failed to adhere to the appearance of impropriety standard set forth in Canon 2 of the Michigan Code of Judicial Conduct. D. In February 2010, the Missouri Supreme Court revised the code of judicial conduct to add a comment that states: A candidate for judicial office should consider whether his or her conduct may create grounds for recusal for actual bias or a probability of bias pursuant to Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009), or whether the conduct otherwise may create grounds for recusal under this Rule 2 if the candidate is elected to or retained in judicial office. 8

15 E. Effective January 1, 2012, the New Mexico Supreme Court adopted a new code that states in comments to the disqualification rule: [6] In Caperton v. Massey Coal Co., 129 S.Ct (2009), the United States Supreme Court held that the failure of a state supreme court justice to recuse when a party had made extraordinary and disproportionate contributions in support of the justice s candidacy in the previous election violated the opposing party s due process rights. The Court applied an objective standard and stated "that there is 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 or directing the judge s election campaign when the case was pending or imminent." Id. at The Court recognized that states may, in their codes of judicial conduct, set more stringent standards for disqualification than imposed by the due process clause. Id. at A judge s impartiality might reasonably be questioned under Paragraph (A) of this rule as a result of campaign contributions even though they are not so extraordinary and disproportionate as to violate a person s due process rights. The intent of the Code of Judicial Conduct is to insulate judges from this type of bias; Rules (D) and NMRA contemplate that a judge or judicial candidate not solicit or be informed of campaign contributions from attorneys and litigants. Despite these prohibitions, a judge may become aware of contributions made on behalf of the judge s campaign. [7] Excessive contributions to a judge s campaign by a party or a party s attorney may also undermine the public s confidence in a fair and impartial judiciary. An appearance of impropriety may result when attorneys or parties appearing before a judge generate large amounts of money for a campaign, either by contributing directly to the campaign, by contributing to political action committees supporting the judge, or by organizing large fund raisers. However, contributions made by attorneys to the campaigns of judicial candidates would not require a judge s disqualification in the absence of extraordinary circumstances. F. Effective July 1, 2012, the North Dakota Supreme Court adopted a new code of judicial conduct that includes a comment that states: [4] The fact that a lawyer in a proceeding, or a litigant, contributed to the judge's campaign, or publicly supported the judge in the judge's election does not of itself disqualify the judge. However, the size of contributions, the degree of involvement in the campaign, the timing of the campaign 9

16 and proceeding, the issues involved in the proceeding, and other factors known to the judge may raise questions as to the judge's impartiality under paragraph (A). See Rule 4.6. G. Effective April 15, 2011, the Oklahoma Supreme Court adopted a new code of judicial conduct, that includes a rule requiring disqualification when: The judge knows or learns by means of a timely motion that a party, a party s lawyer, or the law firm of a party s lawyer has within the previous four (4) years made aggregate contributions to the judge s campaign in an amount that a reasonable person would believe could affect the fairness of the judge s consideration of a case involving the party, the party s lawyer or the law firm of the party s lawyer. The judge should consider what the public perception would be as to such contributions affecting the judge s ability to be fair to the parties. Contributions within the limits allowed by the Oklahoma Ethics Commission will not normally require disqualification unless other factors are present. H. Effective July 1, 2012, the Tennessee Supreme Court adopted a new code of judicial conduct that includes a provision requiring disqualification when: (4) The judge knows or learns by means of a timely motion that a party, a party s lawyer, or the law firm of a party s lawyer has made contributions or given such support to the judge s campaign that the judge s impartiality might reasonably be questioned. Comment [7] The fact that a lawyer in a proceeding, or a litigant, contributed to the judge s campaign, or supported the judge in his or her election does not of itself disqualify the judge. Absent other facts, campaign contributions within the limits of the Campaign Contributions Limits Act of 1995, Tennessee Code Annotated Title 2, Chapter 10, Part 3, or similar law should not result in disqualification. However, campaign contributions or support judicial candidate receives may give rise to disqualification if the judge s impartiality might reasonably be questioned. In determining whether a judge s impartiality might reasonably be questioned for this reason, a judge should consider the following factors among others: (1) The level of support or contributions given, directly or indirectly, by a litigant in relation both to aggregate support (direct and indirect) for the individual judge s campaign and 10

17 to the total amount spent by all candidates for that judgeship; (2) If the support is monetary, whether any distinction between direct contributions or independent expenditures bears on the disqualification question; (3) The timing of the support or contributions in relation to the case for which disqualification is sought; and (4) If the supporter or contributor is not a litigant, the relationship, if any, between the supporter or contributor and (i) any of the litigants, (ii) the issue before the court, (iii) the judicial candidate or opponent, and (iv) the total support received by the judicial candidate or opponent and the total support received by all candidates for that judgeship. I. Effective January 1, 2011, the Washington Supreme Court adopted a new code of judicial conduct that provides in Rule 2.11(D): A judge may disqualify himself or herself if the judge learns by means of a timely motion by a party that an adverse party has provided financial support for any of the judge s judicial election campaigns within the last six years in an amount that causes the judge to conclude that his or her impartiality might reasonably be questioned. In making this determination the judge should consider: (1) the total amount of financial support provided by the party relative to the total amount of the financial support for the judge s election, (2) the timing between the financial support and the pendency of the matter, and (3) any additional circumstances pertaining to disqualification. J. Effective July 15, 2011, the Chief Administrative Judge of the New York State Unified Court System adopted an assignment rule ( 151.1) for cases involving contributors to judicial campaigns ( rules/chiefadmin/151.shtml#section151_1): (A) (1) No matter shall be assigned to a judge, other than in an emergency, or as dictated by the rule of necessity, or when the interests of justice otherwise require, if such assignment would give rise to a campaign contribution conflict as defined in section (B) of this Part. (2) An assignment in derogation of this Part, due to administrative error or oversight, shall not (a) diminish the authority of the assigned judge; (b) give rise to any right, claim or cause of action; (c) impose any additional ethical obligation upon the assigned judge; or (d) diminish the assigned judge s obligation to consider recusal in light of campaign contributions. 11

18 (3) Nothing in this Part shall abridge the right of a party to move for recusal of an assigned judge at any time, or limit the arguments or evidence that may be marshaled for or against such recusal motion (see, e.g., C[1] and D of this Part). (B) (1) Individual Contributions: For purposes of this Part, a campaign contribution conflict shall exist when (a) an attorney appearing as counsel of record in a matter before a judge, or appearing in the matter as co-counsel or special counsel to such counsel of record, or (b) such attorneys law firm or firms, or (c) a party in the matter individually has contributed $2,500 or more to such judge s campaign for elective office during the window period defined in Part 100.0(Q) of these Rules. (2) Collective Contributions: For purposes of this Part, a campaign contribution conflict shall exist when the sum of all contributions to a judge s campaign for elective office made during the window period defined in Part 100.0(Q) of these Rules by (a) an attorney appearing as counsel of record in a matter before such judge, and attorneys appearing in the matter as co-counsel or special counsel to such counsel of record, and (b) each such attorneys law firm or firms, and (c) each client of each such attorney in the matter totals $3,500 or more. (3) Term of Conflict (Conflict Period): (a) A contribution shall be considered for conflicts purposes under this Part for a period of two years commencing on the day that the State Board of Elections first publishes the report of such contribution; provided, that if the candidate receiving such contribution is not a judge at the time of such report, then such two-year period shall commence on the day that he or she first assumes judicial office. (b) If a person or entity makes more than one contribution to a candidate during such candidate s window period, as defined in Part 100.0(Q) of these Rules, then for conflicts purposes hereunder such contributions shall be totaled and treated as if made as a single contribution. In such cases, the conflict period for such contributions shall be extended to two years following the day on which the State Board of Elections publishes the report of the last of such contributions (unless paragraph (a) of this subsection requires a later date, in which case such later date shall govern). 12

19 (C) The Chief Administrator of the Courts shall: (1) publish periodically a listing or database of contributions and contributors to judicial candidates, as disclosed by public filings, in a manner designed to assist the identification of campaign contribution conflicts under this Part, as well as contributions which, while not causing a campaign contribution conflict under this Part, may be pertinent to a motion to recuse; (2) establish a procedure whereby parties may waive application of this Rule and permit assignment of a judge affected by a campaign contribution conflict; (3) provide for local administrative resolution of issues arising under this Part by local court clerks and administrative judges, with minimal involvement by assigned judges; and (4) with advice and consent of the Administrative Board of the Courts, take such further steps as may be necessary to give effect to this Part. (D) Notwithstanding any provision of this Part, a judge shall be mindful of the ethical responsibility to consider the propriety of recusal in any proceeding in which the judge s impartiality reasonably might be questioned in consequence of campaign contributions. (E) This Part shall take effect on July 15, 2011, and shall apply to all campaign contributions first reported as received on or after such date. IV. POST-CAPERTON PROCEDURAL ISSUES Much of the disqualification reform discussion post-caperton has been about the procedural rules for handling disqualification motions, for example, who should decide whether a judge is disqualified (particularly at the state supreme court level) and appellate review. A. In August 2011, the American Bar Association House of Delegates passed a resolution that urged states to establish clearly articulated procedures for: A. Judicial disqualification determinations; and B. Prompt review by another judge or tribunal, or as otherwise provided by law or rule of court, of denials of requests to disqualify a judge. The resolution also urged states in which judges are subject to elections of any kind to adopt: A. Disclosure requirements for litigants and lawyers who have provided, directly or indirectly, campaign support in an election involving a judge before whom they are appearing. B. Guidelines for judges concerning disclosure and disqualification obligations regarding campaign contributions. B. At the same time it adopted a new code of judicial conduct, the Tennessee Supreme Court amended new procedural rules for disqualifi- 13

20 cation motions, effective July 1, 2012, granting a petition filed by the Tennessee Bar Association ( The new rules provide that, after a motion to disqualify is filed, the judge whose disqualification is sought shall make no further orders and take no further action on the case, except for good cause stated in the order in which such action is taken and requires the judge to grant or deny the motion promptly by written order, repeating the new code requirement that if the motion is denied, the judge shall state in writing the grounds upon which he or she denies the motion. The rules also state that a judge who recuses himself or herself, whether on the Court s own initiative or on motion of a party, shall not participate in selecting his or her successor, absent the agreement of all parties.... The new rules provide for an interlocutory appeal as of right if a judge denies a motion to disqualify although failure to pursue an accelerated interlocutory appeal does not constitute a waiver of the right to raise the issue in an appeal at the conclusion of the case. Finally, the rules describe the procedure for seeking disqualification or recusal of an appellate judge or justice. If an appellate judge denies a motion to disqualify, the movant may file a motion for court review to be determined promptly by the other judges in that section of the court upon a de novo standard of review and, if that motion is denied, the movant has an accelerated appeal as of right to the Tennessee Supreme Court. If a motion is filed seeking disqualification of a justice of the Tennessee Supreme Court, the justice is required to act promptly and if the justice denies the motion, the movant, within fifteen days of entry of the order, may file a motion for court review, which shall be determined promptly by the remaining justices upon a de novo standard of review. C. The Michigan Supreme Court amended Rule of the state s rules of civil procedure to provide: In the Supreme Court, if a justice s participation in a case is challenged by a written motion or if the issue of participation is raised by the justice himself or herself, the challenged justice shall decide the issue and publish his or her reasons about whether to participate. If the challenged justice denies the motion for disqualification, a party may move for the motion to be decided by the entire Court. The entire Court shall then decide the motion for disqualification de novo. The Court s decision shall include the reasons for its grant or denial of the motion for disqualification. The Court shall issue a written order containing a statement of reasons for its grant or denial of the motion for disqualification. Any concurring or dissenting statements shall be in writing. 14