Now that the election is over and lawyers’ inboxes no longer brim with invitations to fundraisers, it may be time to look again at what happens after the campaign, when the money is banked and the winners don their robes.
Specifically, suppose one side or its lawyers gave generously to the newly elected judge, hosted his fundraisers and bundled his many contributions. Then suppose the other side gave bupkis, or worse, supported the loser. Can the party on the short end of this stick seek recusal? Should it be able to do so?
The quick answer to the first question is no. Under Texas Rule of Civil Procedure 18b, recusal is required when a judge’s “impartiality might reasonably be questioned” or where she “has a personal bias or prejudice concerning the subject matter or a party.” But Texas courts long have held that campaign support provides no basis to infer bias or order recusal.
Thanks to the U.S. Supreme Court’s 2009 decision Caperton v. A.T. Massey Coal Co. Inc., a party now can compel recusal based on campaign support as a matter of due process. The Caperton rule only applies to extreme cases, however, and the decision has had no impact in Texas courts. Only six appellate decisions mention it, and none involves campaign-related recusal.
Caperton did note that “states may choose to adopt recusal standards more rigorous than due process requires.” Perhaps responding to that call, the Texas Supreme Court solicited the views of the Advisory Committee on whether to alter Rule 18b in light of the decision. But the committee voted in 2010 against recommending changes (though it favored adding commentary discussing campaign financing).
Maybe it’s time to reassess. Eleven states have revised their recusal rules since Caperton. According to a report on recusal reform last year by the Brennan Center for Justice at NYU Law School, “Promoting Fair and Impartial Courts Through Recusal Reform,” some states require recusal if contributions exceed a set amount: $50 in Utah, $840 in Arizona, $1,500 in California and $2,500 in New York.
Other states, including Iowa, Oklahoma and Washington, now mandate consideration of campaign contributions when assessing the appearance of impartiality. Tennessee and Georgia revised their rules earlier this year, and Illinois is considering changes.
The American Bar Association also is in the process of tightening Rule 2.11 of the Model Code of Judicial Conduct, which already provides for considering recusal if contributions exceed a certain threshold.
Texas Election Code §253.155(b) allows contributions up to $5,000 to judicial candidates running statewide or in districts over one million people. Contributions from members of a single firm can range up to $30,000, while committees together can spend up to $75,000. The limits increase if a candidate has a primary opponent.
These are hefty sums, well beyond the reach of the average litigant or even lawyer. As Justice Sandra Day O’Connor asked in “Judicial Independence and 21st-Century Challenges” in the summer 2001 issue of Delaware Lawyer: “How can people have faith in the system when such large amounts of money are used to influence the outcome of judicial elections?”
Studies diverge on whether campaign donations actually affect outcomes, but everyone agrees that the appearance of neutrality is just as important. “[T]he apparent incompatibility of asking parties for financial help while promising at all times to remain independent and impartial diminishes faith in the judiciary’s integrity,” said Texas Supreme Court Chief Justice Wallace Jefferson in his “Remarks on Constitution Day” on Sept. 17, 2010.
Texas therefore should consider joining the states that recently have incorporated consideration of campaign support into their recusal regimes to avoid the inevitable appearance of favoritism that occurs when a judge presides over a major donor’s case. Recusal reform offers a way to bolster trust in the elective system now, without more fruitless waiting on the Legislature.
The best of the new approaches are not recusal tripwires linked to specific contribution amounts but flexible standards allowing for evaluation of all factors that might create the appearance of partiality. These could include the size and timing of the contribution, its percentage of the total raised, independent expenditures, whether the opposing party also gave, and so on.
For example, a $5,000 contribution to a Supreme Court candidate who spent $1 million is not likely to be significant, but the same contribution to a district judge who spent far less and also raised a third of his war chest from the donor’s law firm might be.
As with all other recusal requests, the specific facts and context will control, and recusal likely will remain the rare exception. Nor could a party game the system and give to the judge to force his replacement; Rule 18b(e) already allows the other side to waive recusal.
One objection to basing recusal on campaign assistance is that current law limits contributions. How can a contribution be allowed under the Election Code and still give rise to an appearance of bias? The answer lies in recognizing that the Code and Rule 18b serve different purposes.
The Election Code enables candidates to raise enough money to run credible campaigns, while still compelling modest diversification in the sources of financial support. Recusal rules exist to ensure fairness in isolated cases.
The Election Code is one-size-fits-all and allows a party and its counsel to raise and give tens of thousands of dollars to the judge hearing their case. It is blind to campaign-related disparities between litigants in any one matter.
Updated and flexible recusal standards could account for this and guarantee the appearance of impartiality in specific litigation, while the Election Code will continue to regulate campaigns. Besides, deciding which judge sits in which case has always been a judicial prerogative. Texas elects its judges, so people have the right to support candidates they believe will improve the judiciary. But no one has the right to choose the judge in her own case.
Considering campaign support in recusal decisions would entail imperfect, case-by-case line drawing and won’t catch everything, such as independent spending from undisclosed sources. Courts will have to decide more motions, and some of these will be frivolous. Some donors might contribute less to avoid the threat of recusal in their cases.
Still, after taking a fresh look at the issue, the Texas Supreme Court might conclude these are prices worth paying to enhance basic public confidence in our legal system. As Felix Frankfurter wrote in 1954 in Offut v. United States, “[J]ustice must satisfy the appearance of justice.”