In my first post, I want to thank Dean O’Hear for the invitation to serve as January’s Student Blogger of the Month, as well as my predecessors for the high bar they have set for me. It’s rare that someone willingly gives me a forum to opine on topics of my choosing, and I am glad (and honored!) to have this one.
A little over a month ago The Economist ran a special report on corruption in Russia, including a brief note about the mounting problems within the Russian judiciary. Although the latter article mostly contains interesting observations regarding prosecutorial abuse within the criminal justice system, I want to highlight one particular passage concerning civil litigation:
Things are not much better in corporate disputes. Large companies rarely trust in a judge’s unprompted decision. In commercial courts a judge often takes a bribe for reaching a speedy conclusion. All this helps to explain why the European Court of Human Rights is overwhelmed with Russian cases, and why large Russian companies seek justice in London. The Yukos case [described in the former link] showed that the courts have become part of the Kremlin machinery. The problem, says one Moscow lawyer, is that “the law in Russia is often trumped by money and always by high-level power.”
According to some, the same thing may be happening in the United States.
In Illinois, a party to a legal malpractice action has asked four justices on the Illinois Supreme Court to recuse themselves because they accepted campaign donations from the defendant law firm. Here in Wisconsin, Justice Ziegler has often been the target of recusal requests. In Wisconsin Realtors Ass’n v. Town of West Point, 2007 WI 139, Justice Ziegler agreed to do so at West Point’s request because the opposing parties had given Ziegler significant contributions during her campaign. And Justice Ziegler was the subject of significant criticism for failing to recuse herself after she authored the court’s decision in Wisconsin Dept. of Revenue v. Menasha Corp., 2008 WI 88, even though no one had asked her to do so. The critics grounded their condemnation on the fact that Wisconsin Manufacturers and Commerce, which had spent a significant amount in support of Justice Ziegler during the campaign, had filed an amicus brief in the case.
As Professor Esenberg has pointed out, the problem with recusal is that it often frustrates the will of the voters. In the Illinois case, if all the justices of whom recusal was requested were to do so, the court would be unable to render a decision. Similarly, the Wisconsin Supreme Court deadlocked in the Realtors case at 3-3 because of Justice Ziegler’s absence, resulting in a remand to the Court of Appeals.
Does a justice’s refusal to recuse in a case in which campaign supporters have an interest signal the descent of elected state judiciaries into courts of corruption, as some critics contend? It seems unlikely. First, such an outlook requires one to view campaign contributions essentially as bribes (I’ll get to whether they can be momentarily), and I have no reason to question the ethics of the members of the Wisconsin Supreme Court. (I do not, however, have sufficient knowledge of the members of the Illinois Supreme Court to form an opinion.)
Second, one assumption of the American legal system (and a necessity for any effective judiciary) is an impartial court. State and federal systems employ various mechanisms to guarantee this characteristic. For example, 28 U.S.C. § 455(a) requires a justice or judge to “disqualify himself in any proceeding in which his impartiality might reasonably be questioned,” and § 455(b) provides that a justice or judge must also recuse himself in the event of bias against a party or a financial interest in the case, along with other circumstances. Similarly, Wis. Stat. § 757.19 sets forth the circumstances under which a state judge or justice must disqualify himself or herself from an action or proceeding, including when “a judge determines that, for any reason, he or she cannot, or it appears he or she cannot, act in an impartial manner.” Adversely affected parties would make it difficult for a Wisconsin or federal judge or justice to get away with too much in light of these provisions.
Still, might there be a point at which a campaign contribution looks too much like a bribe to permit a justice to participate? In March, the U.S. Supreme Court will hear oral argument in Caperton v. A.T. Massey Coal Co. , a case in which the Massey’s CEO contributed three million dollars to the campaign of a justice who wound up winning a seat on the West Virginia Supreme Court. When the company appealed a fifty million dollar verdict against it, the justice declined recusal requests and joined a 3-2 majority in overturning the verdict. I’ll have another post on this case after I have had a chance to review the recently filed merits brief for the petitioner. Until then, I’ll leave open for thoughtful reflection the question of when it is appropriate for a judge or justice to recuse himself or herself and the consequences of compliance with, or denial of, recusal requests.