We spent some time at Friday’s Wisconsin Supreme Court conference discussing the court’s consideration of certain rules related to recusal. This is my take: I think the state supreme court seems to have gotten it right in rejecting a proposed rule changes advanced by the League of Women Voters and retired Justice William Bablitch and in adopting changes advanced by WMC and the Wisconsin Realtors Association. This is not to say that the latter two rules could not be improved. I think they can be.
The LWV proposal was always a nonstarter. It would have required recusal whenever a party or a lawyer in a case had made a contribution in excess of $1000.00 or engaged in a “mass communication” on behalf of a judicial candidate. A mass communication could have consisted of as few as 50 phone calls, letters or e-mails. That would have made it impossible to raise a meaningful sum of money in judicial campaigns in all but the smallest counties. It was a massive assault on public participation and it is proposals like this that have rendered groups like Common Cause, the LWV and the WCD largely irrelevant in making public policy.
A proposed amendment by former Justice William Bablitch was more reasonable. It would have required recusal for direct or indirect contributions amounting to $10,000or more(cash or in kind) by an attorney or party with a direct or indirect interest in the case.
I think this still goes too far – particularly in large counties and definitely for state wide races. Because it applies to “in kind” expenditures, I would think that it would require recusal for any significant GOTV effort or any significant communication of an endorsement by an advocacy organization. It would, again, make it extremely difficult for their to be significant public participation in judicial elections and would strongly tilt the playing field in favor of incumbents.
This is not to say that a $10,000 contribution or expenditure might not create a circumstance in which recusal is appropriate. It might – particularly in a circuit court race. But I don’t think it is fair to say that such a contribution would <em>always</em> create a potential for bias such that recusal should be warranted notwithstanding a judge’s subjective determination that she can decide the matter impartially.
But the largest problem, I think, is the suggestion that an “indirect interest” might create cause for recusal. While I would be reluctant to say that can never be so, I am concerned that – without further definition – it may be read to imply a broad duty to recuse based upon supporter’s ideological interest. Without getting into the details, this might be at odds with the what I believe to be the best application of first amendment jurisprudence to this area of the law, i.e., that the predispsotion to a particular legal position is not improper bias.
Justice Bablitch himself conceded that the term “indirect support” was problemantic and in need of further definition. But I think there is a problem with the endorsement of recusal standards that read more broadly than they can or should be applied. They permit unwarranted attacks on the legitimacy of the courts and the integrity of judges.
And that brings us to the rule changes that the Court did adopt. They most certainly do not amount to the Court “thumbing its nose” at the United States Supreme Court decision in Caperton. Although they might be improved, I think that the are properly read as perfectly consistent with that decision. They do not mean that contributions and independent expenditures can never create a potential for bias such that recusal is in order.
Rather, they make clear that recusal cannot be required “solely” due to lawful endorsements, contributions and independent expenditures. That seems right to me and saying so may have been necessary given some of the irresponsible calls for recusal made by groups like the WDC and OWN. The idea that Annette Ziegler ought to have recused herself because WMC filed an amicus brief in a case was wholly without merit and would have created an unworkable precedent.
I don’t think that the rule means that contributions and expenditures are to be ignored in assessing a question of recusal or that there cannot be circumstances in which they do create a potential for bias in which recusal is necessary. But the mere fact that contributions and expenditures have been made cannot, without more, require recusal.
Having said that, it’s not clear to me that the adopted rules could not be improved. They could be clarified to, for example, more clearly state what, at least in my view, they are intended to mean (e.g., making clear that they do not say lawful expenditures can never warrant recusal). They might be extended to offer more guidance. But they are, I think, better rules than the alternatives before the court.
Cross posted at Shark and Shepherd
Professor Esenberg,
Great post. I had planned a similar one, but I am happy to compress my thoughts into a comment since you’ve gotten things started. My conclusion is different from yours,though, in that I am afraid there may well be a constitutional problem with the rule, at least insofar as it applies to pending cases. You wrote that the Court is not “thumbing its nose” at Caperton, and I certainly imply no such intent. But you also point out that the rule “make[s] clear that recusal cannot be required ‘solely’ due to lawful endorsements, contributions and independent expenditures.”
This seems reasonable to me, as it does to you. But I do not think it is consistent with Caperton (and I note at the outset that I make no claim here that Caperton was rightly decided). In that case, there was no allegation that the donor (Blankenship) had any improper influence over or relationship with the Justice (Benjamin), other than the perceived influence of his overwhelming financial support of Justice Benjamin’s campaign. In short, the case was “solely” about financial campaign support, and nothing more. And the Court concluded that recusal was required after applying the following test:
“[T]here 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 in the election, and the apparent effect such contribution had on the outcome of the election.”
It seems to me that if we transport the same facts to present-day Wisconsin, a hypothetical Justice would be required to recuse herself under Caperton, but not under the Wisconsin Supreme Court’s new rule. What if that hypothetical Justice chose not to recuse?
I am sorry to say I cannot agree with much of Professor Esenberg’s post at all.
Professor Esenberg equates raising “meaningful sums of money” in judicial campaigns with “public participation” in them. He writes that efforts to rein in such fund raising are a “massive assault on public participation”. This is a red herring. There are few people who have sufficient discretionary funds to give $1000 to political campaigns, much less the “more reasonable” $10,000.
Professor Esenberg also wrote that stiff limits “would … strongly tilt the playing field in favor of incumbents.” This is another red herring. There are ways to improve a challenger’s chances in judicial elections without resorting to bribing both candidates and inciting scorched-earth, media-driven campaigns. Nor is public funding necessary. All that is required is some imagination. We used to be able to do this cleanly and without big money. Why can’t we again?
I have always understood Professor Esenberg to be a proponent of judicial restraint (predicated on a healthy distrust of judicial discretion). But I must have been mistaken because here he tells us that we can trust judges to decide whether to act against their self-interest. He suggests we should trust judges’ “subjective determination that she can decide the matter impartially.” Where significant amounts of money are involved in what is supposed to be a just and impartial decision, suspicion of improper influence is reasonable and warranted. The danger of abuse of discretion in any matter becomes greater when large amounts of money are involved.
Professor Esenberg also writes that he does not “think it is fair to say that such a contribution [$10,000] would always create a potential for bias.” Except in politics, I cannot think of any place in life where a “gift” of $10,000 would NOT ALWAYS create a potential for bias.
This is especially problematic when a decision to recuse will directly impact a Judge’s ability to raise funds in the future. To voluntarily recuse is to say you cannot be bought; in which case there is no point in giving you more money. There are always other candidates.
Professor Esenberg laments that “recusal standards that [are] read more broadly than they can or should be applied … permit unwarranted attacks on the legitimacy of the courts and the integrity of judges” This concern is misplaced. The First Amendment permits unwarranted attacks on the legitimacy of courts, the integrity of judges and pretty much anything else. What should concern us is weak and narrowly construed rules which give SUBSTANCE and VALIDITY to attacks on judicial integrity.
Professor Esenberg writes that the biggest problem is “the suggestion that an ‘indirect interest’ might create cause for recusal. … I am concerned that … it may be read to imply a broad duty to recuse based upon supporter’s ideological interest … that the predisposition to a particular legal position is … improper bias.”
This I believe is another red herring. Criticism of certain judges and courts for their perceived predispositions is not new. Some people will try to read “indirect interest” too broadly, that is not a greater hazard than reading direct interest too narrowly. Professor Esenberg suggests the rules adopted by the court could be improved. Yes indeed; and clarifying “indirect interest” or “support” is one improvement. But when we recall that the State Bar suggested that the Court wait until they got a better rule, and the Court rejected that sound advice to pick a poor rule, the Court could hardly be said to have “gotten it right”.
The Court’s current “rule” (which is more like the absence of a rule) puts the cart before the horse. The essential asset of the Judiciary is our trust in their impartiality and integrity. Mechanisms for ensuring competitive elections are many and important, but no such mechanism should be chosen at the cost of making trust in the Courts unreasonable.
They permit unwarranted attacks on the legitimacy of the courts and the integrity of judges.
I understand you’re talking about proposed rules of ethics you don’t care for here, but that sentence reads far more accurately as a description of judicial elections.
In fact, it indicates almost perfectly the political strategies of Wisconsin Manufacturers & Commerce and the Coalition for America’s Families (or, from your perspective, Mike McCabe, although he has a lot less money and, therefore, a lot less influence).
It’s always seemed to me a little disconcerting that in Wisconsin a heavy emphasis is placed on legal and personal ethics in law school, in the criteria for admission to the bar, and in annual continuing legal education requirements, but when it comes to electing judges, we accept this multi-million-dollar free-for-all of disreputable behavior and then blithely chalk it all down to the First Amendment, which was drafted by people who likely would have been horrified by many of these more recent shenanigans.
Interesting also that among the (“conservative”) justices who inquired of the petitioners if the groups they represented had a view as to whether judges should be popularly elected or appointed based on meritoriousness, the latter suggestion was implicitly treated as some kind of heresy.
Sean
I did not say – please read again – that we should trust a judge’s subjective determination. I said that the mere fact of a $10,000 contribution or expenditure won’t should not always override that determination.
There may be – Caperton is an example – circumstances when there is an objectively perceived potential for bias that overrides a judge’s belief that she can, nevertheless, be impartial.
The circumstances in which a $10000 gift would not create a potential for bias may be those in which millions have been spent. They may be those in which the money has been spent, not by a party to litigation, but by an advocacy group that supports a particular outcome because of the rule of law it will create.
Of course, people are free to criticize the court but that doesn’t mean that the court can’t make clear that its rules are inconsistent with certain criticisms.
The rules that were proposed by LWV and Justice Bablitch would have made it effectively impossible for advocacy groups to be involved in statewide races in any effective way. This would not only be groups like WMC, but the Greater Wisconsin Committee, labor unions and plaintiffs’ bar.
Tom’s criticisms really suggest that judges ought not to be elected and maybe they shouldn’t. (I’m agnostic on that.) But there is, as a practical matter, no way that this will change in Wisconsin any time soon.
Professor, you did suggest we can trust a judge’s subjective determination. (“Suggest” is the verb I used an’ I’m stickin’ with it.) Suggesting we should not trust the judge’s subjective determination contradicts the entire thrust of your post.
My point is that $10,000 constitutes “an objectively perceived potential for bias that overrides a judge’s belief that she can, nevertheless, be impartial.” I cannot think of any place in life where a “gift” of $10,000 would NOT ALWAYS create a potential for bias.
You wrote that a $10,000 gift might not create a potential for bias when millions have been spent. But of course those millions are accumulated one gift at a time. No person needing to raise millions can reasonably afford to risk even one $10,000 donation.
You wrote that there might be no potential for bias when money has been spent by “an advocacy group that supports a particular outcome because of the rule of law it will create.” If a judicial candidate has committed themself to a particular outcome, their bias is established. If such candidates are elected, parties to actual cases would not get a fair hearing.
Courts can TRY to make clear that their rules are inconsistent with certain criticisms, but in this case the Court can only ask us to trust them not to be influenced by money and self-interest because the rule IS CONSISTENT with the criticism.
You wrote that “The rules … proposed by LWV and Justice Bablitch would have made it effectively impossible for advocacy groups to be involved in statewide races in any effective way.” Not so. It would have reduced their effectiveness to the same level as any other group with the same number of members.
When considering the proper standards of jurisprudence, there are obviously many things a Court must consider. Their own re-election is not one of those things. Judges, at least at the appellate level, should not be elected.