September 2012 • Volume 100 • Number 9 • Page 468
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Perception is Reality: Recusal and Judicial Campaign Contributions
An ISBA special committee is exploring the role of campaign contributions in judicial elections and the perception that they influence judicial decision-making - and considering whether recusal standards should be changed to address that perception. Here's a look at the concerns and some proposed approaches.
The notion that perception is reality - even when it isn't - is a key challenge for members of a special committee of the Illinois State Bar Association as they consider reforms to recusal standards in response to concern about the perceived role of money in judicial elections.
Consider the approach many Illinois judges have taken in their own judicial election and retention campaigns. For example, Cook County Circuit Judge Michael B. Hyman said he keeps himself in the dark about who contributed how much to his campaign, even though it's a matter of public information.
"I didn't want to know," Hyman said. "I wanted to try and minimize anyone being able to say that a donation might sway me one way or the other."
Other judicial candidates have refrained from attending their own fundraising events to shield themselves from any appearance of bias. Retired Illinois Appellate Justice Gino L. DiVito said he didn't go to that extreme when he was a candidate. But he did choose a nonlawyer who was not likely to appear before him to head up his campaign.
"I told the chairman to screen me from [information about donors and their contributions] so that, in fact, I wouldn't be influenced and there wouldn't be the appearance of impropriety as well," DiVito said.
Today, DiVito is serving as co-chair of the special committee on judicial disqualification standards created by ISBA President John E. Thies to address increasing public and professional attention to campaign contributions in judicial elections and the perception that they influence judicial decision-making.
Thies has charged the special committee, composed of attorneys and judges, to come up with recommendations by October for clarifying and improving judicial recusal procedures in Illinois. Those recommendations are likely to take the form of a proposed Illinois Supreme Court rule rather than proposed changes to the Code of Civil Procedure, said committee co-chair Warren Lupel of Chicago-based Much, Shelist, Denenberg, Ament & Rubenstein, P.C.
A handful of other states have adopted rules creating procedures for the recusal of a judge in a case involving litigants or lawyers who have contributed campaign cash favoring a judge's election. In advocating for new procedures allowing a lawyer to make a motion to change judges based on campaign contributions, Lupel said, "If it's legislative, by the time that gets done I'll be much older than I currently am. The supreme court knows what we're doing and I think would support much of what we would say."
Campaign spending on the rise
A new recusal rule, several committee members said, can be a way to increase public confidence in the courts in a time of rising judicial campaign spending around the country.
Fundraising for state Supreme Court elections nationwide more than doubled from $83.3 million in 1990-1999 to $206.9 million during the period 2000-2009, according to the Brennan Center for Justice in New York City.
In 2004, Illinois was home to the nation's most expensive judicial election campaign on record, when two candidates for a district-based seat on the supreme court raised $9.3 million.
And, in the 2010 election cycle Illinois Supreme Court Chief Justice Thomas Kilbride, responding to an aggressive smear campaign, raised about $2.8 million in his successful bid for retention.
"We want to assist the public in believing, as nearly 100 percent of us believe, that the judiciary is made up of men and women of integrity who make findings based upon the evidence and arguments they hear, and not based upon money," Lupel said. "Some things have a bad appearance, and the nonlegal public may have beliefs that contradict the facts. So part of what we want to do is draft rules that give them greater assurance that no lawyer is in a better position than another lawyer" based on campaign contributions.
Campaign spending and contributions from lawyers, businesses, and special-interest groups into judicial races are inherently part of the process in Illinois and the other 38 states where judges are elected.
"The ISBA has long been on record supporting merit selection of judges," Thies said in his inaugural President's Page column in the July issue of the Illinois Bar Journal. "However, until our state has the political will to adopt this alternative form of judicial selection, we should look at other ways to advance the public's trust in the fairness and impartiality of our courts and judiciary."
Caperton and Citizen's United
Thies's initiative comes on the heels of two U.S. Supreme Court cases that cast the issue of money in judicial politics into the national spotlight.
A 2009 decision in Caperton v. A.T. Massey Coal Co., 556 U.S. 868, considered whether campaign cash can influence judges' decisions in the courtroom and prompted calls for courts to create recusal standards to address the issue.
In Caperton, the high court held that the due process clause of the Fourteenth Amendment requires a judge to recuse himself not only when actual bias has been demonstrated or when the judge has an economic interest in the outcome of the case, but also when the underlying facts create a "serious risk of actual bias."
The court concluded that such a risk existed when the chief justice of the West Virginia Supreme Court denied motions to recuse himself and ruled in favor of reversing a $50 million jury verdict against a coal company whose chairman had contributed $3 million to help elect the justice. The contribution exceeded the total spent by all of the justice's supporters and by his own campaign committee.
The year after Caperton brought Citizens United v. Federal Election Commission, in which the high court held that the First Amendment allows corporations and unions to spend as much as they want to support or defeat candidates.
"This Caperton case in West Virginia, it's absolutely embarrassing to the judiciary and the lawyers of West Virginia. It's an embarrassing situation and it harms the integrity of the court and every judge of the state," said Christopher T. Hurley of Chicago-based Hurley McKenna & Mertz P.C., who serves on the committee as a liaison to the ISBA Board of Governors. "We don't want that to happen in Illinois."
"Illinois Supreme Court races have seen a lot of money being poured into them recently," Hurley said. "This is a really good reason to get out in front of this issue."
Historically, Hurley said, "Almost always judges will recuse themselves if it's going to appear to be a major conflict, or if there truly is one.
"Generally it's not a problem. Now, as money pours into judicial races in our state…We don't want the public to think that justice is for sale," Hurley said. "In the very few cases where the judge will be subject to being questioned there needs to be a procedure for that."
Following the Supreme Court's decisions in Caperton and Citizens United, a call for recusal reform came from the American Bar Association.
The ABA House of Delegates in August 2011 adopted a resolution that urges states to establish clearly articulated procedures for judicial disqualification determinations and for prompt review of denials of requests to disqualify a judge. The resolution further urges states in which judges are subject to election of any kind to adopt disclosure requirements for litigants and lawyers who have provided campaign support in an election involving a judge before whom they are appearing, and to adopt guidelines for judges concerning disclosure and disqualification obligations regarding campaign contributions.
"There were a number of arrows pointing toward us trying to tackle this," Thies said, referring to his focus on judicial disqualification standards in connection with campaign contributions.
"The bottom line is that we have a perception problem," Thies said. "If you ask a typical member of the public whether it's a good idea for judges to make decisions affecting parties that contributed to their campaigns, the reaction you'd get would be negative."
Several state and national surveys have shown that large, bipartisan majorities are extremely wary of the role money plays in judicial elections and believe campaign funding support buys favorable legal outcomes, according to the Brennan Center for Justice at New York University School of Law.
The Brennan Center has cited the findings of a 2010 national survey conducted by New York-based market research firm Harris Interactive and commissioned by the Washington, D.C. - based Justice at Stake Campaign that 71 percent of Democrats and 70 percent of Republicans believe campaign expenditures have a significant impact on courtroom decisions. In addition, 82 percent of Republicans, and 79 percent of Democrats, said a judge should not hear cases involving a campaign supporter who spent $10,000 toward his or her election, and greater majorities said all campaign expenditures to elect judges should be publicly disclosed so that voters can know who is seeking to elect each candidate.
An Illinois rule addressing recusal and campaign contributions?
"The logical place for a new judicial disqualification standard addressing campaign spending is in the Illinois Code of Judicial Ethics, in a newly created subsection to Illinois Supreme Court rule 63(3)(C)," DiVito said.
That rule speaks to judicial disqualification, saying a judge "shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned."
The rule provides a list of circumstances that could render judicial impartiality questionable, including where the judge has a personal bias or prejudice concerning a party or a party's lawyer or personal knowledge of disputed evidentiary facts concerning the proceeding. It also includes instances where the judge or his or her spouse, parent, or child has an economic interest in the subject matter in controversy or is a party to the proceeding or is acting as a lawyer in the proceeding.
But there is no discussion of campaign contributions.
Still, one view is that the lead-in wording of the rule is adequate, allowing the challenged judge to determine whether a political contribution by a party, lawyer, or law firm involved in the case might cause his or her impartiality to be reasonably questioned.
"Historically it has been the judge who has the final say on whether something will cause the judge to remove himself or herself from a case. For most judges, I don't think it's a major concern," said Hyman, who serves on the special committee. "I haven't heard of instances other than a couple where motions based upon campaign contributions have been brought. It's not something that appears to have created a need in Illinois. So are we fixing something that is not a problem? That might be the reaction of some judges."
For others, Hyman said, the viewpoint is more in line with his own: "If we can avoid some disputes down the road, at least we'll have a process in place."
"We can't be too careful of guarding our integrity," Hyman said. "As judges, without the power of the purse, all we have is the respect and trust of the public in our decision making. So anything that could…tarnish our decision making, we need to ensure that it won't have a negative effect."
In Illinois, the Code of Civil Procedure provides for the removal of a judge for cause, and it also provides each litigant, as a matter of right, with one substitution of judge without cause. Still, Hurley said, "There are some really gaping holes in our current system. There's no real guideline for what kind of a contribution rises to the level of a requirement of removal for cause."
"We're lacking two things in Illinois right now: A reasonable standard that the judges can use to decide whether they should recuse themselves, and a clear procedure for parties to get review of a decision where a judge decides not to recuse himself," Hurley said.
That's where the work of the ISBA special committee comes in.
As the committee plunges into its work, the group has been tasked with considering the interrelationship between the decision in the Caperton case, Supreme Court Rule 63(3)(C), and 725 ILCS 5/114-5(d) and 735 ILCS 5/2-1001(a)(3) - statutes that govern the substitution of a judge - and the Illinois Supreme Court's 2011 opinion in In re Marriage of O'Brien, 2011 IL 109039. In O'Brien, the court held that a petition to substitute a judge for cause after a substantive ruling is properly evaluated by the statutory standard of actual prejudice, not the appearance-of-impropriety standard used in the Judicial Code in connection with judicial recusal.
Considering the many issues that come into play with the creation of a new standard for recusal related to campaign money, reaching a solution is a tough nut to crack for the committee.
One question is whether to set a specific dollar amount that limits how much a lawyer or party in a case can donate to the election of a judge before whom they are appearing.
"Most of the people on the committee agree that's not going to work," Hurley said. "A $5,000 contribution in Cook County may be nothing. But [in a small downstate county] it may be the biggest contribution ever made."
He said he sees other downsides to setting such a limit. For example, Hurley said hypothetically, "I'm a lawyer and I want a great judge to be elected, so I give the maximum contribution under the law." Then in the courtroom, under this scenario, an opponent uses that information to argue for recusal and, "I'm effectively being punished for getting a good judge on the bench."
Another concern is with the potential for lawyers and the clients they represent to start using such a rule defensively, instigating gamesmanship. For example, Hurley said, "I don't want a judge to hear this case so I'll just give him some money. Then he'll just have to recuse himself. That's not good. Then the other party gets cheated."
Still another tricky problem for the committee to tackle is the issue of transparency and disclosure.
Should it be the responsibility of the lawyer who contributed money to the election of a judge before whom he or she appears in court to disclose that information before the proceeding starts? Or is it the judge who should be obligated to disclose that to the opposing party?
"The purpose for stepping up in a courtroom is to get justice, not to talk about these money issues," Hurley said. "Putting the burden on the lawyers and judges…that's another problem."
Committee co-chair Lupel said these sorts of "eye-crossing" issues are what the taskforce is trying to iron out, acknowledging some of the concerns that could surface on the part of judges.
"Judges are very upset about the fact that this may cause an obligation on their part…every time a particular lawyer or party is before them, to disclose the amount of their contribution," Lupel said. "You have judges who have calls in which the same lawyer appears before them often. And then, how do you deal with that when the defendant is not represented, as so often is the case in those kinds of situations - residential foreclosure, divorce, collection matters. How do you deal with telling that person that the lawyer on the other side gave me a campaign contribution? Now what?"
Lupel said he also sees a need to address the issue of campaign support that goes beyond just one individual contribution. Illinois law caps contributions from individuals to a judicial campaign at $5,000 per person. However, Lupel said hypothetically, "If I get my wife to put up $5,000 and my brother-in-law to put up $5,000, and my neighbor … and now I can give a $2,500 check to the judge, should she [the judge] be aware of that?"
Or, he said, what happens if a lawyer holds a fundraiser in his home and collects a hefty sum of money, in addition to his own individual contribution that falls within the legal limit, and that lawyer then turns over the collective sum from the fundraiser to the judge's campaign? "Should the judge be aware of that the next day I appear before her as a lawyer?" Lupel said.
Hyman stressed the need for greater transparency about the origination of funds used in support of or opposition to a judicial candidate, noting that there are loopholes in Illinois disclosure laws that allow organizations to funnel anonymous donations for or against judicial candidates.
"If we're going to have rules that say a judge can recuse because of campaign contributions, we need to know where that money is coming from," Hyman said.
Then there are procedural issues, and issues of due process that need to be ironed out in examining recusal standards in connection with campaign spending, DiVito said.
Currently, it's up to the judge challenged with a recusal request to make the initial finding concerning his or her impartiality, he pointed out in setting up a series of questions to be explored: "If the judge says no [to a request for recusal in connection with a participant's campaign contribution], should the judge file a written report addressing his reasons for the denial to a request to step aside? If it goes to a different judge to decide, should that judge file a written report?…Can the position of a judge be subject to an interlocutory appeal?"
"As you can see, these kinds of things add complexity to procedures and tend to highlight the very thing we're trying to do away with: The role of money in contributions and campaigns," DiVito said.
Other states' standards
Thies said he remains optimistic that the result of the committee's work will be "reform that judges will embrace and that will lead to greater confidence in our courts."
He also hopes the committee will benefit from exploring what other states have done, including Tennessee, whose supreme court recently implemented a rule prohibiting judges from hearing cases when campaign spending by lawyers or litigants raises a reasonable question of their impartiality.
Under the new rule, which took effect in July, judges who deny a recusal request must provide their reasons in writing, and the final word on recusal is not left to the challenged judge. Rather, the litigants have a chance to appeal recusal decisions to the next level court, where an assigned judge conducts an expedited hearing on the matter.
"We tried to write something that would really help this whole business of transparency for everybody concerned - transparency for the lawyers, the parties, and for other judges," said Chattanooga attorney T. Maxfield Bahner, who led a taskforce of the Tennessee Bar Association that developed proposed rule changes to the state's Code of Judicial Conduct.
A number of other states have adopted new recusal measures that, to varying degrees, address the issue of money in judicial elections. They include Arizona, California, Georgia, Iowa, Michigan, Missouri, Oklahoma, Utah, and Washington.
Some of the standards call for the disqualification of judges when single contributions exceed a specified amount. For example, Utah's rule, approved in 2010, provides for the disqualification of a judge if parties or lawyers have contributed more than $50 within the previous three years.
In New York, the court system last year created an administrative rule that restricts the assignment of cases where participating litigants, counsel, or firms made significant campaign contributions to an assigned judge. Under the new rule there, no case may be assigned by court administrators to a judge when the lawyers or any of the participants involved donated $2,500 or more in the preceding two years. Court officials are said to use computer programs to compare the names of lawyers and other people involved in cases against public records of contributions to judicial candidates. If contributions of more than $2,500 over two years are found, the case is assigned to a different judge.
Members of the ISBA committee come to the table with differing viewpoints as they work to develop a proposal for the association's Board of Governors, with the goal of presenting a proposal to the ISBA Assembly for a vote at the midyear meeting in December, DiVito said. If the Assembly approves the proposal, he said, it becomes the policy of the ISBA, which would then petition the Illinois Supreme Court to make the proposal part of the Code of Judicial Conduct.
"There's general consensus among the committee members that some rule is appropriate," DiVito said. "People have a tendency to believe that campaign contributions have an effect on judicial thinking and outcomes. That's got to be addressed to some degree."
Maria Kantzavelos <email@example.com> is a Chicago-based freelance writer focusing on legal topics.