State Bar seeks
member input on recusal standards
At its Dec. 5 meeting, the State Bar
Board of Governors voted to solicit input from members as it explores
judicial recusal reform options.
On June 20, 2008, the Wisconsin League of Women Voters
filed petition
08-16 seeking creation of rules regarding recusal when a party or
lawyer has made a campaign contribution to a judicial campaign. On
September 30, 2008, the Wisconsin Realtors Association filed petition
08-25, seeking amendments to the Rules of Judicial Conduct regarding
recusal. The Supreme Court has scheduled a hearing on these petitions
for April 20, 2009.
Proponents of reform argue that strengthening recusal rules will help safeguard due process
and rebuild public trust in the judiciary. The League’s petition
state’s, in part, that “we believe it is necessary to have
rules for recusal which remove any perception that justices and judges
are beholden to those who contribute to their campaigns.”
Proponents of the Realtors’ position point to increased
administrative costs and potential litigation delays. They also
warn that overly-broad rules could open the door to “judge
shopping” and may undermine a judge’s duty to hear all
cases.
Interest in recusal has increased in the wake of the
2002 Republican
Party of Minnesota v. White decision, which determined that
Minnesota’s “announce
clause” was an unconstitutional infringement on the First
Amendment rights of judicial candidates. In his concurrence, Justice
Anthony Kennedy wrote that states may respond to perceived threats to
the impartiality of the courts by adopting “recusal standards more
rigorous than due process requires, and censure judges who violate these
standards.”
These issues are central to two pending
cases; Siefert v.
Alexander (before the U.S. District Court for the Western
District of Wisconsin) and Caperton
v. A. T. Massey Coal Co.(before the
U.S. Supreme Court).
On October 30, the ABA Standing Committee on Judicial Independence
issued its draft
report and recommendations regarding judicial disqualification and
requested co-sponsorship of the proposed resolution. The Brennan Center (at the New York University
School of Law) has issued a report entitled Fair
Courts: Setting Recusal Standards, which offers additional
background.
The varied considerations surrounding
this issue demand that the State Bar’s position on recusal
standards be carefully designed to balance a range of policy and
practical considerations.
Submit your
comments.
