AMERICAN BAR ASSOCIATION
INDIANA STATE BAR ASSOCIATION
JUDICIAL DIVISION
NATIONAL CONFERENCE OF STATE TRIAL JUDGES
NATIONAL CONFERENCE OF FEDERAL TRIAL JUDGES
APPELLATE JUDGES CONFERENCE
NATIONAL CONFERENCE OF ADMINISTRATIVE LAW JUDGES
NATIONAL CONFERENCE OF SPECIALIZED COURT JUDGES
REPORT TO THE HOUSE OF DELEGATES
RESOLUTION
RESOLVED, That the American Bar Association urges states and territoriesto review their judicial disqualification procedures to assure the fair and impartial administration of justice and to conduct such reviews periodically.
FURTHER RESOLVED, That the American Bar Association urges states and territories to establish proceduresthat include objective minimum standards for judicial disqualification when there is a substantial risk of actual bias or when a judge’s impartiality might reasonably be questioned. Such minimum standards should include considerationof the following factors:
A. The effect of direct or indirect financial expenditures supporting or opposing a judicial candidate’s selection;
B.The time period to be considered when determining whether a potential conflict exists; and,
C.The method and jurisprudence of judicial selection in the jurisdiction.
10B
REPORT
The Importance of Objective Rules
Rules on judicial disqualification should strike the necessary balance between a judge’s duty to hear cases and a judge’s duty to recuse when her “impartiality might reasonably be questioned.”[1]In its most recent pronouncement on the subject, the Supreme Court of the United States, in Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 129 S. Ct. 2252 (2009), held that due process requires recusal where there is a risk of bias sufficient to throw into doubt whether a fair trial in a fair tribunal is occurring. In response to the issues raised by this and other cases, the ABA House of Delegates passed Resolution 107 in August 2011. Resolution 107 urged states to articulate clear standards for judicial disqualification and procedures for reviewing disqualification rulings. For states utilizing judicial elections, the Resolution also urged them to adopt campaign disclosure rules for judges, litigants, and lawyers. Because judges will be held to whatever minimum standards are adopted by bodies assigned the task of enforcing ethics rules and by public opinion, judges are likely to take a cautious approach in deciding whether recusal is appropriate. As a result, rules evading clear interpretation may inadvertently lead judges to recuse themselves when recusal is inappropriate, thus steering far more widely from possible bias than prudent or necessary as they interpret the rules with the broadest strokes possible. Therefore, ambiguous rules will most often fail to strike the proper balance and will interfere with a judge’s duty to hear cases.
This resolution complements without changing the prior resolution by emphasizing the urgency of adopting appropriate rules, the need to consider both the selection process for judges and the structure and laws of each State to develop objective, bright-line standards not already addressed by their existing ethics rules. Objective, rather than subjective, rules on judicial disqualification assure maximum fairness in their interpretation, administration, and enforcement. The ABA Model Code of Judicial Conduct already contains a number of unambiguous rules encouraging states to provide meaningful guidance to their judiciaries. For instance, Rule 2.11(A)(4) encourages states to select a specific dollar amount and time period for contributions that could lead a judge’s impartiality to be reasonably questioned. Safe harbors, such as those in Rule 2.11(A)(4), are important to the effective interpretation, administration, and enforcement of ethics rules. Safe harbors provide concrete, unambiguous guidance to judges. A judge knows when disqualification is and is not required, meaning the risk of unnecessary recusal is very low. Such bright-line rules also avoid the risk of biased or uneven enforcement. Accordingly, clear, unambiguous standards describing when disqualification is or is not necessary provide meaningful guidance to those judges subject to the rules and those seeking to administer and enforce the rules.
Subjective standards, on the other hand, hinder fair interpretation, administration, and enforcement. Although reasonable minds may differ as to the meaning of a rule subject to interpretation, objective standards minimize these subjective differences. Where variability is rampant, however, and because judges tend to be cautious, subjective rules will impel disqualification when it is unnecessary. Alternatively, a judge seeking to comply with a rule may inadvertently fail to comply with rule the way the rule is interpreted by others, so that even when failure to recuse does not result in enforcement action, it may nevertheless open the door for criticism of a judge by her opponents or detractors. Thus, even if the criticism is meritless, the judge will have difficulty defending herself against the standard of an ambiguous rule. The cost of adopting ambiguous or subjective standards will typically outweigh the benefit of obtaining easier consensusfor a rule and, in reality, will result in more confusion regarding when disqualification is appropriate. The fact is the public benefits when judges are able to hear and resolve cases.
Practical Considerations
The Model Rules of Judicial Conduct require a judge to decide whether disqualification is appropriate based on the judge’s actual knowledge.[2] While this approach may not lead to recusal in every instance that information could reveal the potential for bias, it does adequately protect litigants and the public when there is actual bias. From a practical standpoint, this approach also avoids the substantial administrative costs that would be incurred if knowledge were imputed to a judge, as any imputation would require a system for obtaining the knowledge on which a disqualification decision is supposed to be based.
Judicial campaigns, depending on the state and court, are usually not large endeavors. Very few, in fact, are multimillion dollar efforts. Instead, contributions are typically small and come from numerous individuals, and most of the campaign work is done by volunteers, not paid staffers. As a result, a judge is often unaware of who provided financial contributions to her campaign committee or who has expressed support apart from members of the campaign committee. To obtain any information imputed to a judge by rule, the judge would have to engage in independent research, as lawyers are often unwilling to disclose potential conflicts for fear the judge will not look favorably on the disclosing party. That independent research could include internet searches for any op-eds the party or its lawyer may have written or a search through a board of elections database. In any case, substantial administrative costs are likely to be incurred. State courts handle thousands of cases each year. A judge is unlikely to have the time to conduct such an inquiry with each matter coming before her. Inevitably, law clerks, clerks of court, or other judicial employees will be burdened with conducting the inquiry. Even if this inquiry were desirable or permissible on court time, implementing such a scheme seems unlikely in light of the substantial threats to adequate court funding. When state courts and their employees are already overburdened, the hiring of additional staff to perform such tasks is not realistic. If some states could provide adequate resources to institute a conflicts-check system, the system would need to be designed carefully, as many jurisdictions prohibit judges from learning the financial details of their campaign committees.[3] Additionally, judges would likely be unable to ascertain all potential conflicts resulting from contributions to section 527 organizations in light of the statutory bar from their substantial participation with such organizations.[4] If a system could be defined to comply with various rules and regulations, states should strongly consider to what extent they desire their judges to constantly review and remind themselves of potential conflicts emanating from contributions to their campaigns, rather than to move forward as impartial members of the judiciary. On the other hand, if a state were to contemplate shifting the burden of disclosure to lawyers, the state should carefully consider which disclosures are material, rather than those that would merely negatively affect the public’s perception of fairness and integrity within the judiciary when, in actuality, no material conflict exists.
Other Considerations
Following Caperton and Citizens United, states should consider a number of factors that may or may not be adequately addressed in their current rules. The proper approach to each of these, as well as other issues, will often vary based on the unique circumstances surrounding each state’s judicial selection process.
Judicial selection methods vary greatly across the country. Even among states that utilize judicial elections, some have chosen to conduct retention elections, while others have chosen contested elections. The likelihood of actual or perceived bias resulting from direct or indirect campaign contributions in each model likely differs substantially.
States should also consider the extent to which independent expenditures through individuals or section 527 organizations should play a role in the judicial disqualification process. After all, judicial candidates do not receive money directly from these organizations or control how the money is spent. As described in Caperton, at some point the risk of actual bias becomes too great to allow the judge to hear a matter, but there is a lot of distance between that constitutional mandate and the point at which the judge’s impartiality may reasonably be questioned. States should consider which independent expenditures create such a risk and should lead to mandatory disqualification and seek to clearly define those situations.
Similarly, some are concerned that the ABA Model Code of Judicial Conduct and corresponding state rules fail to adequately address conflicts arising from non-financial support. To the extent states are concerned with appearances by significant campaign employees, such as a campaign chair, campaign treasurer, or their functional equivalents, unambiguous rules can be implemented requiring disclosure and/or recusal. After all, members of the bar are most likely to be active in judicial elections as those most familiar with the candidates and that laudatory civic participation should not be a bar to practice in those very courts. Judges are, after all, selected to hear cases brought before their courts.
Conclusion
Recent Supreme Court cases have cast doubt on whether existing judicial disqualification rules are adequate to assure due process for every litigant. While the concern is reflected in existing rules, reconsideration of those rules and their adequacy may be appropriate. Rules are most likely to succeed when they are clear, unambiguous rules capable of efficient administration, of unbiased and predictable enforcement, and of providing meaningful guidance to judges tasked with interpreting them on a daily basis. States should use this framework as they review and interpret their existing rules and seek to promote public confidence in the fairness and integrity of their judiciaries. Inevitably, when judges are elected, tension will arise between the political demands imposed on them by the election process and their duty to be fair and impartial. In these systems an appropriate balance must be struck to ensure the fair and impartial administration of justice. Due process demands as much, and delay in undertaking to assure the fair and impartial administration of justice can only result in irreparable harm. For this reason, every state and territory should undertake a review of their rules to assure that clear, objective standards define when recusal is necessary.
Respectfully submitted,
Daniel B. Vinovich, President
Indiana State Bar Association
August 2013
GENERAL INFORMATION FORM
Submitting Entity:Indiana State Bar Association
Submitted By:Daniel B. Vinovich, President, Indiana State Bar Association
- Briefly summary of the Resolution.
Urges the states and territories to review judicial disqualification procedures on a regular basis and to assure that such rules provide objective and unambiguous bright line standards to disqualify or recuse judges from participation in particular matters, when appropriate.
- Indicate when Resolution was approved or will be considered by the governing body of the submitting entity. If the vote was taken other than at a regularly scheduled meeting of the governing body, describe the procedure.
The Executive Committee of the Board of Governors of the Indiana State Bar Association approved this resolution on May 2, 2013.
- If this or a similar Resolution has been submitted previously to the House of Delegates or the Board of Governors, please include all relevant information—summary of the Resolution, when and before what group the Resolution was considered, and what action or position was taken on the matter.
The House of Delegates adopted 11A107 in August 2011. A similar resolution was submitted to the House of Delegates for consideration by the Tort Trial and Insurance Practice Section in August 2012 but was withdrawn. The present resolution does not alter or amend 11A107 but supplements it by urging immediate and periodic review of judicial disqualification rules and emphasizing the need for carefully tailored rules that have objective criteria.
- Are there any existing Association policies which are relevant to this Resolution, and if so, how would they be affected by the adoption of this Resolution?
The proposed Standards are consistent with and augment the Association's existing policies, including those urging enactment of authoritative measures against bias in the courts (91A10D) and urging adoption of clearly articulated procedures for judicial disqualification (11A107).
- Explain what urgency exists which requires that action on this matter be taken at this meeting. If deferral is acceptable, note the time by which action is necessary.
The adoption of this resolution will further the administration of justice in light of recent U.S. Supreme Court decisions. Those decisions find that a failure to recuse in certain circumstances constitutes a violation of due process. Other U.S. Supreme Court decisions make plain that the delay in the implementation of constitutional rights, even for short periods of time, constitute irreparable harm. To avoid that harm, review of rules to assure their adequacy must be undertaken immediately.
- If the Resolution is a legislative resolve, indicate the current status in the Congress.
Not applicable.
- Briefly explain plans for implementation of the policy, if adopted by the House of Delegates.
The Indiana State Bar Association will contact other state bar associations and the National Conference of Chief Justices to ask that theywork to implement this policy.
- If adoption of the Resolution would result in expenditures, estimate the funds necessary, suggest the anticipated source of funding, and list proposed direct and indirect costs. Indirect costs include those such as staff time or administrative overhead.
None.
- Review the background of the proponents of the Resolution to determine if there are potential conflicts of interests. If such potential is found, list by name those proponents who have a material interest in the subject matter of the Resolution due to specific employment or representation of clients. Note all individuals who abstained from voting on the Resolution because of a conflict of interest.
The proponent of the resolution is the Indiana State Bar Association. It does not have any conflicts of interest.
- List the sections, committees, bar associations or affiliated entities to which the Resolution has been referred, the date of referral, and the response of each group if known.
This Resolution will be referred to all Sections, Divisions, and state bar associations. There will be special interest in this resolution by the National Association of Bar Executives, the Standing Committees of Ethics and Professional Responsibility and Professional Discipline, and the Standing Committee on Judicial Independence.
- Indicate the name, address and telephone number of the person who should be contacted prior to the meeting concerning questions about the report.
Daniel B. Vinovich
President
Indiana State Bar Association
Hilbrich Cunningham DoboszVinovich & Sandoval, LLP
2637 – 45th Street
Highland, IN 46322
(219) 924-2427 (office) or (219) 718-6988 (cell)
Hon. William D. Missouri (ret.)
Chair
Judicial Division
Special Legal Counsel to the Office of the Prince George's County Executive
P. O. Box 422
Upper Marlboro, MD 20773
(301) 952-5225 (office)
- Indicate the name of the person who will present the Resolution to the House and who should be contacted at the meeting when questions arise concerning its presentation and debate. Please be sure to include email addresses and cell phone numbers for you on-site contacts.
Daniel B. Vinovich
President
Indiana State Bar Association
Hilbrich Cunningham DoboszVinovich & Sandoval, LLP
2637 – 45th Street
Highland, IN 46322
(219) 924-2427 (office) or (219) 718-6988 (cell)
EXECUTIVE SUMMARY
1. Summary of the Resolution
Recent developments in Supreme Court jurisprudence have increased concerns about judicial disqualification procedures in state courts. As a result, there is urgency to determining whether current procedures appropriately safeguard the public’s reliance on the judiciary’s fairness, impartiality, and decisional independence. Designing an objective and clear judicial disqualification procedure that does not unnecessarily cause recusal is unquestionably a challenging undertaking. Nonetheless, it is one that must be accomplished with urgency in order to protect the public interest and to provide meaningful guidance to judges who are tasked with interpreting and applying those guidelines. This resolution urges that the existing rules be reexamined both immediately and periodically and, where inadequate, new procedures beadopted that are clear and objective. It further recognizes that reexamination and adoption of new procedures should be a function of the judicial branch’s authority over its own self-governance.
2. Summary of the issue which the Resolution addresses
In 2009, the Supreme Court determined that due process required judicial disqualification in certain extreme circumstances. The Standing Committee on Professional Discipline and the Standing Committee on Ethics and Professional Responsibility were tasked with considering whether amendments should be made to the ABA Model Code of Judicial Conduct or to the ABA Model Rules of Professional Conduct in order to provide additional guidance to the states. Those efforts have produced a variety of different approaches, the latest of which may be submitted as a resolution to the House. However, because of problems inherent in each of the different approaches considered by the standing committees, the current resolution is necessary to recognize both the urgency of moving forward on recusal rules in the states and territories, as well as the need for those rules to conform to the particularities of each jurisdiction, as would occur through each state’s or territory’s rulemaking bodies. The new rules must be sufficiently unambiguous as to ensure that they are capable of efficient administration, of unbiased and predictable enforcement, and of providing meaningful guidance to judges tasked with interpreting them on a daily basis. This resolution supplements Resolution 107, without changing it, to urge states to undertake that effort.