Caperton v. Massey

First answers are coming from the Midwest, where divided courts have recently taken Caperton in different directions. Wisconsin's high court rejected proposals to require recusal when campaign spending reached a fixed "trigger" level. The proposal was sparked by record-breaking cash washing through the state's last three Supreme Court contests.

But the court's 4-3 majority took a far more radical step, approving requests from two of the state's most powerful players-the Wisconsin Realtors Association and Wisconsin Manufacturers & Commerce-that no contribution or independent expenditure, no matter how large, could ever be the sole basis for recusal. In other words, if Bernie Madoff had spent $100 million to elect a Wisconsin Supreme Court justice, a victim suing him for redress couldn't point to the support and ask the justice to abstain.

In Michigan, the state Supreme Court moved forward instead of backward. A 4-3 majority began by agreeing that a judge should be disqualified when "the judge's impartiality might objectively and reasonably be questioned" -- catching Michigan up with the vast majority of other states that have adopted this standard.

The Wolverine State's Supreme Court went further, adopting a first-in-the-nation provision that a litigant who fails to convince a justice to recuse may appeal to the entire high court (which would have to spell out its reasoning when it decided). "Times are changing and we're becoming increasingly aware of the impact a refusal to disqualify has on the public," said Chief Justice Marilyn Kelly.

Indeed, as spending on high court elections has more than doubled over the last decade, recusal has become a hot issue. Three in four Americans believe that campaign cash influences courtroom decisions. Caperton reaffirmed that this cash matters, and that every state must guarantee litigants a fair trial with due process, including in cases that involve major campaign spenders. And states are very much allowed to set rules that are tougher than the minimum required by constitutional due process requirements.

Since courts typically draft their own recusal standards, watchful eyes are on states like Nevada and Washington, which are now reviewing their rules. But judges don't always get the last word. In Wisconsin, just a week after the high court's retreat, legislators passed a system for public financing of judicial elections -- a reminder that impartial justice is everyone's business.

On a 4-3 vote, the Wisconsin Supreme Court adopted the rule, which was backed by business lobbying groups. Justice Patience Roggensack, writing for the majority, maintained that the rule will "send a message that making lawful contributions is not a dishonorable thing to do and it's not a dishonorable thing to receive."

But in dissent, Justice N. Patrick Crooks wrote, "I think what it's going to do is add to the perceptions (of bias) that are apparently out there rather than put them to rest." The Milwaukee Journal Sentinel reported that the majority in the case, In the matter of Amending the Rules of Judicial Conduct, rejected an alternate proposal pushed by the League of Women Voters of Wisconsin that would have triggered judicial recusals in certain instances.

In an article for the State Bar of Wisconsin's Web site, Alex De Grand wrote that the "First Amendment outweighed due process arguments," noting that Justice Roggensack wrote, "My major concern is the First Amendment."

In June, the U.S. Supreme Court ruled in Caperton v. Massey that the First Amendment, however, did not prevent it from fashioning a recusal rule. "We conclude," Justice Anthony Kennedy wrote for the 5-4 majority, "that there 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 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."

In guest post for ACSblog, Professor Richard L. Hasen, of Loyola Law School, noted that while judicial elections, which 39 states have, are not going to disappear, Caperton would provide a "backstop for the most egregious cases of large campaign spending, when spending limits and judicial speech codes are otherwise off the table or severely limited."

For more analysis of judicial elections, see video of a panel discussion, "Judicial Elections: Financing, Recusal, and Judicial Independence," from the 2009 ACS National convention and an ACSblog interview with Justice at Stake's Bert Brandenburg on the impact of Caperton.