American Bar Seeking Rules On When A Judge Must Recuse Him Or Her Self

From the Birmingham News

WASHINGTON — The American Bar Association, in a newly adopted policy, is urging states to set rules for judges to step down from cases involving campaign contributors, a sign of growing national anxiety over the influence of political money in the judicial system.

“It does raise it to the national level and starts the debates in the state legislatures, but more importantly it’s on the radar of the chief justices of every state,” said Tommy Wells, a Birmingham lawyer and former president of the ABA.

Alabama was at the forefront 16 years ago, when legislators passed a law calling for local judges to recuse themselves if a party or their lawyer contributed $2,000 to the judge’s election; $4,000 for state appellate judges. But in a quirky stalemate between the Alabama Attorney General’s Office and the Alabama Supreme Court, the law has never been enforced.

The issue has only gotten more serious since the Alabama law was passed. Spending on judicial elections has skyrocketed; questions about whether judges should be picked in partisan elections have increased; and the U.S. Supreme Court ruled that campaign donations can create a risk of bias by the judge, and, separately, that corporations or labor unions can independently spend unlimited amounts to influence elections.

“The mere possibility that a vast influx of additional campaign money might enter (judicial elections), which already in the past decade has been saturated with unprecedented campaign support, virulent attack ads, and concomitant diminution in public respect for state judiciaries, makes tighter controls over disqualification imperative,” ABA officials wrote in a recent report. “Thus there is an urgent need for states to have in place prompt, effective, and transparent disqualification procedures.”

The ABA’s House of Delegates, in its annual meeting in August, overwhelmingly approved the resolution calling for disclosure of campaign donations from litigants and lawyers to the judge hearing their case, and guidelines for when those donations would require the judge to remove himself from the case.

“This gets to the whole issue of the public’s respect for the rule of law and does the public have confidence in the judiciary to be fair and impartial,” said William Weisenberg of the Ohio State Bar Association, who presented the resolution at the ABA meeting in Toronto.

The ABA policy does not dictate specific rules, leaving the details up to the states. But it does call for clear disclosure of campaign finances so that judges, lawyers and the public have the complete picture to make a decision about disqualifying a judge. Wells said the disclosure should include direct donations to a judge’s campaign as well as independent campaign expenditures made on a judge’s behalf.

“You have to trace the money,” Wells said. “We’ve done a better job of that in Alabama with the ban on PAC-to-PAC transfers, but it is still not as transparent as it probably needs to be to make that statute effective even if it were being enforced. If I gave money to a PAC and that PAC gave money to a judge, how do you know that’s my money?”

Alabama’s recusal law has never been enforced. The Alabama Supreme Court says it can’t write the rules to implement the law until the U.S. Justice Department signs off that it doesn’t disenfranchise minority voters; but the Alabama Attorney General’s Office says no such federal approval is necessary and has refused to submit it to Washington. A lawsuit filed by a member of the Anniston City Council trying to force action recently was dismissed, though the issue could be revisited.

Thirty-nine states elect their judges, and the ABA said 20 percent of them have started to reexamine the issue of disqualification since the U.S. Supreme Court decision in 2009 regarding campaign contributions creating the appearance of bias.

“Judges each and every day decide cases .¤.¤. and they do it with honor and distinction but there are situations that arise that raise questions,” Weisenberg said. “Public perception is very important.”

If you have questions about a criminal case contact Daniel Ambrose at 248-624-5500

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