Letter to the Editor: Campaign contributions and recusal

The Chicago Daily Law Bulletin (account required for access) has run a letter to the editor from our Executive Director and our partners at the Chicago Council of Lawyers and the Illinois Campaign for Political Reform, discussing the need for improved recusal standards in Illinois. We’re pleased to see so much attention to the issue by the press in a non-election year.

The text of the letter follows:

To preserve the public’s confidence in the integrity and independence of our judiciary, the Illinois Supreme Court should update the Code of Judicial Conduct to expressly include campaign contributions as a basis for disqualification.

In 2004, more than $9.3 million was spent in one contested race for a seat on the Illinois Supreme Court, breaking a national record. In 2010, more than $3.5 million was spent in a Supreme Court retention election.
Much of the money spent in those campaigns comes from corporations and other special interests hoping to influence future judicial decisions by helping to decide who sits on the bench.

The system suffers regardless of whether the contributions actually influence judicial conduct. When a judge fails to remove himself or herself from a case in which one of the parties, or a lawyer, has contributed a significant sum to elect or defeat the judge, the parties and the public will necessarily question whether that judge can be truly impartial.

The appearance of impropriety was so strong in Caperton v. A.T. Massey Coal Co. — a coal company’s chairman contributed more than $3 million to help elect an appellate justice who then heard the company’s appeal — that the Supreme Court in 2009 deemed the justice’s failure to disqualify himself to be a failure of due process.
Caperton represents a call for states to stop ignoring the perceived influence that campaign money is having on the judiciary. As the Supreme Court has repeatedly stated, “Justice must satisfy the appearance of justice.”
Illinois should amend its disqualification rules to expressly confirm that money spent in a judicial campaign requires a judge to disqualify himself or herself when a contribution would lead a reasonable person to question the judge’s objectivity.

The amendment should include, at a minimum, a fair standard for recusal, mechanisms to ensure transparent decision-making and an opportunity for review.

The Tennessee Supreme Court adopted a disqualification standard that should serve as a model for Illinois. The new Tennessee rule requires a judge to disqualify himself or herself whenever a party, its lawyer or the lawyer’s firm has made monetary or in-kind campaign contributions that might lead to reasonable questions about the judge’s impartiality.

By requiring disqualification when a judge’s impartiality “might reasonably be questioned,” the Tennessee rule uses the same recusal standard already found in Illinois’ current disqualification provision (Supreme Court Rule 63(c)(1)) and in the American Bar Association’s Model Code of Judicial Conduct (Rule 2.11) (.pdf).

The Tennessee rule also includes commentary that identifies a number of specific, concrete factors to consider when determining whether campaign support should result in disqualification.

Those factors include the amount of contributions or support given, directly or indirectly, to an individual judge’s campaign and how significant that support was in proportion to the total amount spent by all candidates for that judgeship; if the support was monetary, whether it was made in the form of a direct contribution to a candidate’s campaign or to independent campaign expenditures; the timing of the support or contribution in relation to the case in which a judge’s recusal is sought; and the relationship of the contributor to the litigants, the candidate or the issue before the court.

In the interests of transparency and accountability, we also urge two additional modifications to the Illinois rules.

First, disqualification decisions should be in writing, as they are required to be in Michigan and Tennessee. Requiring written opinions setting out the reasons for the grant or denial of disqualification motions will promote intellectual rigor in the application of the recusal standard and ensure that the parties and the public have the benefit a judge’s reasoning.

This in turn will help assure the public that the judiciary is taking the issue of campaign contributions seriously.

Second, a judge’s refusal to disqualify himself or herself must be reviewable, whether by a fellow judge, a presiding judge or a higher court. Multiple states have adopted such a review process. The availability of review will foster conscientious disqualification decisions and promote uniformity.

As judicial candidates are forced to raise larger and larger sums of money to compete in judicial elections, public confidence in the independence and integrity of our judges suffers.

It is imperative that the Illinois Supreme Court take steps to improve that public perception by adopting comprehensive, robust and effective rules governing when judges must be disqualified based on campaign contributions.

Thomas M. Staunton, president, Chicago Council of Lawyers;
Malcolm C. Rich, executive director, Chicago Appleseed Fund for Justice; and
Whitney Woodward, policy associate, Illinois Campaign for Political Reform

You can download Chicago Appleseed’s policy brief on judicial recusal practices here. The Center for American Progress report on why strong recusal rules are critical is available here. The Brennan Center reported on various states’ attempts to reform recusal rules in the immediate aftermath of Caperton.

We hope to see the Illinois Supreme Court address the issue soon.

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