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By Sarah Swearer, Summer Intern with Chicago Appleseed Fund for Justice

On May 23, Chicago Appleseed co-sponsored a forum on judicial recusal and campaign finance reform. CAN TV just released the video of the forum, which you can find here: Protecting Fair Courts in a Citizens United World

You can read highlights from the forum here, where you’ll find that several panelists mention judicial recusal and campaign finance standards in other states. Since there wasn’t time for much discussion of these practices during the forum, we thought we’d share a bit about them here.

Georgia and Tennessee were the two states mentioned as having promising recusal standards and being good models for judicial disqualification, especially for states that elect judges in a time when campaign spending and contributions are significantly increasing.

Here’s what Georgia and Tennessee’s recusal rules look like: both require a second judge or justice to make the final decision whether to recuse the challenged judge, and both states have adopted more flexible standards of when disqualification is necessary.

A fundamental problem with states’ recusal rules is the fact that the decision to recuse is solely up to the challenged judge. While a motion for disqualification can be filed, the challenged judge decides whether to accept or dismiss the motion.

Georgia and Tennessee, however, do not allow the challenged judge to make the final decision, no matter the level of the court. In Georgia’s trial and appellate courts, the challenged judge initially reviews the recusal request for facial sufficiency, timeliness, and/or compliance with other procedural requirements. Then if it was deemed the motion was filed properly, the challenged judge decides to either step aside or transfer the request to another judge to decide.

The same process occurs with Supreme Court Justices in Georgia. Then if the remaining justices decide to grant the motion of disqualification thus removing the challenged judge from the case, he or she is replaced by another judge.

Additionally, neither Georgia nor Tennessee has adopted a recusal rule that includes a monetary threshold for campaign contributions but instead, their rules are more flexible. Rather than adopting a rule that states a judge must be disqualified when the party or parties have given an aggregate amount of X dollars in X number of years, Tennessee and Georgia have adopted recusal standards that consider more than just the dollar amount given to a campaign.

Both Tennessee’s and Georgia’s rules include clauses containing specific considerations to be kept in mind when determining whether a judge’s impartiality has been compromised due to campaign contributions or support. Some considerations include the level of support or contributions given, the contributor’s relationship to all the parties involved, the timing as well as the amount of the support or contribution, the impact of the contribution or support, along with several other considerations.

As spending in judicial elections increases, progressive recusal guidelines and disclosure rules are important in order to maintain the integrity of the judicial system. Georgia and Tennessee have adopted recusal rules with straightforward language that progress towards a more transparent judicial recusal system.

Furthermore, the American Bar Association’s Standing Committee on Judicial Independence (SCJI) outlined four procedural suggestions on motions to recuse a judge in Resolution 107. Resolution 107 was adopted in August 2011 and can be used as a reference for thinking about promising recusal standards. The Brennan Center for Justice has also provided suggestions for judicial recusal  rules in “Fair Courts: Setting Recusal Standards” and “Promoting Fair and Impartial Courts Through Recusal Reform.” A previous Chicago Appleseed blog post further discusses model recusal rules as outlined by both the American Bar Association and the Brennan Center for Justice.

Click here to find the full written recusal rules for Georgia and Tennessee.