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AMERICAN BAR ASSOCIATION
ADOPTED BY THE HOUSE OF DELEGATES
AUGUST 11-12, 2014
RESOLUTION
RESOLVED, That the American Bar Association urges that states and territories adopt
judicial disqualification and recusal procedures which: (1) take into account the fact that
certain campaign expenditures and contributions, including independent expenditures, made
during judicial elections raise concerns about possible effects on judicial impartiality and
independence; (2) are transparent; (3) provide for the timely resolution of disqualification
and recusal motions; and (4) include a mechanism for the timely review of denials to
disqualify or recuse that is independent of the subject judge; and
RESOLVED FURTHER, That the American Bar Association urges all states and territories
to provide guidance and training to judges in deciding disqualification/recusal motions.
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REPORT
Introduction
Assuring fair and impartial courts, essential to preserving justice and the Rule of Law,
remains a paramount objective of the structure and process of our justice system. To assure that
laudable goal, judges must act without regard to the identity of parties or their attorneys, the
judge’s own self-interest, or the likely criticism any decision might engender. To eliminate any
perception of bias, the law has long recognized recusal or disqualification as a means to assure
fundamental fairness. Although a number of specific prohibitions are found in the Model Code
of Judicial Conduct and in various statutes, rules, and codes adopted in the States, there is
widespread acceptance as well of the general standard that disqualification is warranted when a
“judge’s impartiality might reasonably be questioned.”1
Increases in the amount of money expended in judicial elections, both by a judicial
candidate’s own campaign and by independent interests, have heightened concerns about the
potential for bias in the courts and can adversely affect the public’s confidence that judicial
decisions not be influenced, even subtly, by elements external to the merits of the case. While the
phenomenon of increased spending in what were once relatively quiet campaigns for judicial
office has grown lately, recent decisions invalidating campaign finance laws, such as Citizens
United v. Fed. Election Comm’n, 558 U.S. 310 (2010) and McCutcheon v. Fed. Election
Comm’n, 134 S.Ct. 1434 (2014), suggest that the role of money in judicial selection may
continue to grow and require that greater attention be paid to how disqualification, when
warranted, ought to take place.
In Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868 (2009), considering a state
supreme court justice’s denial of a party’s recusal motion, the Supreme Court held that due
process requires recusal2 when “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 and 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.” Id. at 884.
That holding created a conceptual framework for thinking about recusal, but also recognized that
“[n]ot every campaign contribution by a litigant or attorney creates a probability of bias that
requires a judge’s recusal.” Id.
Responding to the Caperton decision, the House of Delegates approved Resolution 107
in August 2011, which asked the Standing Committee on Ethics and Professional Responsibility
and the Standing Committee on Professional Discipline “to consider what amendments, if any,
See, e.g., MODEL CODE OF JUDICIAL CONDUCT [hereinafter “Model Code”] R. 2.11(A) (2013). This concept is also
reflected in federal law and the laws of 47 states. Deborah Goldberg, et al., The Best Defense: Why Elected Courts
Should Lead Recusal Reform, 46 Washburn L.J. 503, 518 (2007).
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The terms “disqualification” and “recusal” are often used interchangeably. See Hendrix v. Sec’y, Fla. Dep’t of
Corrections, 527 F.3d 1149, 1152 (11th Cir. 2008). Technically, however, “recusal” refers to a judge’s decision to
withdraw sua sponte, while “disqualification” refers to a ruling on a motion asking the judge to withdraw from
hearing a particular case. See Forrest v. State, 904 So.2d 629, 629 n.1 (Fla. 4th D.C.A. 2005).
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should be made to the ABA Model Code of Judicial Conduct or to the ABA Model Rules of
Professional Conduct to provide necessary additional guidance to the states on disclosure
requirements and standards for judicial disqualification.” Those committees proposed changes to
Rule 2.11 of the Model Code of Judicial Conduct, which were designated as Resolution 108 for
the 2012 Annual Meeting. The proposals, however, engendered opposition largely because the
language suggested that judges were responsible to investigate and determine, sua sponte,
whether outsized campaign contributions or expenditures, even independent expenditures by
separate organizations made outside of the knowledge or control of judges, warranted recusal.
Such an expectation, particularly in an era of limited judicial resources and statutes in some
states that prohibited judges from knowing who has contributed to their own campaigns, was not
the intent of the sponsors of Resolution 108, but language that made that intent clear in a manner
satisfactory to all interested parties proved elusive.
Responding to a resolution approved by the Conference of Chief Justices (CCJ) in July
2013, both Resolution 108 and a competing measure, designated as Resolution 10B and
cosponsored by the Judicial Division (JD) and the Indiana State Bar, were withdrawn to permit
CCJ to participate in the process of considering new language.
In meetings held in Chicago in September 2013 and February 2014, representatives of the
Standing Committees, the JD, and CCJ met to discuss possible approaches, agreeing that a
resolution that addressed procedural issues in seeking judicial recusal had risen in priority and
required the development of the principles now reflected in the present resolution.
Background
The Massachusetts Constitution, authored by John Adams in 1780, declares it the “right
of every citizen to be tried by judges as free, impartial and independent as the lot of humanity
will admit.” Mass. Const. Pt. 1, art. 29. The Massachusetts provision reflects a goal shared across
states and the nation as a whole. Under the federal Constitution, due process plays the key
constitutional role in assuring fair and impartial courts. See In re Murchison, 349 U.S. 133, 136
(1955). The importance of assuring judicial neutrality is not solely important to litigants; it is
crucial to public confidence that the rule of law still prevails.
In the states, judicial disqualification may be governed by such diverse sources as
constitutional provisions, statutes, court rules, judicial precedent, codes of judicial conduct,
ethical rulings, and administrative directives. While many of these provisions detail the instances
in which recusal is appropriate or mandatory, as Ninth Circuit Judge Margaret McKeown has
written, “[i]n most cases, the issue is not an actual conflict of interest or a claim of actual bias,
but rather the appearance of potential bias in hearing a case where a judge’s impartiality is
perceived to be in doubt.” M. Margaret McKeown, Don’t Shoot the Canons: Maintaining the
Appearance of Propriety Standard, 7 J. App. Prac. & Process 45, 45 (2005).
It is therefore critical that timely procedures be in place to permit a party to move for
disqualification, receive a timely decision, understand the basis for the decision, and, when
warranted, be permitted to seek timely review, without having first to litigate the case to a final
disposition before receiving the relief that due process affords. As with the standards governing
disqualification generally, states handle the process of disqualification differently. About a third
of the states have a system of peremptory disqualification that allows litigants to seek a new
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judge without a show of cause. Michelle T. Friedland, Disqualification or Suppression: Due
Process and the Response to Judicial Campaign Speech, 104 Colum. L. Rev. 563, 615 (2004).
However, procedures vary within states and even between civil and criminal trials, as well as
jury and bench trials. Goldberg, 46 Washburn L.J. at 517. Where disqualification is for cause, the
differences between states “tend to be procedural, not substantive.” Id. at 522. Observers have
detailed some of these differences:
Some courts require the challenged judge to transfer these motions immediately to
a colleague (a presiding judge or chief judge chooses which colleague); some
require transfer only after the challenged judge has ensured the motion’s
timeliness and sufficiency; the rest let the challenged judge decide on these
motions herself. Most state and federal courts, including the Supreme Court,
follow the latter policy and rarely, if ever, require transfer. Nor is voluntary
transfer typical. Likewise, while some jurisdictions encourage or require
challenged judges to hold evidentiary hearings, most leave the decision of
whether to do so entirely to the judge’s discretion. With or without hearings,
judges in most--though again, not all--jurisdictions do not need to give a reasoned
explanation for their recusal decisions. In practice, judges have been much more
likely to give reasons when they decline to recuse themselves.
Id. at 523 (footnote omitted).
The objective of this resolution is not to seek uniformity of procedure across states or
even across different levels of courts within a state, but to assure that certain key concepts are
followed in resolving disqualification disputes.
Explanation of the Resolution
First, the Resolution puts the American Bar Association on record as supporting a
disqualification process that is clearly articulated, transparent, and timely. It is axiomatic that a
process designed to assure fairness and impartiality in the judiciary must be spelled out with
sufficient specificity and concreteness that no one could complain afterwards that no
understandable path to raise the issue and see it resolved exists. Nor should a litigant or counsel
have to guess at the process by which a decision on a motion to disqualify is considered.
Transparency is both an end itself and a means by which fairness and efficiency is promoted. It
assures that reviewable reasons are expressed on the recusal decision. Timeliness is also essential
to a system of justice. Our Due Process clauses derive from Magna Carta’s Chapter 40, which
promised: “To no one will we sell, to no one will we refuse or delay, right or justice.” Here,
timeliness anticipates that the recusal issue will be fully resolved before the time and expense of
trial or briefing and argument occur through a timely motion and by frontloading the process and
permitting some form of interlocutory review, whether by a higher court or by another authority
independent of the subject judge.
This portion of the resolution also conceptually adopts the principal elements found in
every enunciation of the grounds for recusal: actual conflict or bias, other impropriety, and the
appearance of impropriety. It further calls attention to the modern reality of campaign spending
by “recognizing certain campaign expenditures and contributions, including independent
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expenditures, made during judicial elections raise concerns about possible effects on judicial
impartiality and independence.”
Second, understanding that in many instances state procedures permit a motion for
disqualification to be considered by the judge who is the subject of the motion, the resolution
urges that procedures be put in place that would allow for independent review of an order
denying the motion. Such a procedure recognizes the difficulty anyone has in judging a matter in
which he or she is accused of having a potential bias. See, e.g., The Federalist No. 10, p. 59 (J.
Cooke ed. 1961) (J. Madison) (“No man is allowed to be a judge in his own cause; because his
interest would certainly bias his judgment, and, not improbably, corrupt his integrity.”). Still, a
judge who denies a motion to disqualify, even when later overturned, generally does not do
anything improper. The Caperton Court recognized that “inquiring into actual bias . . . is often a
private [inquiry].” Caperton, 556 U.S. at 883. Yet, it is not difficult to imagine the situation
where a judge “simply misreads or misapprehends the real motives at work in deciding the case.”
Id.
The question that must be answered, then, is “not whether the judge is actually,
subjectively biased, but whether the average judge in his position is ‘likely’ to be neutral, or
whether there is an unconstitutional ‘potential for bias.’” Id. at 881. Timely review by someone
other than the subject judge thus assures that a decision against disqualification is not personal,
but reflects a reasonable judge standard. While the judge asked to recuse may honestly believe
that he or she can hear a matter and come to a fair and impartial decision, believe that any
appearance of bias is too attenuated to act upon, and believe that the more important judicial
value at stake is the duty to sit, the availability of independent review will further assure litigants
and the public of a full and fair consideration of the potential for bias.
Finally, the Resolution urges all states and territories to provide guidance and training to
judges in deciding motions to recuse. To assure that judges understand the requirements imposed
by due process and state law and achieve a measure of uniformity in the determinations made on
recusal, educational programs and other forms of training are helpful and ought to be conducted.
Respectfully submitted,
Eugene G. Beckham, Chair
Tort Trial and Insurance Practice Section
August 2014
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GENERAL INFORMATION FORM
Submitting Entity: ABA Tort Trial & Insurance Practice Section
Submitted By: Eugene G. Beckham, Chair
1.
Summary of Resolution(s).
This resolution follows up on Resolution 107, passed at the 2011 Annual Meeting, by
urging states to establish clearly articulated procedures that assure that properly made motions to
disqualify a judge for a conflict of interest receive timely consideration, grounds for the decision
on the motion are transparent, and immediate independent review of the decision be available,
before the time and expense of a case’s merits is engaged.
2.
Approval by Submitting Entity.
Approved by the Council of the Tort Trial and Insurance Practice Section on May 1,
2014.
3.
Has this or a similar resolution been submitted to the House or Board previously?
No. While this resolution has some overlap with Resolution 107, that is both a necessity
of the subject matter and the process by which this resolution was drafted, incorporating
concerns expressed by the Conference of Chief Justices and by the proponents of previous
competing resolutions that were ultimately withdrawn from consideration by the House.
4.
What existing Association policies are relevant to this Resolution and how would they be
affected by its adoption?
The proposed resolution is consistent with existing Association policies, but expands
upon them. These policies are:
In August 1999, the ABA House of Delegates adopted Resolution 123, which included revisions
to Canon 3 of the Model Rules of Judicial Conduct and adopted an approach that would have
judicial candidates limit the size of contributions accepted in order to reduce the instances in
which recusal would be necessary. Model Rule 2.11, part of the Model Code of Judicial Conduct
adopted by the House in February 2007, addresses judicial disqualification and provides a judge
should disqualify himself or herself when a “party, a party’s lawyer, or the law firm of a party’s
lawyer has” made aggregate contributions in an amount greater than a number set by state law.
In August 2011, the House adopted Resolution 107, which urged states to establish procedures
for judicial disqualification determinations and prompt review of denials of requests to
disqualify.
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5.
What urgency exists which requires action at this meeting of the House?
The issues represented by this resolution were the product of discussions between
representatives of different groups that previously proposed competing judicial disqualification
resolutions to the House and which were withdrawn, most recently, because of objections
advanced by the Conference of Chief Justices. The resolution proposed is consistent with
concepts that each of the stakeholder groups approved.
6.
Status of Legislation. (If applicable)
Not applicable
7.
Brief explanation regarding plans for implementation of the policy, if adopted by the
House of Delegates.
Appropriate notice to relevant policymakers would be made. In addition, if adopted, the
Section plans to inform and educate judges and local jurisdictions about the Resolution and
Report.
8.
Cost to the Association. (Both direct and indirect costs)
None
9.
Disclosure of Interest. (If applicable)
None
10.
Referrals.
Judicial Division
Standing Committee on Ethics and Professional Responsibility
Standing Committee on Professional Discipline
Standing Committee on Judicial Independence
Section of Litigation
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11.
Contact Name and Address Information. (Prior to the meeting. Please include name,
address, telephone number and e-mail address)
Robert S. Peck
Center for Constitutional Legislation
777 6th St. NW, Ste 520
Washington, DC 20001
202/944-2874
FAX: 202/965-0920
E-mail: Robert.peck@cclfirm.com
12.
Contact Name and Address Information. (Who will present the report to the House?
Please include name, address, telephone number, cell phone number and e-mail address.)
Robert S. Peck
Delegate, TIPS
202/944-2874 (o)
202/27-6006 (c)
E-mail: Robert.peck@cclfirm.com
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EXECUTIVE SUMMARY
1.
Summary of the Resolution
This resolution calls for states and territories to adopt transparent and timely procedures to
ensure that judges disqualify or recuse themselves that take into account the fact that certain
campaign expenditures and contributions, including independent expenditures, made during
judicial elections raise concerns about possible effects on judicial impartiality and independence.
It further urges the adoption of a mechanism for the timely review of denials to disqualify or
recuse that is independent of the subject judge.
2.
Summary of the Issue that the Resolution Addresses
The resolution recognizes that grounds for recusal or disqualification could exist when
certain large campaign expenditures and contributions, including independent expenditures, are
made during judicial elections, because those expenditures or contributions may raise concerns
about judicial impartiality and independence. Too often, decisions about recusal are made solely
by the judge who is the subject of the motion to recuse, without any articulation of the basis for
denial of such a motion or any form of independent review. The resolution urges states and
territories to adopt procedures that will enable litigants to make timely motions, receive timely
determinations of those motions, and prompt independent review of the denial of any motion.
3.
Please Explain How the Proposed Policy Position will address the issue
By articulating the principles that must be in place to assure fair and impartial justice in
light of the potential for bias that reasonable people may view as a result of outsized campaign
contributions or expenditures and urging states and territories to provide guidance and training to
judges in deciding such motions, the proposed policy advances previous ABA resolutions on the
issue.
4.
Summary of Minority Views
The co-sponsors are not aware of any minority views or opposition.
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