CAPERTON Decision Prompts Changes to Judicial Recusal Standards and Procedures

Spring 2010

By Stephen R. Klein

In June of 2009, the Supreme Court decided the case Caperton v. A. T. Massey Coal Co.1 The Court ruled, in a 5-4 decision, that the due process clause of the 14th Amendment is violated when a judge denies a recusal motion based on the judge’s benefit of “extraordinarily large” campaign contributions or independent expenditures from the opposing party.2 Before this ruling, the 14th Amendment required recusal only when the judge had a financial interest contingent on the outcome of the case, or if the judge had participated in a previous stage of the case and was likely biased from that participation.3 The majority ruled that “[d]ue process requires an objective inquiry into whether the contributor’s influence on the election under all the circumstances ‘would off er a possible temptation to the average . . . judge to . . . lead him not to hold the balance nice, clear and true.’”4 The majority did not name a specific figure, but the amount in question was $3 million in independent expenditures.5 Chief Justice Roberts, in dissent, argued that while the majority’s interpretation greatly expanded the previous standard, its opinion failed to articulate a new objective inquiry, and Justice Roberts listed forty separate “fundamental questions” that courts have to determine in light of the majority opinion.6

Before Caperton, the American Bar Association ratified a revised Model Code of Judicial Conduct [“MCJC”] in February of 2007.7 The MCJC contains a number of disqualification rules that do not rise to pre-Caperton due process requirements, and addresses disqualification for judicial campaign contributions and expenditures by providing a framework in Rule 2.11(A)(4):

A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality* might reasonably be questioned, including but not limited to the following circumstances . . . . The judge knows or learns by means of a timely motion that a party, a party’s lawyer, or the law firm of a party’s lawyer has within the previous [insert number] year[s] made aggregate* contributions* to the judge’s campaign in an amount that [is greater than $[insert amount] for an individual or $[insert amount] for an entity] [is reasonable and appropriate for an individual or an entity].

Following Caperton, MCJC 2.11(A)(4), previously a framework for a professional standard, has become a framework for a constitutional standard. Early last year, one professor opined that “the bulk of states will soon be reviewing and probably adopt the 2007 Judicial Code, including . . . 2.11 and commentary by 2010.”8 As of this writing, seventeen states have adopted the new MCJC with varying provisions.9 Caperton will likely accelerate the process: the decision has already influenced changes in recusal standards in some state court rules, prompted discussion of changes in other states and at the federal level, and will likely influence state legislation that stalled prior to the decision.

Soon after Caperton, the Nevada Judicial Conduct Code Commission “recommend[ed] adoption of new Rule 2.11(A)(4) mandating a judge’s disqualification based on aggregate campaign support that exceeds $50,000 within the previous 60 years from a party, its affiliates or lawyers.”10 In September, the Washington State Supreme Court Code of Judicial Conduct Task Force published a proposal for a new judicial code, one that will require disqualification when “an adverse party has provided financial support . . . for any of the judge’s judicial election campaigns within the last six years in an amount in excess of 10 times the dollar amount of the campaign contribution limit established by [law].”11 In December, the Michigan Supreme Court amended the Michigan Court Rules to adhere to the Caperton decision, making a specific citation to the case but declining to set a specific contribution amount.12 The rule change also provides de novo review by the entire Michigan Supreme Court when an individual justice denies a recusal motion.13 Also in December, the California Commission for Impartial Courts issued its Final Report.14 The report recommends mandatory disqualification for a judge in “any matter involving a party, counsel, party affiliate, or other interested party who has made a monetary contribution of [$1,500 or greater] to the judge’s campaign, directly or indirectly.”15 In January, the Wisconsin Supreme Court adopted a rule that distinguishes Caperton and says that “campaign donations from people and groups with cases before the court are not, by themselves, enough to force judges off cases.”16 So far, Caperton has only impacted rules of judicial conduct, but it may also lead to procedural options for attorneys beyond recusal motions.

In some areas where it is not currently provided, Caperton has encouraged discussion of rule changes that would allow a peremptory challenge of a judge in a case. In Florida, the Judicial Ethics Advisory Committee and the Rules of Judicial Administration and Ethics Committee have formed a joint subcommittee to consider new recusal standards.17 “It’s too early to say what the committee may recommend, but [the JEAC chair] said he’s interested in an approach that combines the peremptory challenge and referring recusal motions to a second judge.”18 The peremptory challenge of judges was also recently discussed at the federal level. The U.S. House Judiciary Subcommittee on Courts and Competition Policy held hearings in December to discuss implementing new rules that will ensure the federal courts adhere to Caperton.19 Some, including Judge Margaret McKeown of the Ninth Circuit Court of Appeals and Professor Eugene Volokh, argued that the proper framework is already in place for judges to adhere to the decision.20 Others, including Professor Charles Geyh and Norman Reiner, president of the National Association of Criminal Defense Lawyers, supported modifying the federal disqualification statutes— 28 U.S.C. sections 144 and 455, respectively—to include a peremptory challenge.21 The peremptory challenge is currently available in about twenty states.22 So, Caperton may influence the creation of new standards for practicing attorneys as well as judges.

Before the Caperton decision, some state legislatures were considering rules that require mandatory recusal based on campaign contributions or expenditures. In Georgia, a bill was introduced in early 2009 that reads, in pertinent part: “A judge or Justice of any court that is elected to such office shall recuse himself or herself from any case before his or her court . . . [i]nvolving a party or his or her attorney that has made an influential action concerning a campaign of the judge presiding over the party’s case during the election of such judge.”23 The bill did not pass and will carry over to the 2010 legislative session. In Montana, a bill was considered that stated “A justice of the supreme court may not participate in a hearing on oral argument of a case before the court or in an opinion or order of the court concerning that case if a campaign contribution from a party or an attorney representing a party to that case was made . . . in excess of the amount allowed.”24 The draft “died in process” and is described as “probably dead” on the Montana legislature’s website.25 The bills in these states were delayed or died before Caperton: in the coming months, like states considering the new MCJC, these bills may be considered more favorably in light of the decision.

Caperton expanded the influence of 14th Amendment due process on judicial recusal, but the question of where a judge’s discretion ends and due process begins—especially in light of judicial campaign finance—has led to a plethora of answers across the country. And the questions do not end there. Some have argued that the Caperton precedent has created “[t]he ability to disqualify elected judges with little oversight or accountability,” 26 or that entrusting recusal decisions to other judges (such as the changes to the Michigan Court Rules) will politicize recusal. Furthermore, Caperton could raise numerous questions regarding the Court’s previous ruling for broad protection of judicial campaign speech in Republican Party of Minnesota v. White in 2002, 27 especially in light of the recent Citizens United decision that ruled in favor of unlimited independent expenditures by corporations and unions.28 Others, however, applaud the decision.29 Some see the case as a ruling not merely against judicial campaign influence, but judicial campaigns themselves: Caperton has been cited as one reason to undo judicial elections entirely.30 The legal community will continue to debate whether the decision is a benefit or a detriment to the judiciary, but there can be little doubt as to its impact. The president of the ABA contends Caperton is not “the final word on this issue” of judicial recusal.31 Given the myriad responses of states—by courts, committees, legislatures, and scholars—to where judicial campaign finance support ends and undue influence begins, Caperton is likely just the beginning of a discussion for a new paradigm for judicial recusal.



1 129 S. Ct. 2252 (2009).

2 Id. at 2265.

3 Id. at 2259–62.

4 Id. at 2264 (citing Tumey v. Ohio, 273 U.S. 510, 532 (1927)).

5 Caperton, 129 S. Ct. at 2257.

6 Id. at 2269–72 (Roberts, J., dissenting).

7 See Model Code of Jud. Conduct (2007), available at

8 Jeffrey W. Stempel, Chief William’s Ghost: The Problematic Persistence of the Duty to Sit, 57 Buffalo L. Rev. 813, 956 (2009).

9 ABA Center Prof ’l Responsibility Pol’y Implementation Comm., Comparison of ABA Model Judicial Code and State Variations (2010), available at (last viewed Jan. 28, 2010).

10 Supplement to the Final Report Dated April 1, 2009, In the matter of the Amendment to the Nevada Code of Judicial Conduct, August 12, 2009, available at

11 Washington State Supreme Court Code of Judicial Conduct Task Force, Proposed New Washington State Code of Judicial Conduct, September 8, 2009, at 21–22, available at

12 Mich. Ct. R. 2.003(C)(1)(b), available at

13 “If the challenged justice denies the motion for disqualification, a party may move for the motion to be decided by the entire Court. The entire Court shall then decide the motion for disqualification de novo.” Mich. Ct. R. 2.003(D)(3)(b).

14 Commission for Impartial Courts: Final Report: Recommendations for Safeguarding Judicial Quality, Impartiality, and Accountability in California, available at nalreport-attacha.pdf.

15 Id. at 34–35.

16 Patrick Marley, Court Adopts New Campaign Donation Rules, Milwaukee J. Sentinel, Jan. 21, 2010 (emphasis added), available at

17 Gary Blankenship, Gary, To Recuse or Not to Recuse: How to do it is the Real Question, Fla. Bar News, Nov. 1, 2009, available at!OpenDocument.

18 Id.

19 Melissa Lipman, Recusal Experts Back Peremptory Judicial Challenge, Law 360, Dec. 10, 2009,

20 Id.

21 Id.

22 Blankenship, supra note 17.




26 Editorial, Judges Gone Wild, Wall St. J., Dec. 26, 2009, at A10, available at

27 536 U.S. 765 (2002).

28 Citizens United v. FEC, 558 U.S. __ (2010).

29 See JAS – Legal Reform Groups Hail Caperton Ruling,

30 See, e.g., Devera B. Scott et al., The Assault on Judicial Independence and the Uniquely Delaware Response, 114 Penn St. L. Rev. 217, 234–47 (2009).

31 H. Thomas Wells Jr., President, American Bar, Association, statement on the ruling of The Supreme Court of The United States in Caperton Et Al. v. A.T. Massey Coal Co., Inc., Et Al. (June 8, 2009),


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