A constitutional duty to recuse?
on Dec 27, 2005 at 10:38 pm
Should an elected judge, who accepts large campaign donations, sit on a case that directly affects the financial or business interests of the donors and their associates? Put as an ethical question, the answer would seem to be obvious: No. But the Supreme Court is being asked to rule on that question as a constitutional issue: does the due process clause create a duty to recuse in such a situation?
If the Court agrees to address the issue in that form, it would be drawn deeply into a particularly tangled political thicket: the financing of state judicial campaigns. Among other issues the Justices might have to confront: how close a link between money and a judicial decision, joined in by a judicial recipient of the money, must there be in order to result in a violation of the guarantee of due process?
The Court is confronted with the issue in the midst of a Term in which it already has agreed to get involved anew — to an unusual degree — in constitutional issues and state politics. It is re-examining the federal campaign law’s limits on grass-roots election advertising, addressing a state campaign law’s curbs on state candidate spending, and studying partisan gerrymandering of congressional districts by state legislatures.
The new question of recusal of elected judges is raised explicitly in a newly filed case from Illinois, involving a justice of that state’s Supreme Court, and a ruling in which he cast one of the deciding votes that scuttled a huge verdict against a private insurance company — a company closely linked to major campaign donations to that justice. The case is Avery, et al., v. State Farm Mutual Automobile Insurance Co. (Filed on Tuesday, it does not yet have an assigned docket number. It probably arrived too late to be decided this Term, if granted.)
Here is the specific question the Avery petition poses: “May a judge who receives more than $1 million in direct and indirect campaign contributions from a party and its supporters, while that party’s case is pending, cast the deciding vote in that party’s favor, consistent with the Due Process Clause of the Fourteenth Amendment to the United States Constitution?”
The petition concedes that the Court “has never directly addressed the requirements of recusal under the Fourteenth Amendment’s Due Process Clause as a result of the appearance of impropriety and the effect on public perceptions of the integrity of the ocurts caused by large campaign contributions to judicial candidates.”
The case grows out of the participation in a decision in State Farm’s favor, in an auto insurance coverage case, of Justice Lloyd Karmeier. The petition to the Court argues that Karmeier raised and spent more than $4.8 million to win a seat on the state court in November 2004. A sizable portion of that sum, the petition contends, came from individuals associated with State Farm, or with organizations of which it was a member or contributor. The petition says he thereafter participated, after refusing to recuse, in the State Farm ruling. His vote, the appeal argues, was decisive in a part of the split decision that spared State Farm from as much as $457 million in damages.
State Farm, which opposed the move to get Karmeier off the case, has 30 days to respond to the appeal.
