Saturday, February 14, 2009

Refuse to recuse

The Associated Press has raised the issue of contributions by Cannon & Dunphy to Chief Justice Abrahamson. I think its a nonissue.

Lawyers are going to contribute to judicial campaigns. They ought to. They presumably are specially interested in the administration of justice and in a strong position to evaluate the candidates.

The state supreme court is a collegial law developing court. The justices should be reluctant to recuse themselves because to do so will deprive the voters of the state of one of the people elected to resolve our state's most important legal disputes.

It does not surprise me that lawyers at Cannon & Dunphy would contribute to the Chief Justice. It is not, however, that they hope to influence her to vote in a way that she otherwise would not. It's far more likely that they find her judicial philosophy - which is more favorable to plaintiffs in tort cases - preferable to those of others, including, perhaps, Judge Koschnick.

Part of this is that it serves the firm's economic interest (although I suspect tht these lawyers also believe that such a philosophy reflects a better reading of the law and good policy), to be sure, but that is their motivation and not the Chief Justice's. She is more inclined to interpret the law in a way that shifts losses to parties that she believes are better able to bear them and tends to be more concerned with the adequacy of compensation than its costs.

Of course this doesn't mean that she is going to find for the plaintiff in every case or that those who take a different view are always going to find for the defendant. It just means that there are differences of opinion on these matters and that persons interested in judicial races are smart enough to figure those out and act accordingly.

Should she disclose the contributions? I suppose, although they are matters of public record and, if she did disclose them, she (and every other justice) ought to be very careful about recusal. If she truly believes that she can approach the case impartially (and she does), then she ought to hear it.


William Tyroler said...

Eugene Volokh would agree:
there's a perfectly plausible alternate explanation for correlation between contributions and voting patterns — that contributors contribute money to the election of those candidates whose ideologies they agree with, rather than that the elected candidates then decide based on the identities of their contributors.

Hard to argue with either estimable Prof. Still, I think Justice Prosser raises a fair concern, one for which I certainly have no suggested answer, James R. Donohoo v. Action Wisconsin, Inc., 2008 WI ¶48 :

There are ethical rules that prohibit judges from personally soliciting campaign contributions, see SCR 60.06(4), but there are no clear guidelines or bright-line rules on when a justice's campaign committee may receive contributions from a party, a party's attorney, or members of the attorney's law firm. Consequently, the receipt of contributions——which is expected and probably necessary in a system of judicial elections——is bound to raise questions and generate differing reactions.

And, although the facts are extreme, the issue of contribution as cause for recusal is raised in Caperton v. A.T. Massey Coal Co., USSC No. 08-22 (Question Presented, here), and thus worth keeping an eye on. (The Brennan Center has filed an amicus brief which notes, quoting Justice O'Connor, that "such contributions 'threaten the integrity of judicial selection and compromise the public perception of judicial decisions'"; and goes on to cite Wisconsin's recent experience as an "illustrative snapshot[] of the trend.")

Anonymous said...

I assume you mean the contribution is a "non-issue," as opposed to the issue of recusal. I strongly agree that judges rarely should recuse themselves. If they or immediate family have financial interest in a case that would appear to be a compelling reason for recusal. Otherwise, we need to assume a level of independence that can't be swayed by a campaign contribution.

Anonymous said...

If receipt of contributions is the basis for mandatory recusal, a party before the court could knock off all the Supreme Court members he or she disliked simply by making contributions to their campaign committees. That's the alternative, folks, and it's not very attractive.

Anonymous said...

Koschnick is lucky that the Chief Justice is more honorable than Gableman. If she were as slimy as Gableman and the folks who ran the independent expenditure campaign against Justice Butler, she would have a field day with this story:

Feb 14, 3:29 PM EST

Cop killer endorses Wis. Supreme Court candidate

Associated Press Writer

MADISON, Wis. (AP) -- This is not an endorsement any candidate wants - especially one running as tough on crime.

But in a letter sent from prison to The Associated Press, notorious cop killer Ted Oswald endorsed Judge Randy Koschnick's candidacy for the Wisconsin Supreme Court. Oswald said Koschnick did "exceedingly productive and good work" as his defense lawyer in 1994 and 1995 and his background as a public defender would be valuable on the court.

"If Judge Koschnick is selected for the Wisconsin Supreme Court, his voluminous first-hand knowledge of defense cases and the personalities of accused criminals would bestow to that court a fairer, more effective and more trustworthy perspective ..." Oswald wrote. "I only observed his practice on one case, but I would be inclined to see it his way."

Koschnick's defense of Oswald has become an issue in his race against Chief Justice Shirley Abrahamson in the April 7 election. Some critics, including a popular radio host, have said the link makes him unelectable.

Koschnick has predicted his opponents will exploit the case but said he is proud of his work as a defense attorney.

Notified of Oswald's endorsement, Koschnick didn't return his former client's praise.

"He is free to say whatever he wants, but his endorsement is no honor to me," the Jefferson County judge said in a statement.

Oswald is serving a life prison term for killing a Waukesha police captain in 1994 crime spree. Oswald, then 18, and his father had robbed a bank when they were pulled over and opened fire on police with semiautomatic rifles. They took a woman hostage and injured two other officers before they were arrested.

A federal judge has called the crime the most notorious in Waukesha County history, and conservative candidates such as Koschnick need to run up big margins in the county to win statewide elections.

Koschnick, then a public defender, was assigned to represent Oswald along with colleague Samuel Benedict. They argued that Oswald's abusive father brainwashed him into participating in the crime spree. But Oswald was convicted.

After 14 years as a public defender, Koschnick has served as a judge since 1999. He has tried to position himself as the candidate of law enforcement and his campaign routinely announces endorsements from police chiefs, sheriffs and district attorneys.

Koschnick pointed to those endorsements in response to Oswald's letter.

"These front line leaders, whose job it is to keep us safe, think I'm the best choice for the court, and that's what I think is important," he said.

The Oswald endorsement came to AP in a letter from Waupun Correctional Institution. He wrote that Oswald and Benedict "excelled in attempting to have the (1995) case tried in accordance with clearly established state and federal law."

"Judge Koschnick and Attorney Benedict respectfully carried out their duty to a defendant's cause," he wrote.

He also issued a lengthy defense of public defenders, who have come under scrutiny in recent Supreme Court elections. Last year, opponents of former Justice Louis Butler cited his work as a public defender in the 1980s to argue that he was soft on crime. Butler lost his bid for re-election to current Justice Michael Gableman.

Oswald wrote that defendants have a constitutional right to defense lawyers, who help prevent government prosecutors from overstepping their bounds.

"Public defenders, such as Judge Koschnick was, are vital constituents to the political structure that is the buttress of American law and civilization," Oswald wrote.

Koschnick said he agrees with that view, as does the "vast majority of the public."

Dad29 said...

Nice to note that YOU, Rick, are consistent in this matter--unlike, e.g., One Wisconsin Now.

Rick Esenberg said...


I agree that a judge should recuse herself if she feels that she cannot be impartial or if she has some interest in the outcome.

Anon 4:55

I doubt the Oswald endorsement will be used because I doubt that there will be much media at all in this election. Koschnick can't afford it. The independents won't do it for him and, as for independents who support the Chief, I can't see why they'd waste their money.

But ... I have heard that Judge Koschnick did do a very good job for Oswald.

Brother Tyroler

I fear Massey may become a case of bad facts making bad law.


Well, of course.

Anonymous said...

Long NYTimes article today (Sunday) on Massey. Rick is correct that the potential exists to produce very bad law. Just imagine the USSC coming up with a "standard" to determine when a campaign related activity requires a judge to recuse.

Anonymous said...

Sure, lawyers should be able to "pay off" judges as a "contribution" to a campaign. Yeah, Shark, keep telling yourself that!

William Tyroler said...

Long NYTimes article today (Sunday) on Massey.

You might need registration (or a paid sub; I'm not sure), but the link to the article is here. Interesting read, especially this:

In 2004, he spent $3 million on tough advertisements attacking a justice of the State Supreme Court who was seeking re-election. Some of the advertisements said the justice had agreed to free a sex offender.

(The article drily notes that "were rough and arguably misleading." Sound familiar?)

The "he" (Blankenship), CEO of a WVa coal company, personally contributed more than 60% of the winning candidate's funds; the candidate went on to cast the deciding vote in overturning a $50M verdict against the coal company. Blankenship may not have been formally a party to that suit but as CEO he had a relatively substantial, direct financial interest in the outcome (the NYT aticle pegs it at 175k). And here we are, in the Supreme Court.

Rick is correct that the potential exists to produce very bad law.

Perhaps those who think "very bad law" might be in the offing ought to spell out the details. It strikes me that it's "very bad law" that we'd allow a judge to rule on a case in which his principal campaign donor was intimately involved. And it also seems to me that we've got "very bad law" now, where one recent Justice (Wilcox) has suffered rebuke for his election campaign with another (Gableman) allegation pending.

In any event (and granting that it's foolish to make predictions), it's hard to see the Court wading too deeply into this federalism thicket. As one of the partisans in the case has argued:

the Supreme Court should step in to declare a due process floor—which surely Justice Benjamin sank below—for judicial recusal in cases involving parties who have donated substantial sums to a judge’s election campaign.

Why would that be "very bad"?

But, back to our friend Blankenship:

Mr. Blankenship cheerfully conceded that his real objection was to Justice McGraw’s rulings against corporate defendants. “Being the street fighter that I am,” he said, he had instructed his aides to find a decision that would enrage the public.

When they returned with an unsigned opinion in the sex abuse case, which Justice McGraw had joined, Mr. Blankenship said he knew he had hit pay dirt. “That killed him,” Mr. Blankenship said of Justice McGraw, smiling.

Also sounds familiar.

Anonymous said...

Mr. Tyroler,

You omitted the fact, reported by the NYTimes, that the Judge has ruled against Massey in several cases.

You ask for details re the potential for bad law. In my opinion, any "standard" requiring recusal in the case of campaign donors would be hopelessly amgiguous and subject to gaming and manipulation. And in this specific case the large sums involved were not direct contributions but instead were independent "issue advocacy," which the USSC has held to be protected speech.

I invite you to suggest a workable standard.

William Tyroler said...

You omitted the fact, reported by the NYTimes, that the Judge has ruled against Massey in several cases.

I'm not quite sure this "fact" was indeed reported in that article. No matter. I don't know why the omitted fact (if fact it is) would have any signficance, and I'll let the plain-spoken Blankenship himself provide at least some of the explanation:

“I’ve been around West Virginia long enough to know that politicians don’t stay bought, particularly ones that are going to be in office for 12 years,” he said, referring to the terms of State Supreme Court justices.

Justice Benjamin stayed bought just long enough to do his biggest donor a big favor. Granted, that assertion overstates things a bit: unless Benjamin has a bit of Roland Burris in him, the idea that Benjamin was minded to shade his vote toward Massey as a reward for its CEO's largesse remains unprovable. But that gets us to the heart of the problem, which is whether recusal may be grounded on the reasonable appearance of (as opposed to actual) partiality. Crudely put: whether "objective" (i.e., reasonable appearance of) as well as subjective bias triggers recusal.

And so the case (at least in my view) ultimately turns on whether you can have the appearance of judicial bias sufficiently elevated to trigger a litigant's due process right to a fair tribunal. It stinks to high heaven that a CEO can fund a candidate to a massive extent and then soon after have that candidate rule in his company's favor.

I invite you to suggest a workable standard

As to a possible standard, well, that's what lawyers and judges do, pronounce standards at a high level of generality, and then over time apply them in discrete factual settings. This is Theodore Olson's (lead counsel for the petitioner) proposal: "due process requires recusal not only where there is proof that a judge is actually biased, but also where an objective inquiry establishes a probability of bias on a judge’s part." I'm not sure why that isn't a workable standard.

I'll turn it back around: if an "objective" test is inadmissible, then what? No recusal unless the judge or justice frankly acknowledges that he or she can't or won't be impartial? That's a test that, quite frankly, requires a whole lot more trust than I'm willing to repose in the judiciary. An objective test at least holds the promise of judicial accountability -- and isn't that the very goal of those who most fervently support an elected judicary?

Scot1and said...

This month's ABA Journal had an article on the Massey Case. One of the "cures" that was suggested was not allowing a judge to handle his own recusal hearing. The ABA noted that in Illinois another judge must decide whether recusal is approrpriate. I'm not sure that fixes 100% of the appearaqnce problem but its a start.

Anonymous said...

SI, If you apply the 'cure' from the ABA journal, who then would recuse a judge? If other judges (I assume) were responsible, couldn't the result be controlled by whatever 'faction' holds sway in that particular state? If we are so very worried (and I do not mean to say we should not be worried) about the appearance of, as well as actual bias, wouldn't we just be shifting appearances of bias to the entire court?

If it is happening, then it follows that a majority of 'conservatives' would recuse 'activist' judges more often than their own and vice-versa. Now the 'appearance' of bias lies upon the whole court. If it is not happening, then the whole debate is a non-issue.

I am not suggesting it is a non-issue, I am merely agreeing with George Mitchell's inference that coming up with a workable standard will not be an easy chore. I think it would be easier to maintain the appearance of non-bias by taking out the election process.