Monday, December 13, 2010
I am including the link for the report of the ABA Standing Committee on Judicial Independence to the ABA House of Delegates. The report is entitled "Recommendations for Improving Judicial Disqualification Practices and Procedures Among the States" It covers disclosure and recusal.
http://new.abanet.org/committees/judind/PublicDocuments/JDPReportOct82010.pdf (24 pages). Here is the Committee's set of recommendations:
RESOLVED, that the American Bar Association adopt the following recommendations of the Judicial Disqualification Project, dated October 8, 2010, in order to improve judicial disqualification practices and procedures among the States*/ and promote public confidence in the State courts:
*/ When capitalized, the term “State” or “States” as used herein refers to courts or legislatures (unless the context otherwise requires, e.g., State judiciaries), depending on which has regulatory authority over the judicial disqualification practices and procedures within the jurisdiction, and also encompasses the District of Columbia and U.S. territories, and the term “state courts” includes the non-Article III courts in the District of Columbia and U.S. territories.
I. Each State should have in place clearly articulated procedures, whether statutory or judicial rules-based, for the handling of disqualification determinations and the review of denials of such motions. These procedures should be designed to produce resolutions of judicial disqualification issues that are both prompt and meaningful.
II. In States in which judges face election of any kind:
A. States should consider adopting disclosure requirements for litigants and lawyers that have provided, directly or indirectly, campaign support in an election involving a judge before whom they are appearing, in order to facilitate a determination whether, under the circumstances, the judge‟s impartiality might reasonably be called into question.
B. States should consider providing guidance to judges about their disclosure obligations and about the circumstances under which presiding over a case involving litigants or lawyers who previously contributed to an election involving the judge might reasonably be perceived as calling the judge‟s impartiality into question.
C. States should consider providing improved case management systems or other resources to help their judges promptly identify recusal issues.
FURTHER RESOLVED, that the recommendations and report of the Judicial Disqualification Project be transmitted to the highest court of each State and to any other entities which have regulatory responsibility for judicial disqualification practices, and procedures in the jurisdiction.
In my opinion, the report is overly temperate. Disclosure is not enough. Moreover, how often is a lawyer going to ask a judge to recuse himself or herself? I suspect most judges will believe that they can act evenhandedly and may reject recusal. The lawyer then may have to appear before a judge who did not react kindly to the recusal request.