CA Supreme Court On Recusal: “Mere Appearance of Bias” Not Enough
January 26, 2010
“Merit selection” supporters, treading water in many states in their attempt to eliminate democratic judicial elections, are looking to open a new front in the fight for America’s courthouse. Their latest strategy is to target judicial recusal standards — turning recusal into a back door way for special interest groups to limit the influence of citizens over judicial selection and shape the court to their own ideological ends.
Two weeks ago, the Wisconsin Supreme Court stopped such an effort in its tracks when it refused to adopt a rule that proposed automatic recusal in any case in which a litigant had made a $1,000 campaign contribution. The Wisconsin court wrote:
“[campaign] donations, endorsements or independent spending around elections are not enough to force judges off cases.”
And last week the California Supreme Court added its voice to Wisconsin’s. Law.com has the specifics of the case - here’s the money quote from the article:
“…Following an ‘exhaustive review’ of ‘a delicate realm of constitutional law,’ the justices said that ‘while a showing of actual bias is not required for judicial disqualification under the due process clause, neither is the mere appearance of bias sufficient…”
When fuzzy “appearance of bias” standards are used for recusal decisions it’s an invitation for unscrupulous trial lawyers to do whatever it takes to remove judges they fear might be unsympathetic to their cases.
Want proof? Look to Michigan. The supreme court there recently abandoned century-old recusal standards in favor of vague disqualification rules based on “appearances,” not facts. Just weeks later, trial lawyer Geoffrey Fieger demanded the state supreme court kick off three justices from the appeal of a case.
Kudos to California and Wisconsin for standing firm.