TORONTO, Aug 8 (Reuters) - The American Bar Association on Monday voted to adopt guidelines urging states to enact new procedural rules on judicial disqualification -- a response to what the ABA sees an increasing influence of money in judicial politics across the U.S.
"No one should be a judge in his or her own case," said William Weisenberg, a member of the ABA committee that drafted the resolution. The matter was brought to the floor during the House of Delegates session of the annual ABA meeting, now under way in Toronto. It was passed by a voice-vote from the 566-member policy-making body.
The ABA's effort was sparked in part by two recent U.S. Supreme Court decisions, one dealing with disqualification and the other with money in politics. Capteron v. A.T. Massey, a 2009 decision, urged states to adopt "more rigorous" recusal rules. Citizens United v Federal Election Commission, in 2010, allowed unlimited spending by interest groups in political campaigns.
That ruling created concern that spending in judicial election would rise even more. Fundraising in state supreme court races more than doubled in the decade that ended in 2009 from the decade that preceded it, according to Justice at Stake, a Washington-based group that advocates for less spending in court races.
The cornerstone of the ABA's guideline is a suggestion that states institute a prompt appeals process for judicial recusal motions. Such a process would help prevent a judge from acting as the ultimate arbiter of his or her own disqualification.
The guidelines also suggest states enact disclosure requirements for spending on judicial races by lawyers and litigants - both for direct campaign contributions and indirect support . In some states, judicial campaigns are supported largely by trial lawyers and other interest groups that spend heavily on advertising, according to Justice at Stake.
The ABA's one-page guidelines and a lengthy report of recommendations attached to it were nearly four years in the making. An earlier version of the guidelines was pulled from a vote at the ABA's mid-year meeting in Atlanta in February because it didn't have enough votes to pass.
At the end of July the guidelines, which were drafted by the ABA's Standing Committee on Judicial Independence, gained an important endorsement from the ABA's Judicial Division, which became a co-sponsor of resolution.
G. Michael Witte, chair of the ABA's judicial division, told Reuters in an interview before the house of delegates vote that judges had expressed concern that a previous version of the report was too prescriptive for states. They determined, however, that the language in the current resolution was broad enough to allow individual state courts to craft their own rules in ways they preferred.
"We wanted to make sure there was a menu of options available to the states," said Witte, who is the executive secretary of the Indiana Supreme Court Disciplinary Commission and a former Indiana state court judge. "We wanted to make sure the report was neutral rather than advocating."
Since the Supreme Court Caperton decision, just one state, Michigan, has fundamentally rewritten its rules about how parties can challenge a judge that ruled not to disqualify him or herself, according the Brennan Center for Justice, an advocacy group. Several other states including Georgia, Mississippi and Texas already had rules concerning the issue on the books.
"Reforming these procedures is always a slow process, but to have an organization as significant as the ABA underlining the importance of these changes can only spur courts to take a close look at reform," said Adam Skaggs, an attorney with the Brennan Center.
In addition, nine states have adopted new rules laying out standards for judicial recusals when it comes to campaign contributions, according to the Brennan Center. Two other states, Tennessee and Georgia have new rules pending.
These new rules vary significantly. New York, for instance, mandates that if a judge receives a contribution of more than $2,500 in campaign contributions from a party or law firm in the past two years, he or she must be automatically disqualified. Oklahoma, on the other hand, doesn't set a monetary threshold but advises judges to be disqualified when they have received "an amount that a reasonable person would believe" could affect a judge's fairness.
(Reporting by Carlyn Kolker; additional reporting by Leigh Jones)