Contact:  Sandy Adkins
Communications Specialist
National Center for State Courts

One year after Caperton, many states grapple with judicial recusal

Williamsburg, Va. (June 7, 2010) — When the U.S. Supreme Court decided on June 8, 2009, that an "extraordinary" level of campaign support for judicial candidates would require their recusal, the court placed heavy emphasis on states’ judicial canons, or codes of conduct, to ensure both the appearance and reality of fair and impartial courts.

Justice Anthony M. Kennedy, writing for the majority in Caperton v. A.T. Massey Coal Co., noted: "These codes of conduct serve to maintain the integrity of the judiciary and the rule of law." In the year following the court’s decision, many state judiciaries, and state legislatures, have been trying to come to terms with the ramifications of the Caperton decision.

A special commission established by the state’s Judicial Council recommended changes to the Judicial Code of Conduct that would have included automatic recusal of a judge hearing cases involving parties or attorneys who gave certain amounts to the judge’s campaign. The California Legislature is considering making such recusal a requirement of law. AB 2487 would require recusal when a party or attorney gave $1,500 to the judge’s campaign. The bill passed the assembly in May and is currently pending in the state’s senate.

HB 601 would have statutorily required recusal if an attorney or party made certain donations or the judge personally solicited any amount of money from the party or attorney. The bill died at the end of the 2010 session with no action taken.

The state’s Supreme Court modified its recusal rules in November 2009 to specifically include Michigan’s justices under the recusal provisions, which are the same as those spelled out in the Caperton decision. Under the new rule, if a Supreme Court justice denies a motion to recuse, a majority may compel the justice to do so.

LC 2027 would have required the state’s Supreme Court justices to recuse themselves in any case where a party or attorney gave $250 or more to their campaigns. The bill died at the end of the session.

The state’s Supreme Court revised its Judicial Code of Conduct, but rejected language to compel recusal for contributions of $50,000 or more.

New York
AB 6879 would require recusal when the judge’s campaign received $500 or more from any party or attorney appearing in a case.

The state’s legislature considered a variety of bills on the subject of campaign contributions and judges. HB 1359 and SB 1152 would have prohibited making or accepting political contributions in a courthouse. HB 4548 would have set a $1,000 threshold for recusal for judges on the state’s Supreme Court and Court of Criminal Appeals. None of the bills were enacted.

The state’s Supreme Court is considering a rewrite of the state’s entire Code of Judicial Conduct to include mandatory recusal for campaign contributions in excess of specific threshold levels.

The state’s Supreme Court has changed its canons twice since the Caperton v. Massey decision. In October 2009, the court amended the Code of Judicial Conduct to specify  that a judge need not recuse based solely on independent expenditures, such as those at issue in Caperton, or solely on any "lawful campaign contribution." The court rescinded those changes in early December, and is still considering changes to the Judicial Canons on the subject. In November 2009, the legislature enacted an optional public financing system for Supreme Court races.


The NCSC Backgrounder is designed to provide the media with statistics and facts related to current issues of interest.

The National Center for State Courts, headquartered in Williamsburg, Va., is a nonprofit organization dedicated to improving the administration of justice by providing leadership and service to the state courts. Founded in 1971 by the Conference of Chief Justices and Chief Justice of the United States Warren E. Burger, NCSC provides education, training, technology, management, and research services to the nation's state courts.