This post is an excerpts from a paper prepared by the National Center for State Courts. NCSC gave permission to reprint this article. Please let me know if you would like a copy.
Case-law Following Republican Party of Minnesota v. White, 536 U.S. 765 (2002)
Based on the First Amendment, challenges have been filed to 3 disqualification requirements. Canon 3E(1) in the 1990 model code and Rule 2.11(A) of the 2007 model code require a judge to disqualify himself or herself when the “judge’s impartiality might reasonably be questioned.” The 1990 model code was amended after White to also require disqualification when the judge, “while a judge or a candidate for judicial office, has made a public statement that commits, or appears to commit, the judge with respect to (i) an issue in the proceeding; or (ii) the controversy in the proceeding.” That provision was revised in Rule 2.11A(5) of the 2007 model code to require a judge to disqualify, if, “the judge, while a judge or a judicial candidate, has made a public statement, other than in a court proceeding, judicial decision, or opinion, that commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy.” The 7th Circuit, in a case from Indiana, and 2 district courts in Kentucky and North Dakota have rejected constitutional challenges to disqualification requirements, [Family Trust Foundation of Kentucky v. Wolnitzek, 345 F. Supp. 2d 672 (Eastern District of Kentucky 2004); North Dakota Family Alliance v. Bader, 361 F. Supp. 2d 1021 (District of North Dakota 2005)] finding the rule was narrowly tailored to serve a compelling state interest in impartiality and stating, if recusal laws were invalidated, the state’s ability to safeguard the impartiality or appearance of impartiality of the judiciary would be greatly compromised.
In Bauer v. Shepard, 620 F.3d 704 (7th Circuit 2010), petition for certiorari denied, 131 S. Ct. 2872 (2011), the 7th Circuit held that “the recusal clause does not present a constitutional issue at all.”
The recusal clause applies to a judge in his role as public employee, not his role as candidate. It specifies how a public employee will perform official duties (or, rather, which public employee will be assigned to which duties). . . . The state, as employer, may control how its employees perform their work, even when that work includes speech (as a judge’s job does). Rule 2.11(A)(5) represents a decision by the State of Indiana to assign to each lawsuit a judge who has not made any statement “that commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy.” That decision is unexceptionable.
No public employee is entitled to do any particular task; a state may select the employee who can best do the job. . . . [A] state may decide to assign each case to a judge whose impartiality is not in question. All Rule 2.11(A)(5) does is allocate cases among judges . . . . States are entitled to protect litigants by assigning impartial judges before the fact, as well as by removing partial judges afterward.
In contrast, a federal district court in Wisconsin held that the requirement that “a judge shall recuse himself or herself in a proceeding when . . . the judge, while a judge or a candidate for judicial office, has made a public statement that commits, or appears to commit, the judge with respect to any of the following: 1. an issue in the proceeding. 2. the controversy in the proceeding” was unconstitutionally overbroad and vague, and indistinguishable from the announce clause. Duwe v. Alexander, 490 F. Supp. 2d 968 (Western District of Wisconsin 2007). [The comparable model code provision (Rule 2.11(A)(5)) requires a judge to disqualify if “the judge, while a judge or a judicial candidate, has made a public statement, other than in a court proceeding, judicial decision, or opinion, that commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy.”] The court concluded:
While it is true that the recusal requirement is not a direct regulation of speech, the chilling effect on judicial candidates is likely to be the same. Although a candidate would not fear immediate repercussions from the speech, the candidate would be equally dissuaded from speaking by the knowledge that recusal would be mandated in any case raising an issue on which he or she announced a position.