By Adrienne Meiring, Counsel, Indiana Commission on Judicial Qualifications
Judges and judicial candidates necessarily must forge professional and social relationships with attorneys, business leaders, and public officials to become judges and to effectively improve the legal system. Questions sometimes emerge whether these contacts create an appearance of partiality when an attorney or party who supported a judge during the selection process later appears before the judge.
This article examines disqualification issues that arise from judicial selection activities and offers guidance to judges when faced with a request to disqualify.
General Disqualification Principles under the Code of Judicial Conduct
Rule 2.11 of the Indiana Code of Judicial Conduct lists specific factors which mandate a judge’s disqualification from a case, but support of a judge’s candidacy is not one of the enumerated factors. However, Rule 2.11(A) also contains a catchall provision which requires a judge to disqualify “in any proceeding in which the judge’s impartiality might reasonably be questioned.”
The test for disqualification is whether an objective person, knowledgeable of all the circumstances, would have a rational basis for doubting the judge’s impartiality.
Campaign Support during a Judicial Election
For elected judges, three categories raise the most disqualification issues when a campaign supporter later appears before the judge: monetary contributions, leadership roles in the campaign, and other forms of public support during the candidacy.
Monetary Support
Generally, a judge will not be required to disqualify from a case merely because a party or attorney made a low-level monetary contribution. Larger monetary contributions may require disqualification, as there may be an appearance to the public that the judge is indebted to the contributor for his or her position.
Indiana does not specify in the Code a monetary contribution amount which requires that a judge disqualify when persons who made contributions in excess of that amount appear before the judge.
Rather, the Code merely advises judicial candidates to instruct their campaign committees to accept “only such contributions as are reasonable in amount” and to be especially cautious when accepting campaign contributions from attorneys and others who may appear before a successful candidate (although the Code acknowledges that such individuals are permitted to make campaign contributions). See cmmt. 4 to Rule 2.11.
The U.S. Supreme Court in Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009), provided that the proper inquiry centers on:
- The contribution’s relative size in comparison to the total amount contributed to the campaign;
- The total amount spent in the election; and
- The apparent effect of the contribution on the outcome.
Leadership Roles in the Campaign
Attorneys often serve on campaign committees, which has led to questions about the appearance of partiality when the attorney later appears before the judge on a case. In Bloomington Magazine, Inc. v. Kiang, 961 N.E.2d 61 (Ind. Ct. App. 2012), the Court of Appeals determined that a judge had abused her discretion by denying a party’s motion to recuse from a hearing to set aside a verdict, when the judge had failed to disclose that the opposing counsel had served as chairman of the judge’s election campaign three months earlier.
Although no specific recusal time was mentioned in the opinion, the court cited a Florida case which suggested a two-year timeframe was appropriate.
Other Forms of Support
In Cheek v. State, 79 N.E.3d 388 (Ind. Ct. App. 2017), Senior Judge Shepard wrote “[w]hen evaluating a motion for recusal based upon counsel’s campaign-related activities, the general principle is that timing, nature, and extent of participation in a judge’s campaign are relevant factors to consider.” Applying this standard, the appellate panel determined that a prosecutor’s limited service on a judge’s re-election campaign (in a non-leadership role), and his public endorsement of the judge in a letter did not mandate recusal. See also Abney v. State, 79 N.E.3d 942 (Ind. Ct. App. 2017).
Public Support during the Judicial Appointment Process
Questions have been raised as to whether trial court judges who seek appellate appointments are required to disqualify when attorneys who supported the judge’s quest for appointment appear before the judge. In L.G. v. S.L.,__N.E.3d__, 2018 WL 476453 (Jan. 19, 2018) the Indiana Supreme Court held that a trial court judge was not required to recuse from a case solely because counsel for a party had served as a professional reference and wrote a recommendation letter to support the trial judge’s application for an appellate vacancy.
Similarly, the fact that a public official appointed a judicial candidate to a judgeship or an individual was a member of the nominating commission who recommended the candidate for appointment should not warrant a judge’s disqualification from a later case in which the public official or commission member is a party or an attorney. See Justice Boehm’s reasoning in Peterson v. Borst, 784 N.E.2d 934, 937 (Ind. 2003).
Neither does the fact that an individual made flattering remarks about a successful candidate at an investiture ceremony warrant disqualification if that person later is involved in a case before the judge. See Justice Massa’s reasoning in Indiana Gas Co. v. Indiana Fin. Auth., 992 N.E.2d 678, 679 (Ind. 2013).
Practical Tips
When trying to determine whether disqualification is appropriate consider the following:
- Is the relationship which is being questioned a professional one or is it also a social relationship?
- How active was the person in the judge’s campaign (or attempt to get appointed)?
- Did the person play a leadership role in the judge’s selection activities?
- For elected judges, how much money/support did the person contribute to the judge’s campaign, and how likely is it that the contribution/support had an impact on the campaign?
- For appointed judges, how much support did the person contribute to the judge’s appointment bid, and did that support go beyond what was required in the application or selection process?
- How long ago did the person give support to the judge’s campaign or appointment bid?
Disclose any potential conflicts, and then give the parties an opportunity to waive the conflict.
