Will Texas’ legislature join Alabama & California in mandating judges recuse due to specific campaign contribution limits?

December 20th, 2012 by Bill Raftery Leave a reply »

In 2009, the U.S. Supreme Court ruled in Capteron v. Massey that some campaign contributions to judicial candidates can be so high that due process requires the judge recuse. The high court failed to specify what amount would trigger recusal, but as I noted in “The Legislature Must Save the Court from Itself”?: Recusal, Separation of Powers and the Post-Caperton World, state legislatures have tried for decades to set specific limits. It now appears Texas’ legislature may join Alabama and California in setting specific recusal limits.

HB 129 of 2013 would require judges of state’s top appellate courts (Supreme Court and Court of Criminal Appeals) recuse if a party, attorney, lawfirm, etc. contributed $2,500 or more to judge’s campaign in last 4 years.

It further provides a way to address funds made via PAC: under a formula an individual’s contribution to the PAC would count as a contribution to the judicial campaign if the PACs total contributions made to all candidates meets (or fails to meet) certain thresholds.  This avoids individuals and firms barred by the $2,5000 limit from simply setting up a PAC which then funnels the money to a campaign anyway.

Five states now have specific contribution levels compelling recusal for at least some of the state’s judges, although most do so via rule of court and not statute.

  • Alabama Code § 12-24-2(c): $2,000 for trial judges, is $4,000 for appellate jurists during “election immediately preceding his or her new term in office”. The statute has never been enforced because no one has sought pre-clearance for the statute under the federal Voting Rights Act.
  • Arizona Code of Judicial Conduct Rule 2.11(A)(4): “The judge knows or learns by means of a timely motion that a party, a party’s lawyer, or the law firm of a party’s lawyer has within the previous four years made aggregate contributions to the judge’s campaign in an amount that is greater than the amounts permitted pursuant to A.R.S. § 16-905.” This appears to mean a $872 limit.
  • California: By statute enacted in 2011 (Code of Civil Procedure 170.1) trial court judges must recuse if their campaign received $1,500 in support of the judge’s last election (if last election was in last 6 years) or in support of an upcoming election. A new rule adopted as Code of Judicial Conduct Rule 3E(5)(j) by the state’s Supreme Court in November 2012 applies a $5,000 limit to contributions for appellate justices.
  • Utah Code of Judicial Conduct Rule 2.11(A)(4):  $50 in prior 3 years. (“The judge knows or learns by means of a timely motion that a party, a party’s lawyer, or the law firm of a party’s lawyer has within the previous three years made aggregate contributions to the judge’s retention in an amount that is greater than $50.”)
  • New York Rules of the Chief Administrative Judge 151: for trial judges, $2,500 from an individual party/attorney/firm OR $3,500 in the aggregate from all parties/attorneys/firms in the prior two years. The rule was adopted in early 2011.