Blind Justice: The Right To An Unbiased Judiciary
"Ultimately, the legislature, as representatives of the people, have a duty to act as a check on the government, ensuring standards necessary to guarantee the integrity and impartiality of the judiciary."
Whether justice is truly blind is an open question for many Montanans. Within the last year, the state Supreme Court justices refused to recuse themselves in a case regarding the way in which justices are elected, a bill which they struck down. Just last December, a select legislative committee issued a report documenting the failure of judges and justices to timely recuse themselves due to conflicts of interest in another legislative bill. In order to ensure an unbiased and co-equal judicial branch, the legislature rightfully notes that clearer recusal requirements are necessary.
Currently, Montana’s Judicial Code has recusal requirements for any judge whose “impartiality might reasonably be questioned” when the judge has a personal bias or prejudice concerning one of the parties. Generally, recusal is considered by the judge if there is the appearance of a conflict of interest. For example, if one of the parties to a case is a family member, friend or former client. The issue in Montana, however, is that the judge decides whether their recusal is necessary. Worse, judges are not required to recuse themselves from presiding over a case brought by one of their major campaign donors. With recent Supreme Court elections bringing in record spending, this is more relevant than ever before. What is severely lacking is a mechanism to require recusal when parties to the lawsuit believe the judge to have a personal bias or prejudice.
The issue of judicial recusal has been long understood as a serious issue by the legal community. Almost a decade ago, the center-left think tank Center for American Progress (CAP) released a report highlighting the severe lack of mandatory recusal mechanisms across the country. Montana received a failing grade. That same year, the American Bar Association (ABA) urged states to adopt statutory recusal requirements. They recommended states provide a timely and transparent mechanism to motion for a judge’s recusal, yet Montana didn’t heed ABA’s calls for reforms.
In 2010, the Utah Supreme Court adopted a new code that requires a judge to be recused when the judge knows or is made aware that one of the parties has contributed more than $50 to the judge’s reelection within the last three years. In California, the state legislature passed a law requiring recusal when a judge had received a campaign contribution exceeding $1,500 from a party within the last six years. However, the recusal can be waived at the discretion of the party that did not contribute. Both states received the highest score in CAP’s report on mandatory recusal.
In Montana, Senator Greg Hertz has introduced SB 201, a bill that would revise Montana’s recusal requirements for campaign contributions. By request of one of the litigants, a judge must recuse themselves if the other party contributed the maximum amount to the judge’s reelection campaign in the last six years. The maximum varies by position, $10,000 for Supreme Court justices and $5,000 for other judges. If all parties agree there is no issue, then no recusal is necessary.
During the hearing on SB 201, opponents voiced their belief that it is the sole purview of the judiciary to determine its own code of ethics, maintaining that the legislature should not get involved. This belief is not shared by reputable groups on both the left and right that have called for legislative standards for recusals when campaign contributors show up in the courtroom. As discussed previously, other state legislatures have already taken action to improve oversight over judicial recusal standards.
Ultimately, the legislature, as representatives of the people, have a duty to act as a check on the government, ensuring standards necessary to guarantee the integrity and impartiality of the judiciary. Whether passed by the legislature or adopted by the Montana Supreme Court, stronger recusal requirements can rebuild the judiciary’s legitimacy and reduce bias.