Discussion
The Nevada Code of Judicial
Conduct sets forth the applicable standards from which judges are provided
guidance for ethical conduct.
Canon 3E(1) of the Nevada Code of
Judicial Conduct states:
“A judge shall disqualify himself
or herself in a proceeding in which the judge’s impartiality might reasonably be
questioned, including but not limited to instances where . . .”
Canon 3E(1), subparts (a) through
(d) lists instances in which a judge is required to recuse himself or herself
from presiding over a matter, but does not specifically list an attorney’s
support of the judge’s election campaign as grounds upon which a judge should
recuse himself or herself.
The Commentary to Canon 3E(1),
however, addresses campaign contributions as follows:
“The mere receipt of a campaign
contribution from a witness, litigant or lawyer involved with a proceeding is
not grounds for disqualification.”
In City of Las Vegas Downtown
Redevelop. Agency v. District Court, 116 Nev. Adv. Op. No. 74, 5 P.3d
1059 (2000), the Court issued a writ of mandamus directing a district court
judge to preside over a case in which the judge recused himself because he had
received campaign contributions from some of the parties involved on one side of
the litigation. The judge stated that he recused himself in order to protect
the appearance of judicial impartiality even though the judge stated that the
contributions received in amounts ranging from $150 to $2,000, did not cause him
to be biased and did not, in fact, render him unable to act impartially in the
proceeding.
Because other judges had also
received campaign contributions from the same parties, the judge’s decision to
recuse himself caused a “chain-reaction” of recusals by other judges to whom the
case was reassigned. In directing that the first judge preside over the case,
the Supreme Court stated:
“In the context of campaign
contributions, we have recognized that a contribution to a presiding judge by a
party or an attorney does not ordinarily constitute grounds for
disqualification. See In re Petition to Recall Dunleavy, 104 Nev. 784,
769 P.2d 1271 (1988). Indeed, we commented that such a rule would "severely and
intolerably" obstruct the conduct of judicial business in a state like Nevada
where judicial officers must run for election and consequently seek campaign
contributions. Id., 104 Nev. at 790, 769 P.2d at 1275; see also O'Brien v.
State Bar of Nevada, 114 Nev. 71, 76 n.4, 952 P.2d 952, 955 n.4 (1998)
(judge serving on state bar board of governors was not disqualified from voting
on appointment to commission on judicial selection despite having received over
$100,000.00 in campaign contributions from a prospective appointee and her
partner).
“In recognition of this recurring
problem of campaign contributions, this court recently amended the commentary to
NCJC 3(E)(1) to include the following guidance: ‘The mere receipt of a campaign
contribution from a witness, litigant or lawyer involved with a proceeding is
not grounds for dis-qualification.’ NCJC Canon 3(E)(1) Commentary (2000).
“We note that Judge Denton's
minute order indicated that his recusal was made ‘notwithstanding the lack of
actual or implied bias, prejudice, partiality, or impropriety.’ Therefore, we
see no reason why Judge Denton cannot preside over the matter, and accordingly
we grant the Agency's petition for a writ of mandamus.”
The Nevada Supreme Court, has
therefore, made clear that a judge is not required to, and should not, recuse
himself or herself from presiding over a matter merely because an attorney has
contributed to the judge’s election campaign.
The same rule appears to apply in
regard to attorneys who have publicly endorsed a judicial candidate’s election.
Attorneys are frequently asked to endorse judicial candidates and to allow their
names to be listed on campaign literature as supporters of the candidate or as
a member of his or her “campaign committee.” Candidates for judicial office
presumably seek such endorsements to demonstrate to the voters that they have
the respect of the legal community and are considered worthy of judicial office
by those most actively involved in the legal system. Likewise, attorneys have a
legitimate interest in supporting qualified candidates for judicial office. It
would be counterproductive to the election of qualified judges if attorneys
could only endorse or publicly support a judicial candidate on condition that
they not appear before that judge if he or she is elected to office.
As in the case of campaign
contributions, generally, the fact that an attorney has endorsed the judge’s
candidacy or has agreed to be listed on a judicial candidate’s campaign
committee without more, constitutes only an “insignificant interest” that does
not raise a “reasonable question as to a judge's impartiality.” City of Las
Vegas Downtown Redevelop. Agency v. District Court, supra.
The Supreme Court indicated that
campaign contributions that are “extraordinary in amount” may raise a reasonable
question as to a judge's impartiality such that a judge may be required to
recuse himself or herself. Whether a contribution is extraordinary in
amount such as to raise a reasonable question of impartiality is one that is
left, in the first instance, to the judge’s determination. In determining
whether recusal is necessary, the judge should again be guided by his or her
duty to preside unless there is some statute, rule of court, ethical standard,
or other compelling reason for recusal, including, of course, whether the
contribution has, in fact, affected the judge’s ability to preside impartially.
The same standard also appears to
apply to recusal based on the fact that an attorney has served as the judge’s
campaign chairperson, treasurer or in another high office or position in the
campaign. The holding of such an office or position may reasonably imply a
close relationship between the judicial candidate and the attorney, perhaps even
one involving a relationship of trust and confidence. It is, therefore, more
likely that such a relationship will give rise to a reasonable question
as to a judge's ability to preside impartiality in matters involving an attorney
who has served the judge’s campaign in such a capacity.
In regard to a judge’s duty to
disclose to parties or their counsel that one of the attorneys has supported the
judge’s election campaign, the judge should determine whether the attorney’s
support was substantial enough to raise a reasonable question of impartiality
such that the parties should be informed about it and, at least, be afforded the
opportunity to request recusal. Again, the mere fact that an attorney has made
a contribution to the judge’s candidacy does not, in and of itself, require the
judge to disclose the contribution to the parties when the attorney appears in a
proceeding before the judge. Likewise, the fact that an attorney endorsed the
judge’s candidacy or was listed on his or her campaign committee does not
require such disclosure when the attorney appears before the judge.
If the attorney’s involvement has
been more substantial or extraordinary, in terms of the amount of his or her
contribution or because the attorney has served in a high campaign office or
position, then disclosure of that contribution or involvement should be made.
If a party then requests recusal, the judge should apply the foregoing standard
in determining whether recusal is required.
