Tennessee amends code of judicial conduct to require recusal of judges who receive campaign contributions from attorneys appearing before them.

The Tennessee Supreme Court has taken steps to eliminate the influence of large campaign contributions in judicial races.

The new rule in Tennessee was inspired by the United States Supreme Court’s decision in Caperton v. A.T. Massey Coal Co., 129 S.Ct. 2252, 173 L.Ed.2d 1208, which  recognized the serious threats to public perceptions of judicial impartiality that arise when judges preside over cases involving campaign supporters.

The new rule may have gained even more importance with the ruling in Citizens United where the U.S. Supreme Court ruled that corporations had the same right as citizens to make campaign contributions.   The spectre of Super Pacs becoming involved in judicial elections by corporate interests including insurance companies is troublesome.

(Citizens United v. Federal Election Commission, 558 U.S. 08-205 (2010), 558 U.S. ––––, 130 S.Ct. 876 (January 21, 2010), was a landmark decision by the United States Supreme Court holding that the First Amendment prohibits government from placing limits on independent spending for political purposes by corporations and unions. The 5–4 decision originated in a dispute over whether the non-profit corporation Citizens United could air a film critical of Hillary Clinton, and whether the group could advertise the film in broadcast ads featuring Clinton’s image, in apparent violation of the 2002 Bipartisan Campaign Reform Act, commonly known as the McCain–Feingold Act in reference to its primary Senate sponsors.)

The new rule was supported by the Brennan Center for Justice At Stake Campaign, by the Tennessee Bar Association and by Temple University among others.


October 31, 2011

Mike Catalano, Clerk

Tennessee Appellate Courts

100 Supreme Court Building

4017th Avenue North

Nashville, TN 37219-1407


No. M2011-00420-SC-RL1-RL

Dear Mr. Catalano:

We write on behalf of the Brennan Center for Justice at N.Y.U. School of Law1 and the  Justice at Stake Campaign2 to comment on the new Tennessee Code of Judicial Conduct and

accompanying court rules proposed by the Tennessee Bar Association on February 25, 2011. We commend the Bar for its rigorous and meticulous study of the 2007 ABA Model Code

Footnote: *****************

1 The Brennan Center is a non-partisan public policy and law institute that focuses on

fundamental issues of democracy and justice. The Brennan Center’s Fair Courts Project works to preserve fair and impartial courts and their role as the ultimate guarantor of equal justice in the

country’s constitutional democracy. Its research, public education, and advocacy in this area focuses on improving selection systems (including elections), increasing diversity on the bench, promoting

measures of accountability that are appropriate for judges, and keeping courts in balance with other governmental branches.

2 Justice at Stake is a nationwide, nonpartisan partnership of more than 50 judicial, legal, and citizen organizations. Its mission is to educate the public and work for reforms to keep politics and

special interests out of the courtroom — so judges can do their job protecting the Constitution, individual rights, and the rule of law. The arguments expressed in this letter do not necessarily

represent the opinion of every Justice at Stake partner or board member.


of Judicial Conduct, and we believe the proposed new Tennessee Code of Judicial Conduct provides a strong foundation for the Tennessee Supreme Court as it considers changes to the existing Code of Judicial Conduct.

We therefore strongly urge the adoption of the proposed rules, and write to underline the importance of several elements of the proposed rules. First, we believe proposed Rule 2.11(A)(4) provides a promising solution to the problems

imposed by campaign contributions and independent expenditures in judicial elections. The rising costs of judicial elections across the country have created a need for rules that clarify when recusal is appropriate based on campaign spending. In the last decade, spending on state supreme court elections more than doubled, from $83.3 million in 1990-1999 to $206.9 million in 2000-2009. Of the 22 states that hold competitive elections for judges, 20 set alltime

spending records during the last decade. And in 2010, we saw this trend spill over from contested judicial elections into retention elections.

The United States Supreme Court’s decision in Caperton v. A.T. Massey Coal Co.3 recognized the serious threats to public perceptions of judicial impartiality that arise when judges preside

over cases involving campaign supporters. There, the Court ruled that due process required a justice to recuse himself when one of the parties had spent $3 million on independent expenditures to elect that justice. That $3 million exceeded the total amount spent by all of the justice’s other supporters, and by his campaign committee. The Court concluded that the spending created a “serious objective risk of actual bias.”4 With million-dollar judicial campaigns becoming the norm across the country, disqualification in cases where campaign spending raises reasonable questions about a judge’s impartiality has become imperative to preserving public confidence in the courts.

We endorse the Tennessee Bar’s proposed response to the problems posed by judicial campaign spending, and believe it represents a more effective approach than several existing rules.5 In particular, we believe it represents a preferable approach to that taken in the American Bar Association’s Model Code of Judicial Conduct. The Model Code contains a per se recusal rule, which requires disqualification when campaign contributions to a judge exceed a specified threshold amount. We believe this approach has several shortcomings not present in the rule proposed by the Tennessee Bar. First, the ABA rule fails to address the full array of campaign spending that occurs today. It applies only to contributions made directly to judicial candidates, not independent campaign expenditures, which account for a large portion of spending on judicial elections: in the most recent cycle, independent campaign spending in state high court elections—by definition uncontrolled by and

Footnote: *************

3 129 S. Ct. 2252 (2009).

5 See Adam Skaggs and Andrew Silver, Promoting Fair and Impartial Courts through Recusal

Reform 13-14 (Brennan Center 2011), available at http://www.brennancenter.org/recusal_reform

(describing Bar’s proposal as “very promising” and urging “[s]tates in which judges sit for elections

[to] adopt recusal rules patterned on” the Bar’s proposal).


unaccountable to candidates—represented nearly one of every three dollars spent.6 Second, pinpointing a per se campaign contribution limit in each state can be a daunting and insurmountable task, and any chosen number may prove to be far too high or too low.

Finally, the ABA’s automatic rule opens the door to gamesmanship by litigants who may attempt to engage in judge-shopping by making a disqualifying contribution to a disfavored judge.

The Tennessee Bar’s Proposed Rule 2.11(A)(4) avoids these pitfalls, and provides a promising solution to concerns campaign spending may raise about the impartiality of

Tennessee’s courts. By including contributions and other support, the rule adequately addresses both direct contributions to a judicial candidate and independent expenditures like

those that caused disqualification in Caperton. Additionally, by replacing a per se threshold with language requiring recusal where support gives rise to reasonable questions about a

judge’s ability to remain impartial, the rule avoids concerns of gamesmanship and judge shopping  that arise with the ABA Model Code. Finally, the comments to the proposed Rule

2.11(A)(4) guide both judges and litigants in its application, to avoid a flood of unnecessary requests and disqualifications. The factors listed in Comment 7, which mirror those the

Court described in Caperton, provide a workable set of guidelines for judges and litigants when confronting recusal questions related to campaign contributions.

We are also encouraged by Comment 5 to the proposed recusal rule, which asks judges to disclose on the record information they believe the parties might consider relevant to a

possible motion for disqualification. While we prefer statutory rules requiring judges and litigants to disclose all campaign contributions and expenditures, we are nevertheless

confident that judges in Tennessee will apply this directive fairly and faithfully.

Second, we strongly support proposed Rule 2.11(D) and the associated changes to the Tennessee Rules of Civil, Criminal and Appellate Procedure, which provide for written orders on recusal motions that state the reasons for the ruling, and which provide a process for litigants to obtain de novo review of recusal requests denied at the trial, appellate, and supreme courts.

One of the most criticized features of the recusal rules in many states is that the judge subject to a recusal motion has the unreviewable last word on whether to step aside. For many, it flies in the face of fundamental notions of disinterested, impartial decision-making to allow judges accused of bias to be the only ones who decide whether or not they are, in fact, subject to disqualification. De novo review of a recusal motion denied in writing promotes public confidence in the judiciary by ensuring that the final disqualification decision is made by a judge or group of judges who is impartial both in fact and in appearance.

Footnote: *************

6 See Adam Skaggs, Maria da Silva, Linda Casey and Charles Hall, The New Politics of Judicial

Elections 2009-2010 11 (Justice at Stake 2011), available at http://www.newpoliticsreport.org (noting

that outside groups accounted for 29.8 percent of all spending in the 2009-2010 supreme court

election cycle).

* * *

By providing independent, de novo review of denied recusal motions, Tennessee’s courts  would take an important step forward in promoting public confidence in their recusal

practices. And by adopting the proposed recusal rule on to campaign spending, Tennessee will take a significant step toward ensuring that the public believes decisions are reached

based on the facts and the law, not on which side provided the most support to the judge’s campaign. Together, these proposed rules, if adopted, will make important advancements

that help ensure the perception and reality of impartial justice in the state of Tennessee. We thank the Court for the opportunity to submit the comment, and for the reasons we

have outlined, we urge the Court to adopt each of the rules addressed above.

Respectfully submitted,

J. Adam Skaggs Bert Brandenburg

Senior Counsel Executive Director

Brennan Center for Justice Justice at Stake Campaign

161 Avenue of the Americas 717 D Street NW, Suite 203

New York, NY 10013 Washington, DC 20004

(646) 292–8331 (202) 588–9700


See: http://www.tba.org/judicialconductrules/TBAPetition_with_exhibits_022511.pdf


Following are major changes the TBA suggests to the Court:

1. Prohibit judges who participate in judicial settlement conferences from presiding over the trial or other contested issues in that matter. The recommendation is for both a prohibition in Rule 2.6 and the Code of Judicial Conduct and an amendment Tennessee Supreme Court Rule 31, Section 20, because of the difficulties wrought by that process.

2. Adopt a limited exception to ex parte communications prohibitions for those

involved in drug and mental health courts. However, disqualification may be required. See Rule

2.9, Comment [4].

3. Provide greater guidance on judicial disqualification and recusal. Included are factors such as the levels of campaign support for the judge or the judge’s opponent, the timing of the support and independent expenditures. See Rule 2.11, Comment [7].

4. Require compliance with new procedures for motions to determine incompetence, disqualification and recusal.

5. Change the gift threshold for required reporting from $150 to $250. See Rule


6. Consistent with recent constitutional decisions, significantly lessen the restrictions on campaign activities while making it clear that campaign committees and judges must fully comply with campaign finance disclosure statutes, and that such activities may lead to disqualification. See Rules 4.1, 2.11(d).

7. Include within the provisions related to judges’ families a person with whom

another person maintains a household and an intimate relationship other than a person to whom he or she is legally married. See Rule 2.11(d).

8. Clarify application of certain Code provisions to senior judges, part-time judges,

continuing part-time judges and pro tempore judges.

9. Clarify when judges may provide a reference or recommendation. Permit use of official letterhead when the reference is personal or is based on personal knowledge and is germane to the judge’s professional knowledge, such as writing a letter of recommendation for a law clerk. See Rule 1.3, Comment [2].

10. Clarify a judge’s responsibility to report violations of the Rules of Professional Conduct and the Code of Judicial Conduct by lawyers and judges, including reference to judicial assistance programs. See Rule 2.15.

11. Permit judges, spouses and guests to attend, free of charge, events associated with educational, civic, religious, fraternal and charitable organizations. See Rule 3.14, Comment [1].

12. Limit participation in activities of organizations which engage in political

advocacy in limited subject areas or consistently for one side in lawsuits. See Rule 3.7,

Comment [1].

13. Emphasize that judges must perform their duties promptly, as well as

competently, diligently and cooperatively. See Rule 2.5.



As detailed in the attached Exhibit E, The New Politics of Judicial Elections 2000 -2009, attempts to influence the outcome of judicial elections and, indeed, judicial decisions through campaign contributions have grown exponentially over the last decade. This issue came to a head in the case of Caperton v. Massey, 129 S.Ct. 2252, 173 L.Ed.2d 1208, in which the U. S. Supreme Court held that there is a Due Process dimension to disqualification considerations when there are massive campaign contributions. The TBA recommendation is first that the Code of Judicial Conduct be amended in Rule 2.11 and related comments to explicitly address campaign contributions in the context of disqualification.

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