Fordham Law

Questioning Questionable Recusal Calls

Joel Cohen in LAW.COM, July 18, 2011

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by Joel Cohen

The U.S. Supreme Court rarely votes with unanimity. So, when it decides a case unanimously, the very fact of that unanimity causes even a typically captious observer to reflexively conclude that the result was correct.

On June 13, 2011, the Supreme Court did just that -- in Nevada Com'n on Ethics v Carrigan. Ah yes, there were two separate opinions (from Justices Anthony Kennedy and Samuel Alito) that concurred in the result reached in Justice Antonin Scalia's opinion for the Court. Still, no one disagreed with one fundamental precept: A legislator has no First Amendment "free speech" right when he votes on a particular matter; his vote belongs to his constituency, which he exercises solely in his capacity as their representative. There is nothing new about that. The requirement that American legislators recuse themselves -- Justice Scalia reminds us -- actually began when Thomas Jefferson adopted such a provision for U.S. senators when he served as president of the Senate.

So, how does this issue arise in Carrigan? Simple. Mr. Carrigan voted as a Sparks, Nev., councilman to approve an application for the "Lazy 8" hotel/casino project. He voted even though his longtime friend and campaign manager, Carlos Vasquez, was a paid consultant for the company that proposed Lazy 8, which obviously stood to benefit from it. And, indeed, that vote -- even though he disclosed the conflict before voting -- ran afoul of Nevada's conflict rule that prohibits a legislator from voting when his vote would reasonably be affected by "his commitment in a private capacity to the interests of others."

When one really thinks about it, how could Nevada's prohibition possibly not apply to Carrigan? After all, his vote would potentially help his longtime friend (not to mention his campaign manager). In a way, it would almost be as if he voted to approve his wife's, or daughter's or even his own application for the Lazy 8.

And given the Supreme Court's almost dismissive rejection of Carrigan's "free speech" claim, it would be hard to imagine any legitimate argument that the Nevada conflict provision shouldn't apply to Councilman Carrigan. In fact, common sense would suggest that Carrigan had a conflict of interest (the desire to help a friend), even without the ethics provision in question.

But assume a different scenario, where Carrigan votes to approve the Lazy 8, without his buddy Vasquez in the picture. In this scenario, though, Carrigan has a strong personal interest in developing hotel/casino projects in his district, and strong and personal ties to persons who share his views. In fact, those persons actually urged and supported him to run for office in the first place. Or suppose the vote was on a "family values" issue -- and the friends, associates and individuals who financially supported Carrigan's campaign for office shared that interest with him. For example, they support (or oppose) same-sex marriage. In so voting, would Carrigan be voting on a issue where his decision would reasonably be affected by "his commitment in a private capacity to the interests of others"?

This latter scenario is precisely what troubled Justice Kennedy in concurring: the potential to deny a legislative vote when the legislator's "personal life is tied to the longstanding, close friendships he or she has forged in the common cause now at stake." Given Vasquez's role in the Lazy 8, Carrigan was easy for the Court to decide; but not so easy in the more ambiguous scenarios that Justice Kennedy posited -- where a legislator votes on an issue in which "friends" or "associates" or even "financial supporters" have a shared interest with him. When that issue is presented, it would seem unfair to deprive Carrigan of the vote. Yet the majority opinion, although not presented with that issue, leaves open that possibility.

Another problem: Assume Vasquez remains in the picture and will potentially benefit from the Lazy 8. But perhaps more important to Carrigan, his constituents want the project -- e.g., more businesses, more jobs, more police. As Justice Scalia quite properly tells us, Carrigan's vote belongs to those constituents. Of course, we can't reasonably ask the Court to decide which -- Vasquez's financial interests or those of Carrigan's constituency -- motivated his vote. But make no mistake: If Carrigan must recuse based on his conflict caused by Vasquez's interest, Carrigan's constituency will frankly lose its vote. In fact, under Nevada's conflict provision, Carrigan would not only be barred from voting, but even from advocating in support of the Lazy 8. Yes, the constituents would lose their voice too! Seemingly unfair, no?

How does this issue apply to judicial disqualification? As Justice Scalia correctly notes, the rules of engagement for judicial recusals are different, although Justice Kennedy raises the argument that the majority's opinion almost superimposes principles of judicial impartiality on political officeholders. And of course, if a judge must disqualify herself, the litigants before her won't be denied a decision altogether. Simply, another judge will be assigned to decide the case.

Still, lawyers try to test the nuances of disqualification to undermine adverse decisions by judges. We actually saw that happen in another related decision the very day after Carrigan was decided. Months before, Northern District of California Chief Judge Vaughn Walker had decided Perry v. Schwarzenegger, the "Prop 8" case that held California's ban against same-sex marriage unconstitutional. After Walker retired from the bench, he disclosed to a newspaper that he was in a longstanding same-sex relationship -- including during the period while the case pended before him.

Although they did not contend that Judge Walker's gay status was itself a disqualifier, attorneys for Proposition 8 backers did seek to vacate the judgment by arguing that Walker was conflicted ab initio because he may have potentially benefited from his decision to enjoin Prop 8 if he decided to marry his partner.

However, California federal Judge James Ware, who was assigned to decide the conflict issue after Walker retired, rejected that argument: "In a case that could affect the general public based on the circumstances or characteristics of various members of that public, the fact that a federal judge happens to share the same circumstances or characteristics and will only be affected in a similar manner because the judge is a member of the public, is not a basis for disqualifying the judge ... ."

Given this standard, Judge Ware essentially held that to have required Judge Walker's recusal would mean, by way of example, that a black justice sitting on the Supreme Court could never vote on any issue that could impact his children or grandchildren because of race. More directly, a black justice sitting on the Supreme Court when Brown v. Board of Education was argued would have had to disqualify himself.

In his interview with the media, Judge Walker said he had no plan to marry his partner, so therefore he had no direct interest in the outcome of the lawsuit. Ware found that persuasive. But what if most of Walker's social friends were gay and planned to marry if the law were enjoined -- and thus did have a direct interest in the outcome of the litigation? Would or should that have mattered? Should it have affected Ware's recusal decision if the record was clear, for example, that most of Walker's friends are gay, that they ideally wanted to marry and that Walker knew of those plans? It's a curious question indeed -- and arguably it would, theoretically at least, raise a problem similar to that which concerned Justice Kennedy in Carrigan -- there, in the instance of a legislator's vote.

Even though legislator and judge recusal obligations stand on different footing, one overarching reality applies to both: Legislators and judges take their respective oaths while toting in their left hand, as it were, the "baggage" -- meaning, the real-life experience -- amassed from having lived lives in the real world. As well they should -- and it couldn't possibly be otherwise; they arrive at the table with strongly held views and opinions. If ethics regulators and litigants are able to challenge official actions through the cloudy, faultfinding lens of the second guess that challenges said experience and opinions (as they tried to do in the instance of Judge Walker), in the long run we may find too many people who hold public office to be dispassionate automatons, not thoughtful public servants.

Joel Cohen is a partner in the New York office of Stroock & Stroock & Lavan, where he practices white-collar criminal defense law. He teaches Professional Responsibility at Fordham Law School. This column is the latest in a monthly series for The views expressed are the personal opinions of the author.