The Center for Competitive Politics (CCP) urged the Michigan Supreme Court in a public letter to protect political speech rights by not linking independent speech to recusal standards.
The Michigan Supreme Court is considering new recusal standards in the wake of Caperton v. A.T. Massey Coal Co., a recent Supreme Court decision that created a vague “probability of bias standard.”
“Free speech shouldn’t be limited in campaigns for the courthouse,” said CCP Research Director Laura Renz. “If this Court creates a recusal standard based on the faulty idea that independent speech supposedly corrupts judges, the First Amendment rights of Michigan citizens will be chilled.”
Michigan is considering three proposals for modifying judicial standards, and it’s essential that the independent expenditure provision of “Alternative B” be part of the final standard.
The provision reads: “Statements or conduct by anyone other than the justice shall not be considered in assessing the impartiality of a justice, nor shall campaign speech protected by Republican Party of Minnesota v. White (2002), be a proper basis for the disqualification of a judge.”
Caperton was based on what the Supreme Court deemed unique facts, and Michigan should not create a recusal standard based on independent speech. Under such a system, independent groups — for example, a pro-life membership group or a trial lawyer association — could run independent ads for or against a state justice with the intent of gaming the recusal rules, forcing a disfavored justice to recuse herself.
“The Supreme Court has repeatedly ruled that spending money independently to advocate for or against a candidate is a core right protected by the First Amendment,” said CCP Vice President Stephen M. Hoersting. “Any effort to prevent the voice of Michigan citizens and groups from being part of the debate during judicial campaigns is unlikely to pass constitutional muster.”
The Center for Competitive Politics (CCP) is a non-profit organization which seeks to protect the First Amendment political rights of speech, assembly, and petition. CCP filed a friend-of-the-court brief in Caperton v. A.T. Massey Coal Co. supporting Massey.
