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DECISION 2000 / AMERICA WAITS

Politics Not Considered a Reason for Recusal

Recount: Rules on when an official should step aside are often unclear. But an appearance of impropriety is a paramount concern.

November 17, 2000|ROBERT L. JACKSON | TIMES STAFF WRITER

WASHINGTON — Gov. Jeb Bush of Florida recused himself on grounds that his brother's future is at stake. But Secretary of State Katherine Harris did not, although she co-chaired George W. Bush's campaign in Florida.

Five state judges in Palm Beach County have stepped aside, citing political and other reasons. But a majority of Democratic justices on the Florida Supreme Court have not, nor have six Republican appointees on the U.S. 11th Circuit Court of Appeals in Atlanta, although both panels will hear crucial aspects of the voting dispute over who will become the next president.

And U.S. District Judge Donald M. Middlebrooks ruled in favor of a Democratic petition to allow hand counting of Florida ballots, even though he has contributed more than $19,000 to Democrats since 1980, including $1,000 to the Clinton-Gore reelection campaign four years ago.

In some instances, the rules governing when judges and public officials should recuse themselves from hearing disputes are clear. But in other cases they are murky, leaving the decision to the individuals themselves.

In most cases, activity in a political party or donations to a party are not enough to lead to disqualification of a judge or public official, according to experts in legal ethics. But the appearance of impropriety nonetheless should be uppermost in the minds of officials, they said.

Harris' case has drawn special attention since she is the top official presiding over her state's disputed presidential election. Her recusal would be mandatory, authorities said, only if it were shown that she has a financial or family interest in the outcome, much like the head of a regulatory commission who stands to gain personally from the outcome of a pending dispute.

Harris and similar state and federal officials mainly are subject to conflict-of-interest statutes that prohibit their benefiting from matters over which they have authority, said ethics experts such as Michael E. Shaheen Jr., who was the Justice Department's career "ethics cop" for 22 years before retiring in 1997.

Harris has flatly rejected suggestions that she should step aside because of her closeness to the Bush campaign, declaring that she can perform her duties fairly and impartially. But others have raised questions about her decision to stay on.

"She has a very tough job to do, but I wonder if it may not be time to recuse herself," Senate Minority Leader Tom Daschle (D-S.D.) said earlier this week. "I certainly wouldn't allege any wrongdoing, but I think there is a very serious problem of perception."

Shaheen said: "It's a no-brainer that she should recuse herself, essentially because of the appearance of conflict. If you have to ask yourself, 'Do I have a conflict?' you pretty much have answered that question."

Shaheen, who served under two Democratic and two Republican administrations, was renowned for his toughness. He once advised President Reagan's attorney general, the late William French Smith, that he should relinquish hundreds of thousands of dollars in benefits from a tax shelter because of a potential conflict. Smith accepted his advice.

Retired U.S. District Judge Stanley Sporkin, a Reagan appointee known as a stickler for judicial ethics during his 15 years on the bench, said of Harris' situation: "What are you going to do? You're political because you have to be elected some way or other."

But in Harris' case, "maybe she should recuse herself" because of her direct involvement in the Bush campaign, Sporkin said.

"It's really up to her, but you should go to great lengths to avoid the appearance of impropriety," he said.

Judges are largely governed by the model code of judicial conduct drafted by the American Bar Assn. and adopted in some form by all states, though there are no hard and fast rules of conduct for political officials except for conflict-of-interest laws. According to that code, judges "shall not be swayed by partisan interests, public clamor or fear of criticism" and must perform their duties "without bias or prejudice."

The model code spells out the most common instances in which judges should voluntarily step aside. Political affiliation is not among them.

The code says recusal is appropriate if "the judge has a personal bias or prejudice" toward one side in a dispute or has "personal knowledge of disputed evidentiary facts" involved in the case. In addition, a judge cannot hear a case if the judge's former law firm has previously represented one side or the other, the code states.

Stephen Gillers, a professor at New York University School of Law, says it is clear that "affiliation with a political party doesn't automatically disqualify a judge or a state official like Ms. Harris."

Specific situations calling for disqualification include "if a judge or the judge's spouse has a financial interest, if his law firm in private practice represented one party or the other, or if the judge is related to one party or a witness," Gillers said.

However, many judges and public officials have disqualified themselves over the years simply to avoid the appearance of impropriety, he said. Shaheen said that appearances, in fact, are harder to remedy than actual impropriety.

"If a public official owns stock that creates a conflict, you can sell the stock," he said. "But appearances are more awkward. How can you cure them except by recusing yourself?"

A trial judge who refuses to step aside can sometimes be forced to do so by a lawyer petitioning an appellate court. Gillers recalled that U.S. District Judge Wayne Alley refused to recuse himself from the Oklahoma City bombing case five years ago even though his chambers were damaged by the blast.

But appellate judges took the case away from Alley on petition by attorneys for defendant Timothy J. McVeigh, who argued that his proximity to the bombing could create a bias.

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