Attorney Speech and the Right to an Impartial Adjudicator

By Tarkington, Margaret | The Review of Litigation, January 1, 2011 | Go to article overview

Attorney Speech and the Right to an Impartial Adjudicator


Tarkington, Margaret, The Review of Litigation


I. INTRODUCTION ........................................................................ 850

II. THE SET-UP: INDIVIDUAL RIGHT AS METHOD TO PRESERVE IMPARTIAL JUDICIARY ............................................................. 852

A. The Unconstitutionality of Certain Judicial Election Reforms ............................................................................ 852

B. THE PROFFERED SOLUTION: CAPERTON'S DUE PROCESS RIGHT . 857

III. OVERVIEW OF PUNISHMENT OF ATTORNEY SPEECH REGARDING THE JUDICIARY ........................................................................ 864

A. "Officers of the Court " Lack Free Speech Rights .......... 864

B. Specific Aspects of Punishment ....................................... 868

1 . The Rationale: Preserving the Public Perception of Integrity .................................................................... 868

2. The Objective Standard ............................................ 869

3. Truth or Falsity ......................................................... 872

C. Post-Caperton Reform? ................................................... 873

IV. ATTORNEY SPEECH RIGHTS TO CHALLENGE JUDICIAL IMPARTIALITY ......................................................................... 876

A. A Speech Right Commensurate to Fulfill the Attorney 's Function .......................................................................... 876

B. Disassociating Disqualification from Impugning Judicial Integrity and Defamation ................................................ 882

1 . Disqualification and Impugning Judicial Integrity ..882

2. Disassociating Disqualification from the Defamation Context ..................................................................... 886

C. Employing a Normal Rule Il Standard .......................... 889

D. The Judge 's Belief of Her Own Impartiality Should Not Demonstrate Rule Violation ............................................ 891

V. CONCLUSION: PRESERVING IMPARTIALITY AND ITS PERCEPTION...................894

I. INTRODUCTION

In Caperton v. A.T. Massey Coal Co., the United States Supreme Court held that an "objective" "potential for bias" could rise to a denial of due process.1 Caperton thus buttressed the individual litigant's enforceable due process right to an impartial adjudicator. Some commentators have criticized Caperton' s approach, arguing that an individual right is an insufficient solution to systemic problems concomitant to modern judicial elections. Indeed, the Supreme Court has appeared to exacerbate problematic judicial elections by invalidating laws that arguably improved the perceived (and perhaps actual) impartiality of elected state judges. Notably, in Republican Party v. White, the Supreme Court held that Minnesota could not constitutionally prohibit judicial candidates from announcing their views on disputed legal or political issues,2 and in Citizens United v. Federal Election Commission, the Supreme Court opened campaign doors to independent expenditures from the general funds of corporations and unions.3 Indeed, there seems to be an inherent tension between Caperton, which recognized that a probability of bias of constitutional proportions could be created merely through campaign contributions and expenditures, and Citizens United, which invalidated restrictions on corporate campaign expenditures thus arguably paving the way for increased instances of Caperton-style unconstitutional bias.

If the individual due process right recognized by the Caperton Court is to be the primary means for ensuring a constitutional "fair trial in a fair tribunal" (despite aggressive judicial elections and the Supreme Court's own limitations on structural reforms), then attorneys need to be free to fully pursue the protection of that due process right on behalf of their clients. Unfortunately, many judges do not appreciate having their impartiality questioned, and, in a number of instances, judges have harshly punished attorneys for speech questioning judicial impartiality even when done as part of a motion to recuse or disqualify a judge (including arguments that a litigant has been denied due process). …

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