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U.S. Supreme Court Defines “Probability of Bias” Standard

By Jeffrey B. Tracy, Litigation News Associate Editor – August 6, 2009

The U.S. Supreme Court has articulated a new “probability of bias” standard requiring recusal by judges who accept campaign contributions from litigants who appear before them.

The plaintiffs in Caperton v. A.T. Massey Coal Corp. [PDF] secured a $50-million fraud verdict against Massey, which was reversed on appeal by the West Virginia Supreme Court of Appeals. After the trial court verdict, but prior to the appeal, Massey’s chairman and chief executive officer donated $3 million to a political action committee to help elect Brent Benjamin to the state appeals court. When Massey’s case went before the appellate court, Benjamin [PDF] refused a request to recuse himself, saying he had no personal financial stake in the outcome. He, thereafter, cast the deciding vote to overturn the verdict against Massey.

Upon rehearing, another justice who had publicly criticized the CEO’s campaign contributions recused himself. However, Justice Benjamin again declined to do so and again cast the deciding vote to overturn the verdict.

In a 5–4 decision, the U.S. Supreme Court reversed the Benjamin court. Writing for the majority, Justice Anthony M. Kennedy acknowledged that “there is a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”

The majority, however, was careful not to find actual bias, but instead redefined the standard as creating the “probability of bias,” noting that “[n]ot every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge’s recusal, but this is an exceptional case.”

In determining whether to recuse, “the inquiry centers on the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election,” opined Kennedy.

Chief Justice John G. Roberts, writing the dissent, focused on the practical impact of the “probability of bias” standard. “Unlike the established grounds for disqualification,” wrote Roberts, “a ‘probability of bias’ cannot be defined in any limited way.”

The majority’s “new ‘rule’ provides no guidance to judges and litigants about when recusal will be constitutionally required” and will only lead to an “increase in allegations that judges are biased, however groundless those charges might be,” Roberts wrote.

Penny J. White, Knoxville, TN, cochair of the ABA Section of Litigation’s Task Force on the Independence of the Judiciary, thinks that the Caperton decision will likely have a broad impact, not only on lawyers and judges but on the general public.

“Because of the publicity that the outrageous Caperton facts received, the public has a better understanding of the potential corrosive effects of campaign contributions on state judicial elections and a heightened awareness of the importance of actual and perceived impartiality,” says White.

“Continued confidence in our legal system rests first and foremost on the fundamental idea that every individual has the basic right to a fair trial in a fair tribunal,” says Judge Bernice Donald, Memphis, District Judge for the Western District of Tennessee and member of the Section’s Task Force on the Independence of the Judiciary.

“The Supreme Court’s ruling in Caperton is derived from this principal. Caperton exposes the very real danger that money and judicial elections pose to the rule of law, as well as to the public’s faith in the justice system,” Donald says.

Rudy A. Englund, Seattle, a Section Task Force on the Independence of the Judiciary cochair, agrees, noting that “on a practical level, the greatest impact that the Caperton decision will have is on the judicial system in terms of working toward a greater uniformity of fair and impartial jurisprudence.”

While he believes that the decision was generally favorable, Englund concedes that there are First Amendment implications that may come from Caperton. “The more you work toward campaign contributions serving as a bar to either try or not try a case in front of a judge, you are implicating First Amendment protections as to those who make political contributions,” says Englund.

“The expectation is that once governing bodies begin to impose specific contribution limits as a judicial disqualification criteria in the wake of Caperton, there will be future litigation challenging the legitimacy of those efforts,” Englund says.

Keywords: Caperton v. A. T. Massey Coal Corp., elections, campaign contributions, recusal, judges, First Amendment, probability of bias, due process clause

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