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Supreme Court Weighs Judicial Recusal for Campaign Contributions

By Henry R. Chalmers, Litigation News Associate Editor – January 23, 2009

Does the due process clause require a judge to recuse himself when his receipt of campaign contributions from a party creates the appearance of bias? Or does the U.S. Constitution reach only instances of actual bias, leaving regulation of anything less to the legislative process? The U.S. Supreme Court is expected to answer these questions this term in Caperton v. A. T. Massey Coal Corp. , [PDF] scheduled for oral argument in March, 2009.

The case will review the issue of campaign contributions and the impact of costly judicial elections on the appearance of justice at the state level. The ABA and several civil and business groups filed amicus briefs in support of review. The Court’s decision to accept the case “marks an important step toward bolstering public confidence in our legal system,” says H. Thomas Wells Jr., Birmingham, AL, ABA president and former Section of Litigation chair, in a press release. “There are crucial issues that beg for resolution, and it is critical that our highest court offer guidance to the judiciary while reassuring the public of our legal system’s trustworthy stewardship and integrity.”

The plaintiffs in Caperton 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 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.

Photographs later surfaced of the court’s chief justice vacationing with the Massey CEO on the French Riviera while the appeal had been pending. This prompted the court to grant a rehearing and the vacationing chief justice to recuse himself. Ironically, Massey also sought, and received, recusal of another justice who had publicly criticized the CEO’s campaign contributions. Justice Benjamin, however, again declined to recuse himself and again cast the deciding vote to overturn the verdict.

Benjamin declared that recusal is appropriate only when “the facts asserted provide what an objective knowledgeable person would find to be reasonable basis for doubting the judge’s impartiality.”

However, petitioners for certiorari before the U.S. Supreme Court argued that the appearance of bias in the case was enough to violate the due process clause’s guarantee of a “neutral and detached judge.”

Bill Hangley, Philadelphia, PA, a Section Task Force on the Independence of the Judiciary cochair, agrees. “This is the kind of case that strikes at the very heart of the public’s confidence in the judicial system,” he says.

Massey has argued that although the Supreme Court has found actualbias to violate the due process clause, it has never found a due process violation based on the mere appearance of a conflict—what Massey calls a “looks bad” due process standard. Defining the contours of such a constitutional right would be unworkable, says Massey.

Penny White, Knoxville, TN, a Section Task Force on the Independence of the Judiciary cochair, disagrees. “It was crucial for the Court to grant cert. and establish once and for all that there is a line beyond which recusal must be granted in cases involving litigants who have made large political contributions to the presiding judge,” she says.

However, Laura Lee Prather, Austin, TX, a Section First Amendment Committee cochair, is sympathetic to Massey’s argument that a finding of due process violation could chill the exercise of First Amendment rights. “We need to be able to support who we want with our votes and our dollars without fearing that we’ll be deprived of the opportunity to have a judge we support hear cases in the normal course of operations,” says Prather.

“You can give to the political candidate of your choice,” Hangley counters, “but you shouldn’t expect the system to close its eyes to the fact that you did so when the contributions would create an appearance of partiality.”

“This case offers an opportunity for the Supreme Court to help define the factors that should guide judges in deciding when, in the interest of justice, they should rule, and when they should step aside,” Wells says.

  • February 27, 2009 – If the Supreme Court doesn't jump on this and do something about this palpable . . . . I'm hanging it up!


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