The ethical hornets' nest stirred up by the refusal of an acting West Virginia chief justice to recuse himself from a multimillion-dollar appeal involving his major campaign contributor has reached the U.S. Supreme Court in a petition framing today's increasingly unsettling intersection of money and judicial elections.
The high court petition, fall-out from a bitter battle between competing coal companies, asks the justices to resolve "a recurring issue of far-reaching national importance." When, in the context of campaign contributions, does due process demand a judge's recusal? Caperton v. A.T. Massey Coal Co., No. 08-22.
"Although judicial elections -- and contributions to elected judges -- are a well-established means of selecting a state judiciary, there will be rare cases where campaign expenditures by a litigant create a constitutionally unacceptable appearance of impropriety. This is such a case," contends former Solicitor General Theodore B. Olson, co-chairman of the appellate and constitutional law group in the Washington office of Los Angeles' Gibson, Dunn & Crutcher.
As the amount of money poured into judicial elections skyrockets -- as documented by news and scholarly reports -- the number of instances in which a litigant or an attorney has contributed significant funds to a judge also will increase, and so too will recusal requests, said Olson, who represents Hugh Caperton, president of Harman Mining Co.
"A line needs to be drawn somewhere to prevent a judge from hearing cases involving a person who has made massive campaign contributions to benefit the judge," he said.
Is there a need for a "line," clarification by the Supreme Court, or state reform?
"Absolutely," answered professor Amanda Frost of American University Washington College of Law, who has done scholarly work on the recusal issue and has testified in Congress on it as well. "People are very aware of who contributes to their campaigns," she said. "What do we think the role of the judge is? Impartial decision-maker is the most important aspect of due process. All of the other due process type rights mean nothing if we don't have an impartial decision-maker."
Of the various issues surrounding judicial recusal, campaign contributions is the hottest, said Richard E. Flamm, author of a nationwide treatise on judicial disqualification and chairman of the Bar Association of San Francisco Ethics Committee.
"In this area, there is a lot of difference of opinion among judges and smoke about whether there are limitations or should be," Flamm said. "Situations like the one in West Virginia do not put those differences to rest."
COAL CLASH
The "situation" in West Virginia developed around an appeal by Don Blankenship, chairman and CEO of Massey Energy Co., of a $50 million jury award in 2002 for tortious interference with existing contractual relations, fraudulent misrepresentation and fraudulent concealment, in a suit against his company by Caperton of Harman Mining. With post-trial interest, the award grew to $76 million.
Between the verdict and Blankenship's filing of the appeal with the West Virginia Supreme Court of Appeals in 2006, there was a hotly contested battle for a seat on that court between incumbent Justice Warren McGraw and then-attorney Brent Benjamin. Blankenship reportedly made campaign expenditures of $3 million in that battle, the bulk of which went to a so-called Section 527 organization, And for the Sake of the Kids, working to defeat McGraw, about $517,000 of which was in direct support of Benjamin.
The $3 million total, according to Olson's petition, was $1 million more than the total amount spent by all of Benjamin's other campaign supporters and three times the amount spent by Benjamin's own campaign committee.
The spending in that campaign drew national and state attention, with local media in particular aware of the coal company's impending appeal. Benjamin was elected and seated in 2004.
Benjamin twice rejected motions by Caperton that he recuse himself because Blankenship's "extraordinary" financial support for Benjamin's campaign created a "constitutionally unacceptable appearance of impropriety." The first denial came before the court voted, 3-2, with Benjamin joining the majority, to reverse the $76 million award won by Caperton. The second came on Caperton's request for rehearing. Benjamin, subsequently in the role of acting chief justice because of two other justices' recusals related to Blankenship, appointed two state circuit judges for the rehearing and the court again voted, 3-2, to reverse the verdict.
NO BIAS
In a lengthy concurrence posted on the court's Web site on July 28, Benjamin tackles the recusal issue as well as the 2004 election. He contends that a key high court precedent -- argued and won by Olson in 1986 -- held that due process requires recusal only when a judge has a "direct, personal, substantial, pecuniary interest" in the case before him. Aetna Life Insurance v. Lavoie, 475 U.S. 813. "Simply put," he wrote, he does not have, nor was there any evidence to show he had, such an interest.
Caperton's reliance on the Section 527 contributions as the basis for recusal, Benjamin wrote, would require every judicial officer to be disqualified "from any and every case in which an independent nonparty organization over which the judicial officer had no control received contributions from individuals or groups which included a person or entity affiliated with a party or an attorney in the case, when the independent nonparty organization used its contributions to wage a campaign against the judicial officer's electoral opponent.
"Conversely, such a standard would likely require a judge also to recuse himself or herself when an independent expenditure group operated against the judge or supported the judge's opponent," he added. "Our judicial system would break down under such a standard for disqualification."
But in the high court petition, Olson contends that Benjamin's refusal to recuse is in conflict with Aetna and other high court precedents on the issue. Those precedents hold that even if there is no showing of actual bias, due process is denied by circumstances that create the likelihood or appearance of bias.
He also argues as a reason for hearing the petition that the lower courts have reached conflicting conclusions about the standard for recusal. He notes that at least five state Supreme Courts, agreeing with Benjamin, have held that the due process clause requires only the absence of actual bias and does not require recusal based on an appearance of impropriety, but others recognize the appearance of impropriety. And the federal circuits could use guidance as well, he states.
If the high court takes this case, a decision will not end the debate over campaign contributions in judicial elections, said Bruce E. Stanley, a partner in the Pittsburgh office of Reed Smith who has represented Caperton since 2000. And he and Olson are not asking the Court to make any ruling that would have First Amendment-type implications on the ability of people to support candidates, he added. "This case centers on a very simple fact: A man who was the beneficiary of $3 million in expenditures by a single litigant -- 60 percent of the money raised -- should not be sitting on cases by that litigant," said Stanley.
Massey Coal's counsel, Lewis F. Powell III of Richmond, Va.'s Hunton & Williams, did not return calls for comment.
Forty-seven states and the federal judiciary have adopted a general standard of recusal that closely mirrors the standard in the American Bar Association's model code, according to James Sample, an attorney with the Brennan Center for Justice, which, with the Campaign Legal Center and The Reform Institute, plans to file an amicus brief supporting review.
The standard essentially says that a judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might be reasonably questioned. But, Sample said, there is "extraordinary variability" in the degree to which judges are honoring the principles in that standard.
If the Supreme Court were only to say that due process requires recusal in this case, "it would spur judges to seriously reflect on the meaning and letter of the ABA standard," said Sample. "On a more systemic basis, it would invite and spur states to consider measures that might offer additional protection. Right now there is an extraordinary lack of predictability that goes with question of whether justice is for sale."
The high court turned away a similar due process-based petition in 2007 involving Illinois Supreme Court Justice Lloyd Karmeier, whose 2004 campaign received millions of dollars from business contributors. A year after his election, he voted to overturn the two largest class action judgments in the state's history.
Why would the Caperton petition fare better? "In the Illinois scenario, one could argue the interests of the contributors were arguably more diffuse -- it was trial lawyers versus defense bar," said Sample. "Here it truly involves a sole individual, the CEO of a litigant facing a $50 million judgment, who personally spent $3 million."
Another difference between now and a year ago is much more media attention in many states to the various recusal issues, said recusal expert Flamm, adding, "A lot of reasonable observers would find it difficult to believe a judge could sit in judgment of person who had given that amount as a campaign contribution without blinking an eye."
