WASHINGTON — In this new age of multimillion-dollar battles for state supreme court seats, can the U.S. Supreme Court find a way to guide elected judges “to hold the balance nice, clear and true” when litigants challenge their impartiality?
More than 50 years ago, the nation’s high court acknowledged in a decision the difficulty of defining with precision what kind of an interest in a case a judge might have that would require him or her to step aside because due process demands it.
That court reached back another 30 years — to 1927 — to find as the answer a situation that “would offer a possible temptation to the average . . . judge to . . . lead him not to hold the balance nice, clear and true.”
This week, the justices will hear arguments involving judicial recusal precedents, some nearly a century old, in the modern context of campaign contributions in judicial elections — one of the hottest judicial ethics controversies today. Caperton v. A.T. Massey Coal Co., No. 08-22.
The court is being asked to find that the Constitution — not a state statute or judicial code — required West Virginia Supreme Court of Appeals Justice Brent D. Benjamin to recuse himself from an appeal in which the president of the company seeking reversal of a $50 million jury verdict was the largest contributor — $3 million in direct and indirect contributions — to Benjamin’s campaign.
“I think it is a hard case for the court, and you get evidence of that from the fact they had it on their calendar for five conferences before agreeing to hear it,” said Professor Amanda Frost of American University Washington College of Law, who has done scholarly work on judicial recusal and has testified in Congress about it.
“How do you say what this justice did violated due process in a way that sets standards? How do you find a neutral, administrable standard to apply going forward?”
The high court is venturing into a “very thorny area,” said Richard E. Flamm, author of a nationwide treatise on judicial disqualification and chairman of the Bar Association of San Francisco Ethics Committee. “I’m sure whatever they do will be the source for a great deal more case law,” he added. “I don’t know whether it will resolve or clarify anything, but I’m sure it will be litigated.”
Between the $50 million verdict and the filing of an appeal by Don Blankenship, president of Massey Coal Co., with the West Virginia Supreme Court of Appeals in 2006, Blankenship reportedly gave $3 million, the bulk of which went to his so-called Section 527 organization to defeat the incumbent justice, and about $500,000 of which was in direct support of then-attorney Benjamin.
The $3 million 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. Benjamin was elected and seated in 2004.
When faced with Massey’s appeal, Benjamin twice rejected motions by Hugh Caperton — the president of Harmon Mining Co., which won the $50 million award — that he recuse himself because Blankenship’s “extraordinary” financial support for Benjamin’s campaign created a “constitutionally unacceptable appearance of impropriety.” Benjamin twice joined in a 3-2 vote to overturn the verdict award.
The case has drawn more than a dozen amicus briefs — most supporting Caperton — including those from former state chief justices, bar organizations, corporations, states and citizen groups. And the two parties — Caperton and Massey Coal — have enlisted the skills of veteran Supreme Court advocates: Theodore B. Olson, a partner at Gibson, Dunn & Crutcher, for Caperton, and Andrew Frey, a partner at Mayer Brown, for Massey.
In the high court, the legal battle is over the due process standard and whether it required Benjamin to recuse in this situation. Olson argues that the high court has repeatedly held that due process requires recusal “not only where there is proof that a judge is actually biased, but also where an objective inquiry establishes a probability of bias on a judge’s part.”
That does not mean, he said, that recusal is constitutionally required whenever a judge receives campaign support from a litigant or an attorney — especially when that support represents only a small fraction of the total support for the judge’s campaign.
But in the Massey appeal, Olson said, there were at least five reasons why Blankenship’s contributions created a “constitutionally unacceptable probability” that the judge was biased in favor of Massey: the “staggering amount of money” that Blankenship spent; the fact that those expenditures represented more than half of Benjamin’s total financial support; Blankenship’s additional fundraising efforts on the campaign’s behalf; the fact that the campaign contributions were made while preparing the multimillion-dollar appeal to the state supreme court; and the fact that Benjamin’s participation in the appeal was not subject to review by any other justice.
“Where, as here, the ‘appearance of bias’ is serious enough to create a ‘probability’ that the judge is actually biased against a litigant, due process requires the judge’s recusal,” Olson concludes.
Mayer Brown’s Frey counters that the high court has never held that due process requires recusal for either a “probability of bias” or “bias” in general. “The court has found disqualification constitutionally required only when — unlike here — the judge had a pecuniary interest in the outcome of the case, or in certain situations arising in contempt proceedings, where special rules apply,” he argues. Even if “probability of bias” were the constitutional standard, he contends, a judge who might feel a “debt of gratitude” to a litigant would not meet that standard.
“Such a theory is only loosely linked to probable bias, would have no limiting principle, would be entirely unworkable, and would create serious administrative problems for courts,” he concludes.
In an amicus brief supporting neither side, the Conference of Chief Judges tells the court that a judge may be constitutionally disqualified from presiding over a case for reasons other than just actual bias or a financial interest in the outcome. Those two categories, it says, are not broad enough to deal with the problems.
Due process may be implicated if political support for a judge is extraordinary, according to the conference. Although such cases will be rare, it said, the high court should consider such factors as the size, nature, timing and effectiveness of the support; the supporter’s prior political efforts; the pre-existing relationship between the supporter and the judge; and the relationship between the supporter and the litigant in the particular suit if they are not identical.
But seven states, in an amicus brief by Alabama Solicitor General Kevin Newsome, argue that states historically have policed judicial bias through statutes, rules and bar codes. Olson’s position, they contend, “would carry the Court well beyond existing due-process doctrine and make virtually every state-court recusal dispute a ‘federal case.’ “
Ethics scholar Stephen Gillers of New York University School of Law said he finds the case “so easy” that it’s a “nonstarter.” Benjamin, he said, received two-thirds of his contributions via Blankenship. The total support was $3 million with $50 million at stake in the appeal. “I can’t imagine there’s a litigant in the country who would feel no alarm if he was facing an adversary with the same numbers,” he said. “That’s the test the court laid down for due process in Aetna [Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986)]. That’s the beginning and ending for me. The appearance of justice is just as important as justice. It’s easily met here.”
The case is hard in the sense that numbers are involved, he said. “They don’t have to say $3 million as opposed to some other amount triggers due process. I think they have to provide some standard, but there’s going to be a gray area no matter what. They can say that. The law proceeds in fits and starts.”
Judicial ethics scholar Charles Gardner Geyh of Indiana University Maurer School of Law — Bloomington agreed the case was “easy” and that Benjamin should have recused himself if the appearance of bias were the standard. “The tougher question is: Does this rise to the level of a due process problem?” he said.
Geyh said he can understand concerns about where this argument ends. “Are we going to say perception problems categorically will give rise to due process problems? I think not,” he said. The critical question is whether money in judicial elections by itself can give rise to a due process problem, he said. “If it can, the court may say this is the extreme situation where it will, and then let the lower courts fiddle with it. If they say there’s no due process violation, that tells you what you need to know and everyone goes to the bunkers.”
Although most states have adopted recusal standards, and many are more rigorous than the constitutional due process standard, enforcement has been inconsistent, said Geyh and American’s Frost.
“The biggest problem is on these appellate, multimember courts,” said Frost. “The judges in the end can’t be objective and impartial about their own potential for bias . . . .I think that’s problematic.”
A number of states have trial judges who automatically recuse themselves if they get a petition, she said. The system at trial level is actually “pretty good,” said Frost, adding, “It’s frankly the appellate level and the Supreme Court of the United States where it isn’t.”
The nation needs to have a conversation about elected judges, said Frost. “A Supreme Court case like this is a moment when a lot of different players can think about how they want these elections to work if they want judicial elections. I think we will keep the elections. The question is how do we regulate and police them.”