Must a judge recuse himself in a case where a substantial campaign contributor is a party?
The judge, aloof in his black robes, sits as the incarnation of the nation's courts and of the ideals those courts are meant to embody: impartiality, fairness, and, above all, justice. However, judges are also human and liable to err; as such, they are themselves judged by those involved in or reporting on legal proceedings. Consequently, the avoidance of bias, apparent or otherwise, has been a matter of concern for those regulating the courts-chiefly the judges themselves. While a judge may well be able to administer justice even when a personal bias exists, the Supreme Court has held that the Due Process Clause of the Fourteenth Amendment requires judges and tribunals to avoid even the mere appearance of bias. This case concerns an elected justice-that is, a judge sitting on the highest court of a state judicial system-who remained at the bench to administer a case involving a company whose CEO had contributed substantially to that justice's election campaign. Petitioner Hugh M. Caperton argues that this individual, Justice Brent Benjamin, ought to have recused himself and not administered the trial because of the appearance of bias, especially as he was the deciding figure in this case. Conversely, Respondent Massey Coal Co. contends that Justice Benjamin was in compliance with due process and that he stood to gain nothing from the outcome of the trial. This case offers the Supreme Court the opportunity to set the standards by which judges will be required to recuse themselves from cases involving apparent bias.
Questions as Framed for the Court by the Parties
Justice Brent Benjamin of the Supreme Court of Appeals of West Virginia refused to recuse himself from the appeal of the $50 million jury verdict in this case, even though the CEO of the lead defendant spent $3 million supporting his campaign for a seat on the court--more than 60% of the total amount spent to support Justice Benjamin's campaign-- while preparing to appeal the verdict against his company. After winning election to the court, Justice Benjamin cast the deciding vote in the court's 3-2 decision overturning that verdict. The question presented is whether Justice Benjamin's failure to recuse himself from participation in his principal financial supporter's case violated the Due Process Clause of the Fourteenth Amendment.
In 1998 the Petitioners, Hugh M. Caperton, Harman Development Corporation, Harman Mining Corporation, and Sovereign Coal Sales, Inc. sued Respondent A.T. Massey Coal Company, Inc. and several affiliated companies to recover damages in the Circuit Court of Boone County, West Virginia. In 2002 a jury found Massey liable for tortious interference with existing contractual relations, fraudulent misrepresentation, and fraudulent concealment, and awarded Caperton and Harman more than $50,000,000 in compensatory and punitive damages. Caperton claims, among other things, that Massey entered into negotiations to purchase Harman mine, used confidential information to decrease the mine's value and discourage other buyers, delayed finalizing the agreement to undermine Harman's financial position, and that Massey's CEO and President, Don L. Blankenship, intended to force Harman into bankruptcy.
The recusal issues that form the basis of this case are not part of the decision below and as a result the facts are largely taken from the party briefs. In 2004, Brent Benjamin ran against incumbent Justice Warren McGraw, for a seat on the West Virginia Supreme Court of Appeals. Mr. Blankenship opposed Justice McGraw, and spent $500,000 on "literature and advertising to convince the electorate that Justice McGraw was not the right person for the job." In accordance with West Virginia law, he did this without the cooperation or consent of Benjamin's campaign. Blankenship also gave $2,500,000 to And for the Sake of the Kids (ASK), an organization that ran ads and held events opposing Justice McGraw. Blankenship gave $1,000 to Benjamin's campaign, and Massey's Political Action Committee also gave $1,000; no other contributions were made by Massey and its subsidiaries. Benjamin won the election and began his twelve-year term on January 1, 2005.
In anticipation of Massey's 2006 petition in the West Virginia Supreme Court of Appeals seeking review of the $50,000,000 judgment, Caperton filed a motion requesting Justice Benjamin recuse himself from participation in the appeal. In April of 2006, Justice Benjamin declined to recuse himself, stating that there was no objective evidence showing any bias on his part. In a 3-2 decision, the West Virginia court reversed the verdict against Massey and dismissed the case with prejudice, with Justice Benjamin joining in the majority opinion. In his impassioned dissent, Justice Starcher criticized the reasoning of the majority's opinion and stated, "I am one judge voting on this case who can say that I owe nothing to Mr. Blankenship . . . . It has been amusing for me to see Mr. Blankenship trying with all his might to create the circumstances where I would be forced to step aside and let him have in toto the kind of Court he wants . . . ."
Caperton petitioned for a rehearing, and Justice Benjamin denied the two further petitions asking that he recuse himself. During this period, Chief Justice Maynard, who also took part in the decision, chose to recuse himself after photos surfaced of him vacationing with Mr. Blankenship while Massey's appeal was pending. Justice Benjamin became chief justice and appointed justices to replace Justice Maynard and Justice Starcher, who also recused himself. On rehearing, the West Virginia court again reversed the verdict against Massey in a 3-2 decision, in which Justice Benjamin again joined the majority. The two dissenting justices objected to the court's reasoning, but also condemned Justice Benjamin's failure to recuse himself and its implications for due process. Justice Benjamin filed a later concurring opinion in which he defended his decision not to recuse himself on the basis of the "appearance" of bias and pointed out the length of time between the election and the decision in the case, and the fact that he had voted against Massey in other cases.
Caperton appealed and on November 14, 2008 the Supreme Court granted certiorari to consider whether Justice Benjamin's failure to recuse himself violated Caperton's rights under the Due Process Clause of the Fourteenth Amendment.
The "Appearance of Bias" Standard and Its Application to Future Cases
Petitioner Hugh M. Caperton argues that the Fourteenth Amendment's Due Process Clause requires tribunals to avoid the mere appearance of bias; specifically, Caperton contends that the appearance of bias is so substantial in this case as to require Justice Brent Benjamin to recuse himself in order to avoid the mere likelihood of unfairness. This duty extends to judges even though there may not be an actual bias. The avoidance of even the appearance of impropriety is necessary, he argues, to allow the courts to perform their function and administer justice. Caperton notes that the Supreme Court has emphasized the importance of avoiding the appearance of bias notwithstanding the argument that the honorable members of the judiciary are likely to perform in character and exercise their power justly and judiciously. The constitutionally imposed duty for a judge to recuse him or herself is as equally weighty in the civil setting as it is in the criminal.
Respondent, Massey Coal Co. argues that "there is no basis in history, precedent, or the practice of the Court for the notion that a judge's ‘bias' in general-let alone a mere ‘probability of bias'-mandates disqualification under the Due Process Clause." The Court has almost never held a judge constitutionally barred from sitting for any other reason than having a pecuniary interest in the outcome of the case, which was the standard at common law. The Court required recusal in only three cases where pecuniary interest was not involved. These cases are limited to recusal in the context of contempt and do not apply to civil or criminal cases.
Caperton continues by arguing that it is rarely, if ever, possible to prove that a judge is indeed subjectively biased either against or in favor of a particular litigant. As such, in order to ensure a fair trial before a fair tribunal recusal motions typically rely upon facts about the judge that are known to the public. It is nonsensical, he argues, to demand that a litigant provide conclusive proof that a judicial bias exists. Moreover, a judge who has received either favorable treatment or who has suffered indignation by one of the parties may not even be aware of subconscious bias, thus making recusal all the more important. Caperton contends that public confidence in the judicial system is crucial to its proper functioning, and that failing to allow a judge who is likely to have a bias would cause the Judiciary irreparable harm.
Massey points out that every lower court but one has justifiably rejected the idea that campaign expenditures require judicial disqualification. Imposing a "probability of bias" standardwould quickly extend beyondcampaign financing to other types of support a judge receives, including newspaper, trade and labor organization, and civic group endorsements. It could also be applied, he contends, to appointed judges who could arguably be expected to feel grateful for their appointments and to return the favor to their appointers. Massey argues that Caperton's standard is unworkable, as it fails to propose "any test for distinguishing what the Constitution prohibits from what it permits." Imposing this "probability of bias" standard would therefore encourage further litigation and waste of judicial resources. Furthermore, Massey argues, a new rule is unnecessary because many States are already addressing the issue of judicial campaign financing by, for example, imposing contribution limits, providing public financing for judicial elections, and requiring recusal when judges receive contributions from a party over a certain limit. In addition to their own efforts, he points out, the states can look to the ABA's Model Code for further disqualification provisions.
Caperton points out that Massey's position is inconsistent with its prior behavior. In a separate action, Massey sought the recusal of another justice who had publically criticized Mr. Blankenship. In that action, Massey argued that it would be a violation of the Due Process Clause to permit a judge who is the subject of a motion for recusal to be allowed to solely determine the merits of that very motion. Caperton argues that this is, in fact, the issue in the case at the bar, and that Massey's present position is "an abrupt about-face" as Massey's motion for recusal was based upon the same claim as is Caperton's in this present action, namely, a judge's harboring of "some form of substantial actual bias."
Notwithstanding Precedential Effect, What is the Just Outcome as Applied to These Facts?
Massey contends that even under the standard Caperton advocates, Justice Benjamin's recusal was not required for a number of reasons. First, Justice Benjamin has voted against Massey in at least five other cases. It is unreasonable, he claims, to believe that Justice Benjamin voted against Massey in these cases purely to deflect suspicion when he cast the deciding vote in the current case. Second, all of Mr. Blankenship's campaign expenditures, save for a single contribution of $1,000, were independent of Justice Benjamin's campaign. Moreover, the expenditures were made by Blankenship, who is not a party in the case, and not by Massey. Third, Massey points out that Benjamin's election was not due solely to Blankenship's contributions, but that a number of other factors, including the fact that every newspaper except one endorsed Justice Benjamin's campaign, contributed to his victory. Additionally, Massey claims that Justice Benjamin was actually an incidental beneficiary of Blankenship's primary intention, which was to remove Justice McGraw from office. As a result, any gratitude Benjamin felt presumably faded with the passage of the three years following his election and Massey's appeal. Finally, Massey argues that there is no indication of any prior relationship or improper agreement between Benjamin and Blankenship.
Caperton offers a different characterization of the facts, arguing that the benefits of Mr. Blankenship's actions--both independent and in concert with political committees--directly accrued to Justice Benjamin. Firstly, he claims, the "sheer volume" of Mr. Blankenship's expenses in support of Justice Benjamin's election campaign cannot be overlooked. Although not in breach of West Virginia law limiting individual campaign contributions to $1,000, Blankenship's $3 million worth of direct expenditures and donations to And For The Sake Of The Kids is nonetheless a favor for which Justice Benjamin would grateful. Secondly, Mr. Blankenship's contribution was not matched by any other contributors; rather, Mr. Blankenship's input amounted to 60% of Justice Benjamin's campaign funding. Thirdly, Mr. Blankenship not only contributed financially, but personally as well, going so far as to write to doctors in the constituency to urge them to contribute $1,000 to Justice Benjamin's campaign. Caperton acknowledges that politicians are permitted to be swayed by campaign contributions, but argues that members of the judiciary are absolutely prohibited from doing as much by the due process clause. Caperton argues that Justice Benjamin benefited from the extensive criticism launched against Justice Benjamin's sole opponent and from the praise that was lauded on Justice Benjamin. Having won by such a narrow margin (53-to-47 percent), it is only natural, he claims, that Justice Benjamin would "feel a debt of gratitude to Mr. Blankenship." Lastly, although Mr. Blankenship is not a party, Caperton returns, his interests are substantially aligned with those of the A.T. Massey Coal Company, as Mr. Blankenship is the chairman, CEO, and president of the company.
Massey points out that even under the ABA Model Code, Justice Benjamin's recusal would not be required, as "Blankenship is not a party or a lawyer for any party; and the expenditures at issue were not contributed to Justice Benjamin's campaign." Massey argues that it would be ridiculous to require recusal under the Due Process Clause of the Fourteenth Amendment, which represents only a constitutional "floor," when it would not be required "under the provision of a more stringent model code that was specifically designed to cover the subject.
The Supreme Court's decision in this case will have a significant impact on judges who are elected to their positions and receive funding from their supporters. Caperton argues that recusal becomes necessary in cases where judges have received substantial funding from an individual with an interest in the case, and is especially problematic where the justice's decision is not subject to review by any other justice. In support of Caperton, former chief justices and justices argue that campaign contributions to judicial elections present a situation that was unknown at common law, which only required recusal based on pecuniary interest. This case presents a hybrid situation where there is a financial transaction, but the benefit the judge receives is an election rather than a fee. The former justices argue that, though the benefit in this case is something other than money, it is still important enough to justify recusal.
Massey argues that the gratitude candidates feel for their supporters does not require disqualification. Massey argues that imposing such a standard would have no limiting principle, and would lead to "serious administrative problems" for the lower courts. Another group of current and former chief justices and justices argue that allowing such a system of disqualification would allow litigants to "undermine the people's democratically expressed preference for a certain type of judicial philosophy," and give litigants the opportunity to selectively attempt to disqualify judges with whose viewpoint they disagree.
("ABA") argues in support of Caperton that a judge's failure to recuse himself in a case involving substantial financial contributors undermines the public's essential trust in the impartiality of the judicial system. The ABA points out that though state judicial elections used to be "low key affairs," recent years have seen increased spending by political donors who may have their own interests at heart. It argues that there is a growing perception that "large donors call the tune." The ABA suggests that this case is an opportunity for the Court to articulate considerations that should govern recusal on due process grounds when a campaign contributor is a party to the case. The Conference of Chief Justices, who entered an amicus brief in support of neither party, also argues that this case represents the perfect opportunity for the Court to articulate a workable standard for when the Due Process Clause prevents an elected state judge from hearing a case because of campaign support that judge has received. It argues that the Court should take into account a number of factors, including "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" when deciding whether recusal is mandated. The Brennan Center argues that if the Court does not speak decisively in this case, it will create the impression among litigants that it is acceptable to buy influence.
The James Madison Center for Free Speech argues that requiring recusal based on campaign spending would create a presumption of corruption, and "basing recusal on past rather than present circumstances, would limit a judge's ability to control the circumstances under which she must recuse." The Center claims there is no evidence that judges are influenced by campaign contributions or by contributions to independent groups that support their campaigns. Also, although surveys indicate that the public is skeptical about the role of money in politics, data also indicates that courts are one of the institutions in which the public currently has the most confidence. Professors Rotunda and Dimino further argue that imposing a "probability of bias" test on the state courts would "engraft an unmanageable system of federal review" onto the state courts, and endanger the traditional practice of electing state court judges.
"Uneasy lies the head that wears a crown," Shakespeare tells us, and no less easily ought the judge in his robes sit: while a monarch shoulders the weight of a kingdom, the judge shoulders that of the entire judicial system. For this very reason, the Supreme Court has deemed that judges must avoid not only bias and impropriety, but even the mere appearance thereof. This case is about preserving the court's image as the guardian of justice, blindly and impartially administered. In this case, the Supreme Court will determine the standards by which a judge must recuse him or herself in order to avoid sullying not only the judge's personal reputation, but also the integrity of the judgment and the image of the courts themselves.