08 June 2009

Due Process Can Require Recusal of Judge

Normally, judges determine if they will recuse themselves from hearing a case by themselves, and the decision is effectively unappealable. But, the U.S. Supreme Court found today, in a 5-4 decision in the case of Caperton v. A.T. Massey Coal Co., that sometimes a decision must be reversed pursuant to the 14th Amendment due process clause if a judge fails to recuse himself when he should.

The case involved an elected West Virginia Supreme Court judge who was a deciding vote in favor of a coal company in a big dollar case where the judge took huge campaign contributions whilie the case was pending. The official syllabus states the facts as follows:

After a West Virginia jury found respondents, a coal company and its affiliates (hereinafter Massey), liable for fraudulent misrepresentation, concealment, and tortious interference with existing contractual relations and awarded petitioners (hereinafter Caperton) $50 million in damages, West Virginia held its 2004 judicial elections. Knowing the State Supreme Court of Appeals would consider the appeal, Don Blankenship, Massey’s chairman and principal officer, supported Brent Benjamin rather than the incumbent justice seeking reelection. His $ 3 million in contributions exceeded the total amount spent by all other Benjamin supporters and by Benjamin’s own committee. Benjamin won by fewer than 50,000 votes. Before Massey filed its appeal, Caperton moved to disqualify now-Justice Benjamin under the Due Process Clause and the State’s Code of Judicial Conduct, based on the conflict caused by Blankenship’s campaign involvement. Justice Benjamin denied the motion, indicating that he found nothing showing bias for or against any litigant. The court then reversed the $50 million verdict. During the rehearing process, Justice Benjamin refused twice more to recuse himself, and the court once again reversed the jury verdict. Four months later, Justice Benjamin filed a concurring opinion, defending the court’s opinion and his recusal decision.

The West Virgina Supreme Court's decision was made by a 3-2 vote.

Justice Kennedy and the four liberals on the court reached their decision by rejecting an actual bias test and enunciating the following test (per the syllabus again, citations omitted).

[T]he question is whether, “under a realistic appraisal of psychological tendencies and human weakness,” the interest “poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.” There is a serious risk of actual bias 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 proper inquiry centers on the contribution’s relative size in comparison to the total amount contributed to the campaign, the total amount spent in the election, and the apparent effect of the contribution on the outcome. It is not whether the contributions were a necessary and sufficient cause of Benjamin’s victory. In an election decided by fewer than 50,000 votes, Blankenship’s campaign contributions—compared to the total amount contributed to the campaign, as well as the total amount spent in the election—had a significant and disproportionate influence on the outcome. And the risk that Blankenship’s influence engendered actual bias is sufficiently substantial that it “must be forbidden if the guarantee of due process is to be adequately implemented.” The temporal relationship between the campaign contributions, the justice’s election, and the pendency of the case is also critical, for it was reasonably foreseeable that the pending case would be before the newly elected justice. There is no allegation of a quid pro quo agreement, but the extraordinary contributions were made at a time when Blankenship had a vested stake in the outcome. Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when—without the other parties’ consent—a man chooses the judge in his own cause. Applying this principle to the judicial election process, there was here a serious, objective risk of actual bias that required Justice Benjamin’s recusal.

Shorter version: When it looks like someone totally bought your vote in a particular case with campaign contributions, you must recuse, even if your vote wasn't actually bought.

Dissenters argue that this case opens up a huge can of worms that will be raised in a wide variety of cases and forces them to draw arbitrary lines. But, I suspecct that the actual impact of this decision on court cases may be modest. It applies only when the case in which (1) a recusal was sought, (2) the judge did not recuse, (3) the a case that was "pending or imminent" when campaign contributions were made, (4) a person with a personal stake in the case made the contribution, (5) the contributor wins in court, (5) the non-recusing judge was a swing vote in favor of the contributor, and (6) the contribution has a significant and disproportionate influence on the judge's electoral win of the judge (usually because the contributor was a leading contributor in the campaign and the race was a fairly close one).

In practice, a large percentage of judicial seats (including all such seats in Colorado) are appointed, are not even close when selected by election, are for long terms with the vast majority of cases that will be considered not pending or imminent when the election is being conducted, the vast majority of cases do not involve major judicial campaign contributors, and a majority of cases are not decided by a single vote in a state supreme court. Also notably, the outcome will almost never impact criminal cases, outside of a tiny handful of high profile white collar crime cases, as criminal defendants are rarely major campaign contributors to judges.

The remedy is also very modest -- remand of the case to the court that decided it, with the conflicted judge recused. The opinion does not require that the judge be removed from office or personally sanctioned.

While not addressed directly in the case, the reasoning also has the potential to more dramatically implicate one sided arbitration arrangements under the theory that "Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when—without the other parties’ consent—a man chooses the judge in his own cause."

The case also reaffirms, in dicta, the prior line of cases concerning recusal when the judge has a personal financial interest in the case or a compensation incentive to vote in a particular way. This case went beyond those cases by looking at campaign contributions which give a judge a job but do not personally benefit a judge.

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