Legal News

Bribe a judge with campaign money?

By Glen Ashman

Supreme Court Issues Landmark Ruling on Judicial Recusal
The National Law Journal

In a landmark ruling that could affect state judicial elections nationwide, the Supreme Court on Monday ruled that due process requires a state judge to recuse when a party in a case before him or her has had a "significant or disproportionate" influence on placing the judge on the court through a large campaign donation.

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Very distressing is that four justices, in dissent, essentially think it's okay to in effect bribe judges via campaign donations.  Those four are Alito, Roberts, Scalia and Thomas.  Their lack of ethical standards on this issue is appalling.   The other five justices got it exactly right.

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CAPERTON v. A. T. MASSEY COAL CO. (No. 08-22)

Web-accessible at:
     http://www.law.cornell.edu/supct/html/08-22.ZS.html

  Argued: March 3, 2009 -- Decided: June 8, 2009
Opinion author: Kennedy
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   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.



   Held: In all the circumstances of this case, due process
requires recusal. Pp. 6-20.


   (a) The Due Process Clause incorporated the common-law
rule requiring recusal when a judge has "a direct, personal,
substantial, pecuniary interest" in a case, Tumey v. Ohio,
273 U. S. 510 , but this Court has also identified additional
instances which, as an objective matter, require recusal
where "the probability of actual bias on the part of the
judge or decisionmaker is too high to be constitutionally
tolerable," Withrow v. Larkin, 421 U. S. 35 . Two such
instances place the present case in proper context. Pp.
6-11.


   (1) The first involved local tribunals in which a judge
had a financial interest in a case's outcome that was less
than what would have been considered personal or direct
at common law. In Tumey, a village mayor with authority
to try those accused of violating a law prohibiting the
possession of alcoholic beverages faced two potential conflicts:
Because he received a salary supplement for performing
judicial duties that was funded from the fines assessed,
he received a supplement only upon a conviction; and sums
from the fines were deposited to the village's general
treasury fund for village improvements and repairs. Disqualification
was required under the principle that "[e]very procedure
which would offer a possible temptation to the average
man as a judge to forget the burden of proof required to
convict the defendant, or which might lead him not to hold
the balance nice, clear and true between the State and
the accused, denies the latter due process of law." 273
U. S., at 532. In Ward v. Monroeville, 409 U. S. 57 , a
conviction in another mayor's court was invalidated even
though the fines assessed went only to the town's general
fisc, because the mayor faced a " ' possible temptation'
" created by his "executive responsibilities for village
finances." Id., at 60. Recusal was also required where
an Alabama Supreme Court justice cast the deciding vote
upholding a punitive damages award while he was the lead
plaintiff in a nearly identical suit pending in Alabama's
lower courts. Aetna Life Ins. Co. v. Lavoie, 475 U. S.
813 . The proper constitutional inquiry was not "whether
in fact [the justice] was influenced," id., at 825, but
"whether sitting on [that] case ... ' "would offer a possible
temptation to the average ... judge to ... lead him not
to hold the balance nice, clear and true," ' " ibid. While
the "degree or kind of interest ... sufficient to disqualify
a judge ... '[could not] be defined with precision, ' "
id., at 822, the test did have an objective component.
Pp. 7-9.


   (2) The second instance emerged in the criminal contempt
context, where a judge had no pecuniary interest in the
case but had determined in an earlier proceeding whether
criminal charges should be brought and then proceeded to
try and convict the petitioners. In re Murchison, 349 U.
S. 133 . Finding that "no man can be a judge in his own
case," and "no man is permitted to try cases where he has
an interest in the outcome," id., at 136, the Court noted
that the circumstances of the case and the prior relationship
required recusal. The judge's prior relationship with the
defendant, as well as the information acquired from the
prior proceeding, was critical. In reiterating that the
rule that "a defendant in criminal contempt proceedings
should be [tried] before a judge other than the one reviled
by the contemnor," Mayberry v. Pennsylvania, 400 U. S.
455 , rests on the relationship between the judge and the
defendant, id., at 465, the Court noted that the objective
inquiry is not whether the judge is actually biased, but
whether the average judge in his position is likely to
be neutral or there is an unconstitutional " 'potential
for bias,' " id., at 466. Pp. 9-11.


   (b) Because the objective standards implementing the Due
Process Clause do not require proof of actual bias, this
Court does not question Justice Benjamin's subjective findings
of impartiality and propriety and need not determine whether
there was actual bias. Rather, the 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."
Withrow, 421 U. S., at 47. 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." Ibid. 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.
Pp. 11-16.


   (c) Massey and its amici err in predicting that this decision
will lead to adverse consequences ranging from a flood
of recusal motions to unnecessary interference with judicial
elections. They point to no other instance involving judicial
campaign contributions that presents a potential for bias
comparable to the circumstances in this case, which are
extreme by any measure. And because the States may have
codes of conduct with more rigorous recusal standards than
due process requires, most recusal disputes will be resolved
without resort to the Constitution, making the constitutional
standard's application rare. Pp. 16-20.


   ___ W. Va. ___, ___S. E. 2d ___, reversed and remanded.



   Kennedy, J., delivered the opinion of the Court, in which
Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Roberts,
C. J., filed a dissenting opinion, in which Scalia, Thomas,
and Alito, JJ., joined. Scalia, J., filed a dissenting
opinion.

Full post as published by It's (Barely) Legal on June 08, 2009 (boomark / email).