Constitutional Law

Caperton v. A.T. Massey: Time For High Court To Address Judicial Integrity

By Amanda Frost, associate professor of law, American University Washington College of Law. Frost recently participated in an ACS press briefing on Caperton v. A.T. Massey. Video of that event is available here.

On March 3, the Supreme Court will hear oral argument in Caperton v. A.T. Massey Coal Co. to determine whether the Due Process Clause demands that an elected state court judge recuse himself from hearing a case involving a significant contributor to his campaign. The case has cast a spotlight on judicial elections, which have recently been transformed from quiet, low key affairs into high profile, big money political events. Although judicial elections themselves are not under review, the Court should use Caperton as a vehicle to rein in out-of-control judicial campaigns and prevent litigants from literally buying themselves judges who will cast the winning votes in their favor.   

The case originated in the state courts in West Virginia. Petitioner Caperton won a $50 million verdict against Massey Coal Company in a West Virginia trial court. While the case was on appeal, the CEO of Massey Coal, Don Blankenship, spent $3 million in a successful effort to elect Brent Benjamin to the Supreme Court of Appeals of West Virginia.  (Blankenship boasted that he spent 'one dollar for every West Virginian,' though in fact it's closer to $1.66). Justice Benjamin refused to recuse himself from the case, and went on to cast the deciding vote in the 3-2 decision to overturn the verdict against Massey. The U.S. Supreme Court will now decide whether Justice Benjamin's refusal to step aside violated due process.

Caperton argues that due process demands recusal not only where there is proof of actual bias, but also where 'an objective inquiry establishes a probability of bias on a judge's part.' The 'probability of bias' standard is easily met in Justice Benjamin's case, Caperton contends, because of a number of exceptional circumstances: The large amount of money Blankenship contributed, which constituted over 60% of the total spent on Benjamin's campaign, coupled with the fact that the contributions were made while the case was on appeal, and followed by Justice Benjamin's deciding vote in Massey's favor.      

Caperton's legal team, headed by former Solicitor General Ted Olson, is careful not to challenge the constitutionality of judicial elections, or suggest that judges must recuse whenever a campaign contributor appears before them. Nor does Caperton seek to establish a bright line rule that should govern recusals by elected judges in cases involving their campaign contributors.  Instead, Caperton contends that due process calls for a flexible, contextual analysis that takes into account a multiplicity of factors when determining whether a judge must step aside.

Massey responds that Caperton's 'probability of bias' standard is unworkable, will lead to confusion, and will inspire satellite litigation in every case in which an elected judge receives support (financial or otherwise) from one of the parties before it. Massey further contends that requiring a sitting judge to disqualify whenever a party supported his election in any significant way is tantamount to challenging the very practice of electing, rather than appointing, state judges. 

Although the outcome of this case is hard to predict, one thing is clear: Judicial elections are here to stay. Currently, thirty-nine states elect some or all of their judges, and the practice has been widespread since the mid-nineteenth century.  But the reality that most states elect their judges should not stop the Court from stepping in to police a process that is jeopardizing the legitimacy of state judiciaries. The Court should take this opportunity to make states clean up judicial elections, and establish more stringent recusal obligations for elected judges sitting on cases involving their major contributors.

Is the Court likely to do so? The fact that the case was relisted at least three times before the Court voted to grant it suggests that the Justices are deeply conflicted about how to address the issue. As is so often the case, it would appear that the key to either party's success lies in winning over Justice Kennedy.  So it is worth noting that in his concurrence in Republican Party of Minnesota v. White, 536 U.S. 765 (2002), Justice Kennedy suggested that states adopt rigorous recusal standards to preserve judicial integrity. It would seem high time for the U.S. Supreme Court to stop suggesting and start mandating that states do so.

Full post as published by ACS Blog on March 02, 2009 (boomark / email).