In a 5-4 decision, the U.S. Supreme Court yesterday issued an extraordinary decision that has potential impact not only on products liability and mass torts, but all litigation. The Court held that due process require a state supreme court justice to recuse himself from an appeal involving a major campaign contributor. Caperton v. A. T. Massey Coal Co., Inc., (U.S. S.Ct. 6/08/09).
After a West Virginia jury found Massey liable for $50 million in damages, West Virginia held its 2004 judicial elections. Massey’s chairman and principal officer supported the eventual winning candidate for the state supreme court with $3 million in contributions. Caperton moved to disqualify new-Justice Benjamin under the Due Process Clause and the State’s Code of Judicial Conduct, based on the alleged conflict caused by this campaign involvement. Justice Benjamin denied the motion, indicating that he found nothing showing bias for or against any litigant. The West Virginia court then reversed the $50 million verdict in a 3-2 vote. During the rehearing process, Justice Benjamin refused twice more to recuse himself, and the state 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.
Caperton petitioned the U.S. Supreme Court. Writing for the majority, Justice Kennedy noted first that because the objective standards implementing the Due Process Clause do not require proof of actual bias, the Court did not have to review Justice Benjamin’s subjective findings of impartiality and propriety and did not need to 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. There is a serious risk of actual bias, wrote the majority, 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, the 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. The temporal relationship between the campaign contributions, the justice’s election, and the pendency of the case was 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 the party 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.
The dissent authored by Chief Justice Roberts argued that the Court’s new “rule” provides no guidance to judges and litigants about when recusal will be constitutionally required. This will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be. He lists more than 40 questions that are raised, not answered, by the majority’s analysis, noting lower courts will now have to determine things like: How much money is too much money? What level of contribution or expenditure gives rise to a “probability of bias”? How do we determine whether a given expenditure is “disproportionate”? Disproportionate to what? Are independent, non-coordinated expenditures treated the same as direct contributions to a candidate’s campaign? How long does the probability of bias last? Does the probability of bias diminish over time as the election recedes? Does it matter whether the judge plans to run for reelection? What if the “disproportionately” large expenditure is made by an industry association, trade union, physicians’ group, or the plaintiffs’ bar? Must the judge recuse in all cases that affect the association’s interests? Must the judge recuse in all cases in which a party or lawyer is a member of that group? Does it matter how much the litigant contributed to the association?
The dissent argues that the majority’s only answer — that the present case is an “extreme” one, so there is no need to worry about other cases (“this is an exceptional case….our decision today addresses an extraordinary situation…. rule will be confined to rare instances”) – is just insufficient.