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When the Supreme Court's decision in Caperton v. A.T. Massey Coal Co. was reported yesterday, the facts were described by the Washington Post as:
A five-member majority of the court decided that West Virginia Supreme Court Justice Brent Benjamin erred in participating in a case overturning a $50 million verdict against a company headed by a man who spent $3 million on the justice's election.
See article. My gut reaction was that this presented such a clear case of the appearance of impropriety that I simply could not see how the minority - in this case Justice Roberts, Alito, Scalia and Thomas - could have come to a different conclusion.
Having now read the case, here is the key detail not in the papers - the owner of Massey Coal donated precisely $1,000 to the Judges reelection campaign. All other spending - all $2,999,000 of it - by the owner of Massey Coal Co. took place wholly beyond the Judge's control. That puts a distinctly different spin on the case.
The U.S. Constitution has been read to require judges to recuse themselves in two cases - where the judge has a direct pecuniary interest in the case or in the criminal contempt context where a judge is essentially doing the appeal of his own earlier decision to prosecute made in a separate proceeding. State law in those jurisdictions that allow the election of judges can of course add to these Constitutional mandates. But the issue in Massey was whether there should be an extension of these few bright line Constitutional rules. The majority in Massey found that the Judge's failure to recuse himself violated our Constitution's Due Process Clause, reasoning:
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.”
(Quote from the Syllabus) The problem with this decision, as pointed out by Chief Justice Roberts in his dissent, is that the majority's is an ad hoc decision. It interjects the Supreme Court into state electoral politics in a myriad of ways while opening a Pandora's box for litigants. The judgment provides no bright line rules as to when recusal is required. Indeed, CJ Roberts provides a laundry list of now justicable issues as a result of the majority opinion:
With little help from the majority, courts will now have to determine:
1. How much money is too much money? What level of contribution or expenditure gives rise to a “probability of bias”?
2. How do we determine whether a given expenditure is “disproportionate”? Disproportionate to what?
3. Are independent, non-coordinated expenditures treated the same as direct contributions to a candidate’s campaign? What about contributions to independent outside groups supporting a candidate?
4. Does it matter whether the litigant has contributed to other candidates or made large expenditures in connection with other elections?
5. Does the amount at issue in the case matter? What if this case were an employment dispute with only $10,000 at stake? What if the plaintiffs only sought non-monetary relief such as an injunction or declaratory judgment?
6. Does the analysis change depending on whether the judge whose disqualification is sought sits on a trial court, appeals court, or state supreme court?
7. 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?
8. 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?
9. What if the case involves a social or ideological issue rather than a financial one? Must a judge recuse from cases involving, say, abortion rights if he has received “disproportionate” support from individuals who feel strongly about either side of that issue? If the supporter wants to help elect judges who are “tough on crime,” must the judge recuse in all criminal cases?
10. What if the candidate draws “disproportionate” support from a particular racial, religious, ethnic, or other group, and the case involves an issue of particular importance to that group?
11. What if the supporter is not a party to the pending or imminent case, but his interests will be affected by the decision? Does the Court’s analysis apply if the supporter “chooses the judge” not in his case, but in someone else’s?
12. What if the case implicates a regulatory issue that is of great importance to the party making the expenditures, even though he has no direct financial interest in the outcome (e.g., a facial challenge to an agency rulemaking or a suit seeking to limit an agency’s jurisdiction)?
13. Must the judge’s vote be outcome determinative in order for his non-recusal to constitute a due process violation?
14. Does the due process analysis consider the underlying merits of the suit? Does it matter whether the decision is clearly right (or wrong) as a matter of state law?
15. What if a lower court decision in favor of the supporter is affirmed on the merits on appeal, by a panel with no “debt of gratitude” to the supporter? Does that “moot” the due process claim?
16. What if the judge voted against the supporter in many other cases?
17. What if the judge disagrees with the supporter’s message or tactics? What if the judge expressly disclaims the support of this person?
18. Should we assume that elected judges feel a “debt of hostility” towards major opponents of their candidacies? Must the judge recuse in cases involving individuals or groups who spent large amounts of money trying unsuccessfully to defeat him?
19. If there is independent review of a judge’s recusal decision, e.g., by a panel of other judges, does this completely foreclose a due process claim?
20. Does a debt of gratitude for endorsements by newspapers, interest groups, politicians, or celebrities also give rise to a constitutionally unacceptable probability of bias? How would we measure whether such support is disproportionate?
21. Does close personal friendship between a judge and a party or lawyer now give rise to a probability of bias?
22. Does it matter whether the campaign expenditures come from a party or the party’s attorney? If from a lawyer, must the judge recuse in every case involving that attorney?
23. Does what is unconstitutional vary from State to State? What if particular States have a history of expensive judicial elections?
24. Under the majority’s “objective” test, do we analyze the due process issue through the lens of a reasonable person, a reasonable lawyer, or a reasonable judge?
25. What role does causation play in this analysis? The Court sends conflicting signals on this point. The majority asserts that “[w]hether Blankenship’s campaign contributions were a necessary and sufficient cause of Benjamin’s victory is not the proper inquiry.” Ante, at 15. But elsewhere in the opinion, the majority considers “the apparent effect such contribution had on the outcome of the election,” ante, at 14, and whether the litigant has been able to “choos[e] the judge in his own cause,” ante, at 16. If causation is a pertinent factor, how do we know whether the contribution or expenditure had any effect on the outcome of the election? What if the judge won in a landslide? What if the judge won primarily because of his opponent’s missteps?
26. Is the due process analysis less probing for incumbent judges—who typically have a great advantage in elections—than for challengers?
27. How final must the pending case be with respect to the contributor’s interest? What if, for example, the only issue on appeal is whether the court should certify a class of plaintiffs? Is recusal required just as if the issue in the pending case were ultimate liability?
28. Which cases are implicated by this doctrine? Must the case be pending at the time of the election? Reasonably likely to be brought? What about an important but unanticipated case filed shortly after the election?
29. When do we impute a probability of bias from one party to another? Does a contribution from a corporation get imputed to its executives, and vice-versa? Does a contribution or expenditure by one family member get imputed to other family members?
30. What if the election is nonpartisan? What if the election is just a yes-or-no vote about whether to retain an incumbent?
31. What type of support is disqualifying? What if the supporter’s expenditures are used to fund voter registration or get-out-the-vote efforts rather than television advertisements?
32. Are contributions or expenditures in connection with a primary aggregated with those in the general election? What if the contributor supported a different candidate in the primary? Does that dilute the debt of gratitude?
33. What procedures must be followed to challenge a state judge’s failure to recuse? May Caperton claims only be raised on direct review? Or may such claims also be brought in federal district court under 42 U. S. C. §1983, which allows a person deprived of a federal right by a state official to sue for damages? If §1983 claims are available, who are the proper defendants? The judge? The whole court? The clerk of court?
34. What about state-court cases that are already closed? Can the losing parties in those cases now seek collateral relief in federal district court under §1983? What statutes of limitation should be applied to such suits?
35. What is the proper remedy? After a successful Caperton motion, must the parties start from scratch before the lower courts? Is any part of the lower court judgment retained?
36. Does a litigant waive his due process claim if he waits until after decision to raise it? Or would the claim only be ripe after decision, when the judge’s actions or vote suggest a probability of bias?
37. Are the parties entitled to discovery with respect to the judge’s recusal decision?
38. If a judge erroneously fails to recuse, do we apply harmless-error review?
39. Does the judge get to respond to the allegation that he is probably biased, or is his reputation solely in the hands of the parties to the case?
40. What if the parties settle a Caperton claim as part of a broader settlement of the case? Does that leave the judge with no way to salvage his reputation?
Justice Scalia, having the benefit of reading both the majority opinion and Chief Justice Roberts's dissent, weighed in with his own thoughts:
The principal purpose of this Court’s exercise of its certiorari jurisdiction is to clarify the law. . . As The Chief Justice’s dissent makes painfully clear, the principal consequence of today’s decision is to create vast uncertainty with respect to a point of law that can be raised in all litigated cases in (at least) those 39 States that elect their judges. This course was urged upon us on grounds that it would preserve the public’s confidence in the judicial system.
The decision will have the opposite effect. . . .
. . . In the best of all possible worlds, should judges sometimes recuse even where the clear commands of our prior due process law do not require it? Undoubtedly. The relevant question, however, is whether we do more good than harm by seeking to correct this imperfection through expansion of our constitutional mandate in a manner ungoverned by any discernable rule. The answer is obvious.
Actually, to add to that, I think that, in the absence of a showing of actual collusion between the Judge and the Coal Co., the Courts at every level should have been limited to considering only the actual campaign contribution to the Judge in making their determination. It is now possible for a third party to influence recusal by their own acts, rather than any affirmative action of a Judge. And I believe Chief Justice Roberts is correct. The majority has opened a Pandora's Box that will only further degrade and make more complex our system of justice.
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