How we select our judges has been a hot topic in the last year. Hugh M. Caperton v. A.T. Massey Coal Co., ___U.S. ____, 2009 WL 1576573 (June 9, 2009), is a case with facts reminiscent of a John Grisham novel. We watched with great interest as it wound its way through the appellate process. On June 9, the United States Supreme Court provided another factor to consider in the continuing debate over merit selection versus political election of state Supreme Court justices. Can a significant campaign contribution made by a party or attorney to a judicial candidate create the appearance of bias that rises to the level of a constitutional violation? The Supreme Court answered: yes it can.
The holding provides interesting and helpful guidance to judges as to when disqualification is constitutionally required. But the opinion’s more profound impact may be in highlighting the perils of selecting justices by partisan election. The Massey Coal case demonstrates that successful candidates of judicial elections may find themselves subject to attacks of impartiality when they receive significant campaign contributions.
Additionally, the dicta in Massey Coal may influence judicial ethics, particularly regarding campaign speech. Some scholars believe that the majority in Massey Coal endorsed state judicial ethics codes that attempt to eliminate the appearance of partiality by restricting the campaign conduct of candidates for judicial office.
Extraordinary Facts Detailing a Unique Election
The extraordinary facts of Massey Coal begin prior to the 2004 judicial elections in West Virginia. A West Virginia jury returned a $50 million verdict in favor of former coal company owner Hugh Caperton against Massey Coal Company. They found that Massey had forced his coal company out of business by engaging in fraudulent misrepresentation, concealment, and tortuous interference with contractual relations. The company appealed the jury verdict to the West Virginia Supreme Court of Appeals. Don Blankenship, Massey Coal’s chairman, CEO, and president raised $3 million in contributions to support attorney Brent Benjamin. He was campaigning to replace incumbent Justice Warren McGraw on the Supreme Court of Appeals. Blankenship’s donations to Benjamin’s committee, and to “And For the Sake of The Kids”, a §527 political organization that supported Benjamin, were more than the total amount spent by all other Benjamin supporters and three times the amount spent by Benjamin’s own committee. Benjamin won the seat by less than 50,000 votes out of 716,000 total votes cast.
On three separate occasions during the pre-appeal, appellate, and rehearing process, Mr. Caperton sought to have Justice Benjamin recuse himself from the proceedings because of Blankenship’s campaign involvement and large contributions. A public opinion poll indicated that over 67% of West Virginians doubted the newly elected member of the Court would be fair and impartial. Justice Benjamin rejected each recusal request, finding that Caperton had not presented objective evidence to show he had an actual bias.
The West Virginia Supreme Court of Appeals, in a 3-2 decision, reversed the jury’s verdict. Justice Benjamin’s refusal to recuse from the case was widely criticized, even by other members of the court. The dissent noted that there were genuine due process implications arising under federal law because of Justice Benjamin’s failure to recuse from the case. Four months later, after the petition for writ of certiorari was filed in the U.S. Supreme Court, Justice Benjamin wrote a concurring opinion in which he defended both the merits of the majority decision and his refusal to recuse from the case.
Campaign Contributions and the Need to Disqualify
The question presented before the U.S. Supreme Court was whether Justice Benjamin’s failure to recuse violated the Due Process Clause of the Fourteenth Amendment. Justice Anthony Kennedy, writing for the majority, disagreed with Justice Benjamin’s conclusion that the only basis for recusal was evidence of actual bias.
While noting that the Court was not questioning Justice Benjamin’s subjective finding of his own impartiality, the majority reasoned that, “…the difficulties of inquiring into actual bias, and the fact that the inquiry is often a private one, simply underscore the need for objective rules…the Due Process Clause has been implemented by objective standards that do not require proof of actual bias.” Rather, the majority concluded that the more appropriate standard 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.”
With respect to alleged bias arising from campaign contributions, the majority stressed that, “…not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge’s recusal.” The Court determined, however, that recusal is necessary 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.”
In making the determination whether a contributor’s influence was “significant and disproportionate,” the Court indicated that the inquiry centers on the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect of the contribution on the outcome of the election. Applying that standard, the majority determined that Blankenship’s efforts had significant and disproportionate influence. Blankenship’s contributions, which eclipsed all other supporters’ donations, were 300% more than spent by the Benjamin committee, and were $1 million more than spent by both campaign committees.
While million-dollar campaigns are unlikely in Indiana judicial elections, Massey provides useful guidance on a smaller scale. The Indiana Code of Judicial Conduct at Rule 4.4(B) gives significant direction on the issue: “A judicial candidate shall direct his or her campaign committee: (1) to solicit and accept only such campaign contributions as are reasonable” (emphasis added). Comment 3 to Rule 4.4 further advises that, “Although lawyers and others who might appear before a successful candidate for judicial office are permitted to make campaign contributions, the candidate should instruct his or her campaign committee to be especially cautious in connection with such contributions, so they do not create grounds for disqualification if the candidate is elected to judicial office. See Rule 2.11” Finally, Rule 2.11(A) has a catchall provision on disqualification: “A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned…” Substantial campaign contributions by a party or attorney to a proceeding, even if not in the million-dollar range, certainly could warrant a judge’s disqualification, especially if the donation is disproportionate to the size of other donations or is an unusually significant percentage of the total monies received.
Campaign Speech and the Constitution
Perhaps even more thought-provoking than the Court’s holding in Massey Coal is the language in the majority opinion that seems to endorse state judicial codes of conduct. To allay fears that the effect of the Massey Coal holding will range from “a flood of recusal motions” to “unnecessary interference with judicial elections,” the majority emphasized that the facts in Massey Coal represent an extraordinary situation.
The majority then pointed out that nearly every state has adopted some version of the ABA’s Model Code of Judicial Conduct, which includes a provision that, “…a judge shall avoid impropriety and the appearance of impropriety” and another which requires a judge to “disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.” ABA Annotated Model Code of Judicial Conduct, Canon 2 and Canon 3 E (1) (2004).
The Court acknowledged that:
These codes of conduct serve to maintain the integrity of the judiciary and the rule of law. The Conference of the Chief Justices has underscored that the codes are “[t]he principal safeguard against judicial campaign abuses” that threaten to imperil “public confidence in the fairness and integrity of the nation’s elected judges.” (Brief for Conference of Chief Justices as Amicus Curiae 4, 11)
The majority further recognized that, “…this is a vital state interest.” Quoting Justice Kennedy’s concurring opinion in Republican Party of Minn. V. White, 536 U.S. 765, 793 (2002), the majority observed:
Courts, in our system, elaborate principles of law in the course of resolving disputes. The power and the prerogative of a court to perform this function rest, in the end, upon the respect accorded to its judgments. The citizen’s respect for judgments depends in turn upon the issuing court’s absolute probity. Judicial integrity is, in consequence, a state interest of the highest order.
Because of this vital interest, the majority concluded that states may choose recusal standards more rigorous than due process requires.
It will be interesting to see whether the Supreme Court’s acknowledgment of a state’s vital interest in maintaining judicial neutrality and its seeming endorsement of state judicial codes will impact federal courts’ analysis of the constitutional question. We hope that the integrity of our judiciary comes out the winner as federal courts balance a judicial candidate’s interest in free speech with the state’s interest in preserving an impartial judiciary.