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SCOTUS: Elected judges must step aside

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Elected judges must recuse themselves in cases where large campaign contributions from interested parties create an appearance of bias, the nation's highest court ruled today.

In a landmark decision that has been highly anticipated from the bench and bar, the Supreme Court of the United States issued its split decision today in Hugh M. Caperton, et al. v. A.T. Massey Coal Co., Inc., No. 08-22, which asked justices to reverse a $50 million verdict in favor of a coal-mining executive who'd contributed millions to an elected West Virginia Supreme Court justice's 2004 campaign.

With a 5-4 vote, the majority said that a judge who refused to recuse himself in a lawsuit filed against the company of the most generous supporter of his election deprived the other side of the constitutional right to a fair trial.

Caperton and other plaintiffs had accused major coal-mining company Massey Energy of breaking a coal-supply contract and driving them out of business. The trial court awarded Caperton $50 million, but then the state's Supreme Court twice reversed that jury award by 3-2 votes, which sparked the judicial ethics issue.

The company's chief executive, Don Blankenship, spent more than $3 million to help elect Justice Brent D. Benjamin to the state's Supreme Court of Appeals and defeat his incumbent opponent. That was more than 60 percent of the total spent on the judicial campaign, paid while Blankenship's company was preparing to appeal the verdict. On appeal, Justice Benjamin was the deciding vote in two 3-2 majorities to throw out the verdict against Massey after refusing to recuse himself from the case.

Since then, he's risen to the spot of chief justice of that court.

In urging the SCOTUS not to hear the case, Massey's lawyers said the 14th Amendment's Due Process Clause requires only the absence of an actual judicial conflict of interest, as when a judge has a stake in the outcome of a case. The company argued that the court had never adopted a "'looks bad' due process test" and therefore the verdict should stand because Justice Benjamin wasn't required to recuse himself.

However, that argument didn't persuade a majority of justices who found this case to be extraordinary and required the justice to step aside.

"Not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge's recusal, but this is an exceptional case," Justice Anthony Kennedy said in his opinion for the majority, reversing and remanding the case to the West Virginia court. "On these extreme facts the probability of actual bias rises to an unconstitutional level."

Relying on precedent that delved into how the Due Process Clause requires recusal in certain cases, justices also turned to the American Bar Association's model judicial conduct code that states, "A judge shall avoid impropriety and the appearance of impropriety." States are allowed to go further than the Due Process Clause in setting their own rules, and this case shows that the Constitution tests only the "outer boundaries of judicial disqualifications" and most won't reach this level, the majority determined.

Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter, and John Paul Stevens joined Justice Kennedy, while Chief Justice John Roberts wrote a dissent joined by Justices Samuel Alito, Antonin Scalia and Clarence Thomas.

"Unlike the established grounds for disqualification, a 'probability of bias' cannot be defined in any limited way," the chief justice wrote. "The end result will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case."

This ruling is expected to have widespread influence throughout the country, including in places like Indiana that are grappling with the debate about whether judicial elections or a merit-selection and retention system are better methods in choosing who's on the bench.

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  1. File under the Sociology of Hoosier Discipline ... “We will be answering the complaint in due course and defending against the commission’s allegations,” said Indianapolis attorney Don Lundberg, who’s representing Hudson in her disciplinary case. FOR THOSE WHO DO NOT KNOW ... Lundberg ran the statist attorney disciplinary machinery in Indy for decades, and is now the "go to guy" for those who can afford him .... the ultimate insider for the well-to-do and/or connected who find themselves in the crosshairs. It would appear that this former prosecutor knows how the game is played in Circle City ... and is sacrificing accordingly. See more on that here ... http://www.theindianalawyer.com/supreme-court-reprimands-attorney-for-falsifying-hours-worked/PARAMS/article/43757 Legal sociologists could have a field day here ... I wonder why such things are never studied? Is a sacrifice to the well connected former regulators a de facto bribe? Such questions, if probed, could bring about a more just world, a more equal playing field, less Stalinist governance. All of the things that our preambles tell us to value could be advanced if only sunshine reached into such dark worlds. As a great jurist once wrote: "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman." Other People's Money—and How Bankers Use It (1914). Ah, but I am certifiable, according to the Indiana authorities, according to the ISC it can be read, for believing such trite things and for advancing such unwanted thoughts. As a great albeit fictional and broken resistance leaders once wrote: "I am the dead." Winston Smith Let us all be dead to the idea of maintaining a patently unjust legal order.

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