Caperton v. Massey Coal Co.: Floodgates Opening or Stating the Obvious?
LACBA Update, September 2009
By Clare Pastore, Professor of the Practice of Law, USC Gould School of Law. Pastore teaches professional responsibility and is a member of the LACBA Professional Responsibility and Ethics Committee. The views expressed in this article are her own.
On June 8, the U.S. Supreme Court issued its ruling in Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252 (2009), holding that the federal due process clause can require that a judge who has been the beneficiary of substantial campaign-related financial contributions from a litigant recuse himself from that litigant’s case. The facts are nothing if not colorful.1 A coal company president, Don Blankenship, whose appeal of a $50 million adverse verdict for fraudulent misrepresentation was soon to go to the state’s highest court, spent millions to defeat a justice on that court and replace him with a challenger, Brent Benjamin.2 Shortly afterward, the newly minted Justice Benjamin, after denying a recusal motion, joined a 3-2 majority reversing the verdict against Blankenship’s company. Meanwhile, photos surfaced of a second justice who had voted for the reversal vacationing with Blankenship on the Riviera while the case was pending. After the ensuing rehearing of the case and another round of recusal motions, the court issued a second 3-2 decision reversing the verdict, which had by then risen to more than $75 million with interest.3
Caperton petitioned for certiorari at the U.S. Supreme Court, arguing that due process was violated when a judge whose election was so heavily financed by a litigant decides a case involving that litigant. By a vote of 5-4, the Court agreed. Justice Anthony Kennedy’s opinion held that due process requires recusal when there is a serious risk of actual bias or prejudgment, and that such a risk exists “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.”4 Relevant to this determination are “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.”
Chief Justice John Roberts authored a vigorous dissent, joined by Justices Antonin Scalia (who also wrote separately), Clarence Thomas, and Samuel Alito, complaining that the “probability of bias” standard the majority adopted “provides no guidance to judges and litigants about when recusal will be constitutionally required.” More interesting than the majority and dissent’s differing predictions, however, is their views of the attitudes of the public. While the majority--consistent with the results of political science research and public opinion polls5--clearly fears the effect that the perception of bias may have on public respect for the courts, Justice Scalia’s dissent sees danger not from allowing Justice Benjamin to rule in favor of his largest financial backer but from opening the door to recusal litigation. Justice Scalia states, “What above all else is eroding public confidence in the Nation’s judicial system is the perception that litigation is just a game, that the party with the most resourceful lawyer can play it to win....” Surely, however, if the public deplores the notion that the party with the most resourceful lawyer always wins, it must deplore at least as much the idea that the party with the most money to spend on judicial elections should win.
Despite the sound and fury, it remains to be seen whether Caperton will actually matter much on the ground to lawyers or lower courts. Virtually every state already specifies in its code of judicial conduct or other statutes that when an objective observer would reasonably doubt the impartiality of a judge, recusal is required. California’s provision to that effect is Code of Civil Procedure Section 170.1(a)(6)(A)(iii). The only reported California case dealing with a recusal motion related to judicial elections, People v. Coffman, 34 Cal. 4th 1, 50 (2005), already suggested that a due process claim is available to challenge the denial of a recusal motion.
Moreover, Justice Kennedy’s opinion mentions over and over the “extreme facts” and “extraordinary situation” before the Court in Caperton. Even some who favor the Supreme Court’s decision fear that these words will drastically limit the number of cases in which a due process claim over failure to recuse will be successful. In the end, it seems unlikely that the Caperton decision actually will provoke new recusal motions, much less guarantee their success, where they wouldn’t have occurred before, even if it “federalizes” the question in a new way.
1 Indeed, author John Grisham has stated that Caperton was a principal inspiration for his recent novel, The Appeal, in which a chemical company owner escapes a $41 million Mississippi jury judgment by electing a friendly judge to the state supreme court. See http://www.justiceatstake.org/node/113 for a clip of Grisham talking about the novel and its connection to the Caperton case.
2 Blankenship gave the $1000 statutory maximum contribution to Benjamin’s campaign, $2.5 million more to an independent political action committee dedicated to electing Benjamin and defeating the incumbent, and spent an additional $500,000 on independent expenditures supporting Benjamin. His contributions apparently exceeded not only those of all other supporters of the candidate combined but were also over $1 million more than the combined campaign committees of both the incumbent and the challenger. Caperton, 129 S. Ct. at 2265.
3 Justice Elliott Maynard, who had vacationed with Blankenship on the Riviera, granted Caperton’s second motion to recuse him. Caperton, 129 S. Ct. at 2258. Maynard later lost a primary challenge and was not reelected.
4 Caperton, 129 S. Ct. at 2255.
5 See, e.g., Marcia Coyle, “Study finds strong relationship between campaign contributions and decisions by state Supreme Court judges,” National Law Journal, Feb. 20, 2009, available at http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202428441399&slreturn=1. See also Nyden, “Elected judges: Americans doubt impartiality claims, poll finds,” Charleston Gazette, Feb. 23, 2009, available at http://wvgazette.com.