On June 8, 2009, the Supreme Court, ruled that elected judges must recuse themselves in cases where a person donated large sums of money to the judge for reelection. In the case of Caperton v. A.T. Massey Coal Company, a coal executive litigant spent approximately $3 Million Dollars to elect a Judge in the West Virginia Supreme Court who was also hearing the case. After the very same judge voted twice to set aside the $50 Million dollar verdict against the coal company litigant, the opposing party argued that the judge should have recused himself from the case because of bias.
The Supreme Court concluded that there was a serious risk of 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 Supreme Court stated that the Due Process Clause is offended not only by actual bias, but also “circumstances in which experience teaches that the probability of actual bias on the part of the judge . . . is too high to be constitutionally tolerable.” Although “what degree or kind of interest is sufficient to disqualify a judge . . . cannot be defined with precision,” an objective test is applied to assess this risk. That test, the Court stressed, does not seek to consider whether the judge is actually biased; instead, it is based upon whether there is an unconstitutional “probability of actual bias.”
The Supreme Court left much unanswered and only gave a bare bones standard as to the inquiry for establishing how to determine if the campaign contribution gave rise to bias. The inquiry involves: a) the size of the contribution in relation to the total amount contributed to the campaign; b) the total amount spent in the campaign; and c) the effect of the contribution on the outcome of the election. Caperton.
There are so many problems with the Caperton decision that every time I read the opinion, I have to wonder whether the justices were “out to lunch.” The Supreme Court invited the states to figure out the threshold for when recusal was appropriate. Perhaps I am cynical and overanalyzing this case, but I cannot help to think that any inquiry would take on a life of its own, mandate discovery and require a full forensic accounting including an analysis of the sources of funds for election campaigns. Taken to a logical extreme, a litigant could avoid the Caperton Supreme Court decision by designating various anonymous persons to donate the sum total of $3 million dollars. Who would know except the litigant and possibly the judge?
My next question which remains unanswered by a reading of the decision is how the Supreme Court defines “person.” In other words, the Caperton decision alludes but does not hold that it may apply to attorneys litigating cases in front of judges when they have donated large sums of money towards that judge’s reelection. If so, does an inquiry require an accounting of only the attorney’s donation or everyone at a particular firm? Will the litigant suffer delay and cost because an inquiry will be based on his or her attorney’s donations? If the Caperton standard applies to attorney donations, then what is to prevent attorneys at a large law firm from donating a large amount of money to a particular judge’s campaign in an effort to force recusal and promote “judge shopping?” Such a strategy may occur if affordable and the stakes were high in a particular case.
The Supreme Court’s ruling in Caperton has the potential for abuse unless the states adopt clear standards. Even then the principle of the decision may be eviscerated. While many claim that the decision has little precedential value, many believe that the decision will open the floodgates to additional litigation and create an onset of bias claims. The dissent written by Justice Roberts is excellent and worth reading as it illustrates forty plus categories of unsettled questions posed by this case.
The Caperton decision has the potential for severe abuse. Not only may it cause an increase in unnecessary and costly litigation just to prove or disprove bias claims, but it may cause judges to systematically recuse themselves just to avoid the hassle. And really who would blame the judges for doing so. As Justice Roberts so aptly pointed out, would the judge accused of bias be allowed to defend the claim? For those of you that may easily dismiss this as just another inconsequential Supreme Court case, consider where you live and how much corruption has occurred in Illinois in just this year alone. Then ask whether you believe Illinois may be affected by Caperton.