Caperton v. Massey - A Step in the Right Direction Yet No Road Map
On June 8, 2009, the United States Supreme Court issued another 5-4 opinion. This time, the Court was policing its own. The case involved an appeals court judge in West Virginia who refused to recuse himself from an appeal of a $50M jury verdict. At the heart of the recusal request was a campaign contribution from the CEO of a party to the appeal who spent over $3M supporting the Judge’s campaign. The contribution amounted to more than 60% of the total amount spent in support of the Judge’s campaign. In an outcome that is only rivaled in the fiction of John Grisham, the Judge in question cast the tie breaking vote to overturn the verdict.
Justice Kennedy wrote for the majority, citing serious risk of actual bias and focusing on objective and disproportionate perceptions. He wrote “…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” there is a serious risk of bias. Per Justice Kennedy, ‘[t]he 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 elections, and the apparent effect such a contribution had on the outcome of ht election.”
Seems clear enough - the WV appeals judge should have recused himself. So why the 5-4 split on the High Court? While Kennedy’s words ring true and while we can probably all agree that there were some pretty egregious facts at play in this case, the majority’s opinion provides little guidance to the practitioner in states where judges are elected and not appointed. Justice Roberts dissented, writing “The Court’s new ‘rule’ provides no guidance to judges and litigants about when recusal will be constitutionally required. This will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be.”
From one who routinely cares about elections and makes contributions to judicial campaigns in the hope that the judges before whom one appears will be fair, intelligent, prepared jurists, I’m a bit perplexed. When the mere allegation of impropriety can cause the transfer of a case or a significant delay while the issue is fought out, does this merely increase a party’s way of judge shopping?
Most commentators have heralded and praised the decision. They focus on the extraordinary facts - you can’t make this stuff up! I just worry about my clients and what this means for them if I make a contribution. Perhaps someone will print the road map soon.
