U.S. Supreme Court Rules on 'Buying' Courts

'Significant' Donation Triggers Recusal Obligation, Ruling Says
The New York Law Journal by Tony Mauro - May 9, 2009

WASHINGTON, D.C. - In a landmark ruling that could affect state judicial elections nationwide, the U.S. Supreme Court yesterday said that due process can require a state judge to recuse when a party in a case before him or her has had a "significant or disproportionate" influence on placing the judge on the court through an outsized campaign donation. The 5-4 decision in Caperton v. Massey Coal Co., 08-22, introduces for the first time a constitutional standard into the debate over the influence of big money on judicial elections, which supporters said was a victory for the rule of law. Some reformers even expressed hope yesterday that the opinion would spur states to rethink judicial elections altogether and move to merit selection. But critics said the ruling sets a vague standard that will only trigger a flood of meritless recusal motions and sully the reputation of the judiciary, not enhance it. Justice Anthony Kennedy, writing for the majority, said, "Due process requires an objective inquiry into whether the contributor's influence on the election under all the circumstances 'would offer a possible temptation to the average . . . judge to . . . lead him not to hold the balance, nice, clear and true.'" The "nice, clear and true" formulation comes from one of the few Court precedents on recusal, the 1927 case Tumey v. Ohio, which said judges must recuse if they have a direct financial interest in the outcome of a case.

Justice Kennedy emphasized his ruling affects only extreme cases like the West Virginia case before him. In Caperton, Don Blankenship, chief executive officer of the coal company, spent $3 million to help elect Brent Benjamin to the West Virginia Supreme Court of Appeals, while the appeal of a $50 million punitive damages award his company lost was on its way to that court.  Judge Benjamin was elected, refused repeated calls for him to recuse, and cast the deciding vote in favor of his benefactor's company. Author John Grisham has said he had the West Virginia case in mind when he wrote the 2008 thriller "The Appeal." All those factors - including the large size of the donation and the pendency of Mr. Blankenship's company's appeal while the election campaign was under way - made it "an extraordinary situation where the Constitution requires recusal," Justice Kennedy wrote. "The parties point to no other instance involving judicial campaign contributions that presents a potential for bias comparable to the circumstances in this case."  Justice Kennedy also stressed that campaign contributions do not inherently create a probability of bias. As a result, he said that even in the wake of the Caperton decision's new constitutional line, "Most disputes over disqualification will be resolved without resort to the Constitution," instead implicating only state laws and judicial codes of conduct.  But dissenters led by Chief Justice John Roberts Jr. were not so sure. They said the majority's standard could lead to the filing of "Caperton motions" alleging judicial bias, "however groundless those charges may be."  Chief Justice Roberts added, "The end result will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case."

40 Questions

Joined by Justices Antonin Scalia, Clarence Thomas and Samuel Alito Jr., the chief justice went on to list 40 questions the majority opinion does not answer about how the new standard will be applied.  "How much money is too much money?" Justice Roberts wrote. "How long does the probability of bias last?"  He also wondered whether large contributions from an affected trade association or a racial or ethnic group, rather than an actual party in a case, would trigger the Caperton rule. And if a large contribution came from a lawyer, rather than a party, Justice Roberts wrote, "must the judge recuse in every case involving that attorney?"

James Sample of the Brennan Center for Justice at New York University School of Law, which filed an amicus brief in the case, celebrated yesterday's ruling as "a narrow decision that is a huge victory for the rule of law," but nonetheless said Chief Justice Roberts' questions "are well-taken and will be addressed by state court judges" without resort to the U.S. Constitution except in very rare cases. "This was the ultimate scenario." H. Thomas Wells Jr., president of the American Bar Association, applauded the ruling and announced that the group will develop "a series of guidelines for courts to assess whether contributions to judges' campaigns implicate the due process rights of parties appearing before them. This evaluative process is one way to restore the public confidence in our courts so critical to preserving our government of laws."  Former Colorado Supreme Court Justice Rebecca Kourlis of the University of Denver's Institute for the Advancement of the American Legal System said she hopes the ruling will "create some momentum" for states to consider scrapping judicial elections and moving toward merit selection. "Election states may begin to think, 'we can do better than this,'" she said. Theodore Olson of Gibson, Dunn & Crutcher, who argued in the case on behalf of the Harman Mining Corp. that won the damages award from Massey, could not be reached for comment. But David Fawcett of Buchanan Ingersoll & Rooney, who also represented Harman, said the decision was a welcome victory.

"Everyone has a right to a fair trial and an unbiased judge under the Constitution," said Mr. Fawcett. "The idea that a corporate CEO could spend millions to influence the result in a case was a broadside attack on our system of justice. " But Justice Scalia, writing a separate dissent, said not every wrong rises to a constitutional level. "The Court today continues its quixotic quest to right all wrongs and repair all imperfections through the Constitution," he wrote. Justice Scalia said the Court was doing more harm than good by expanding "our constitutional mandate in a manner ungoverned by any discernible rule." Retiring Justice David Souter was part of the narrow majority.  The liberal Center for Constitutional Accountability quoted from a 1996 speech in which Judge Sonia Sotomayor of the U.S. Court of Appeals for the Second Circuit, nominated to replace Justice Souter, appeared to be in tune with the majority by criticizing judicial campaign contributions.  "We would never condone private gifts to judges about to decide a case implicating the gift-givers' interests," she said. But "our system of election financing permits extensive private, including corporate, financing of candidates' campaigns, raising again and again the question what the difference is between contributions and bribes."

New York Recusal Rules

Members of New York's top court, the Court of Appeals, are appointed rather than elected but judges of other courts run for office and accept campaign contributions; many of the donations come from attorneys who appear before the judges. According to the 2006 final report of the "Commission to Promote Public Confidence in Judicial Elections" appointed by then-Chief Judge Judith S. Kaye, "the current campaign finance system for judicial elections in New York can raise questions about the impartiality so critical to public confidence in the Judiciary." The commission in a 2003 interim report recommended that the disqualification of a judge be required where a party or its attorney has made campaign contributions to the judge of more than $500 during the preceding five years. The proposal, which was opposed by many bar groups, was not adopted (NYLJ, Dec. 4, 2003; Feb. 13, 2004). Current rules provide that a judge "shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned," including instances where the judge has a "personal bias or prejudice concerning a party." There is no specific reference to campaign contributions. Victor A. Kovner, a partner at Davis Wright Tremaine and chairman of the Fund for Modern Courts, one of 28 organizations that jointly filed an amicus brief on behalf of Mr. Caperton called the Supreme Court ruling a "very important victory."  Mr. Kovner said that he did not believe that the "outrageous events" that occurred in West Virginia could take place in New York. However, Mr. Kovner said recent cases highlight the need for a recusal rule in New York related to campaign contributions.

For example, Manhattan Surrogate-Elect Nora S. Anderson, has been accused by the Manhattan District Attorney's Office of circumventing campaign contribution limits by falsely reporting the source of $250,000 pumped into her campaign, and the Commission on Judicial Conduct has recommended that Supreme Court Justice Joseph S. Alessandro and his brother, Bronx Civil Court Judge Francis M. Alessandro, be removed from office for failing to repay on time a $250,000 loan made to one of Joseph Alessandro's campaigns (NYLJ, Feb. 24). Both judges co-signed the loan. Ms. Anderson, Justice Alessandro and Judge Alessandro all have denied any wrongdoing.  Mr. Kovner said the amount of campaign contributions that triggers recusal in New York "should be considerably less" than the maximum amount individuals can donate. Two judges interviewed yesterday expressed skepticism about any such rule. The "problem in New York is you don't know who contributed money to your campaign," said Brooklyn Supreme Court Justice Arthur M. Schack. "I know certain lawyers gave to me. But I don't know who gave what, so how do I know when I have to recuse [myself]?" he asked. As a pragmatic matter, "the mother's milk of politics is money. You need money to get your message across to voters," Justice Schack added. "Or suppose a lawyer doesn't like a particular judge?" Justice Schack asked. Referring to the 2003 proposal, he said lawyers could donate $500 to avoid appearing before a particular judge. "In New York State, you are prohibited from knowing your contributors. So as a practical matter, judges would not be able to ascertain whether an attorney appearing before them made a contribution to their campaign," said Brooklyn Supreme Court Justice Marsha L. Steinhardt.

Tony Mauro covers the U.S. Supreme Court for Incisive Media, the Law Journal's parent. He can be reached at Tony.Mauro@incisivemedia.com. Noeleen G. Walder contributed to this article. Noeleen.Walder@incisivemedia.com