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Legacy Content / RULES OF THE GAME

A Win For Fairer Courts

The Caperton Ruling Will Establish Clearer Recusal Rules For Judges Who May Face Conflicts Of Interest

June 15, 2009

The Supreme Court's landmark Caperton v. A.T. Massey Coal Co. ruling has prompted sweeping predictions on both sides of the debate over judges and campaign money.

Some see the high court's June 8 ruling as a signal that states should reconsider the system of installing judges through election campaigns, which have become increasingly costly and hard-fought. Thirty-nine states elect at least some judges.

"I hope this decision will spur states to focus on whether our 19th-century method of selecting judges works well in the 21st century," said Thomas Phillips, the former chief justice of Texas and a partner at Baker Botts, in a recent interview with Legal Times. Phillips co-authored a brief in the Caperton v. Massey case on behalf of the Conference of Chief Justices.


On the flip side, critics of the 5-4 ruling -- including Chief Justice John Roberts, who wrote the dissenting opinion -- predict that it will unleash a wave of litigation and actually undermine the credibility of the courts. Roberts' dissent warns that the ruling creates an ambiguous standard that states will find difficult to enforce.

State supreme courts are well on their way to coming up with workable recusal rules, say legal experts who track the issue.

In fact, both scenarios miss the mark. The ruling's more likely outcome is that state supreme courts will establish and enforce clearer recusal rules for judges who may face conflicts of interest, guidelines that are long overdue.

The circumstances of the Caperton v. Massey case were unusual, but they represented an extreme example of a problem that's been building over the past decade. As the cost of judicial elections has risen, judges in Illinois, Ohio and other states have faced criticism for failing to withdraw from cases involving individuals who bankrolled their campaigns.

At issue in Caperton was whether West Virginia Supreme Court judge Brent Benjamin should have disqualified himself from a case involving one of his top campaign backers, coal company owner Don Blankenship. Blankenship had spent $3 million, most of it independently, to help elect Benjamin. The judge had then twice cast the deciding vote to reject a $50 million case against Blankenship's company.

The Constitution's due-process clause required Benjamin to recuse himself, the high court ruled. The majority opinion, written by Justice Anthony Kennedy, draws a line establishing that recusal is required when campaign spending exerts "disproportionate influence" in a case that is "pending or imminent."

"The ruling is critically important for those of us who have been out there worrying about judicial impartiality and how we can preserve it," said Charles G. Geyh, a law professor at Indiana University who directs the American Bar Association's Judicial Disqualification Project. The ruling "sends a message to state supreme courts" to come up with clear and enforceable guidelines for judicial recusal, he added.

To Roberts and other critics of the ruling, this looks like an impossible task. His dissent criticized the absence of "clear, workable guidance for future cases" and posed 40 hypothetical questions that he argued state officials would have to answer. These included: "How much money is too much money?" and "How do we determine whether a given expenditure is disproportionate?"

In fact, state supreme courts are well on their way to coming up with workable recusal rules, say legal experts who track the issue. "There's no question that a number of state courts will be moving," said Roy A. Schotland, a recently retired Georgetown University law professor. "I would expect action relatively soon."

State courts could take several possible tacks. One would be to follow the ABA's longstanding recommendation that a judge disqualify himself when he has received campaign contributions over a designated amount. (The amount would vary, depending on the state and the circumstances.)

That approach may prove unpopular, however. It's been part of the ABA's Model Code of Judicial Conduct since 1999, and states have essentially ignored it. Moreover, noted Schotland, it addresses only direct campaign contributions -- not the independent expenditures that increasingly pour the big money into judicial elections.

A more workable approach may be to bring in a third party, such as a panel of retired judges, when a motion to disqualify a judge is made, as outlined in draft recommendations of the ABA Judicial Disqualification Project. The ABA will be considering and acting on those recommendations in the coming months.

"It is questionable practice to rely too heavily on judges to evaluate their own disqualification," noted Geyh.

A variety of groups, including the Justice at Stake coalition and the Brennan Center for Justice at New York University's School of Law, have endorsed the notion that judges should no longer be the only ones to decide how to handle recusal motions directed at them. Interestingly, however, these advocates stop short of arguing that judicial elections should be rejected altogether.

"Voters are incredibly reluctant to give up their right to vote for any office, judges included," said Brennan Center counsel James Sample. In the wake of Caperton v. Massey, judges will continue to be elected, and to receive campaign contributions -- but states will face pressure to step in and forestall egregious conflicts of interest.

"Several state supreme courts will be looking very seriously at revising their recusal practices," predicted Sample. "I think it's a resounding victory for a basic, fundamental principle: the right to a fair hearing."

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