Recusal after Caperton v. Massey

The United States Supreme Court, in Caperton v. Massey, held that West Virginia Supremre Court Justice Benjamin should have recused himself from hearing the case because of financial support of his campaign of $3 million dollars by the president of the defendant company. Factually, the contributions were to an independent advocacy group which also collected money from others. Due to the "extreme" amount of contributions, the SCOTUS found there was an appearance of impropriety which rose to the level of a denial of due process.

The SCOTUS made it clear that there was no evidence of actual bias by Justice Benjamin. Thus, it is the "appearance of impropriety" or perception of unfairness that drove the ruling. The dissents, by Justice Roberts and Scalia, focused on the questions raised and unanswered by the ruling.

A couple of thoughts on this one. First, disclosure: Massey and its subsidiaries are clients of my law firm.

This opinion reverses one case based on what the Court calls "extreme" facts, particularly the amount of money contributed. Otherwise, it provides no guidance as to what amount of contribution, and by whom, rises to the level of requiring recusal. In this respect, the opinion is reminiscent of Jacobellis v. Ohio, 378 U.S. 184, 197 (1964), where Justice Stewart, describing hard core pornography stated "I shall not today attempt further to define the kinds of material I understand to be embraced . . . [b]ut I know it when I see it...." Future litigants, faced with the issue of contributions, will find little to answer the question of whether due process requires recusal from this opinion. As the dissents note, the opinion raises a host of questions it simply doesn't answer.

What this opinion means is unclear. The WV Court will now rehear the case sans Justice Benjamin. In the future, it appears that litigants will have to consider the issue of recusal in any case where there is a party or counsel who was a significant supporter of a justice in our partisan political elections. Do "bundled" donations - raised from many different people through the efforts of an organization (the dissents note the Trial Lawyers raised $2M in the same election) count toward the due process total? It seems to me that as long as there are partisan political elections, there will be supporters, donors and independent groups who get involved. For me, I agree with the ABA - merit selection with broad based commissions doing the selection in a transparent public way is better than the fistfights we and other states are seeing in our judicial elections. See, ABA Report, "An Independent Judiciary" (1997).
http://www.abanet.org/poladv/documents/indepenjud.pdf

Unfortunately, this is another black eye for the WV Justice system, ironically in a case where the Court finds no actual bias or prejudice on the part of Justice Benjamin.

Anyone interested in this decision should actually read it. Here is the link:

http://www.supremecourtus.gov/opinions/08pdf/08-22.pdf