High Court Says Judge Should Have Stepped Aside

Correction June 9, 2009

An earlier version of this story incorrectly stated that the chief executive donated $3 million to the judge's re-election campaign. We regret the error.

The Supreme Court has ruled that a West Virginia judge should have stepped aside from a case involving one of his big campaign contributors. The chief executive of a company involved in a lawsuit had given $3 million to a group formed to help defeat the judge's election opponent.

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The U.S. Supreme Court has laid down a new constitutional marker on when judges must disqualify themselves. The court has ruled that judges who are elected are constitutionally barred from participating cases involving donors who've given very large sums to their campaigns.

NPR legal affairs correspondent Nina Totenberg has more.

NINA TOTENBERG: For weeks, Hugh Caperton has been clicking onto the Supreme Court's Web site every decision day to see if there's a ruling in his case. Yesterday, suddenly, his case was there, and improbably, he had won. By a five-to-four vote, the U.S. Supreme Court for the first time ruled that under the Constitution, disproportionate campaign spending by a litigant may require the judge who benefited from the campaign money to disqualify himself.

Mr. HUGH CAPERTON: We jumped up and down and cried, and we're just so excited. We're really, really happy.

TOTENBERG: The facts of Caperton's case mirror those in John Grisham's novel "The Appeal." Caperton, a small coal operator in West Virginia, sued the giant Massey Coal Company, alleging that Massey used illegal tactics to force him out of business. A jury agreed and awarded him $50 million in damages. While the case was on appeal, though, Massey's CEO spent $3 million to defeat an incumbent state Supreme Court justice. The CEO's candidate won, and when the appeal was before the state Supreme Court, the newly-elected justice refused three times to recuse himself and then cast the deciding vote in a three-to-two decision to throw out the $50 million jury award.

Caperton then appealed to the U.S. Supreme Court, contending that he'd been denied his constitutional right to due process of law before a fair and impartial tribunal. Yesterday, the Supreme Court agreed. Writing for the five-justice majority, Justice Anthony Kennedy noted that the facts of this case are exceptional - indeed, that the Massey CEO spent more money on this judicial election than all the other contributors combined.

In such a case, said Justice Kennedy, we conclude there's a serious risk of actual bias. The temptations to shade are inescapable and there are legitimate fears that, in effect, a litigant is choosing his own judge.

In dissent, Justice Antonin Scalia accused the majority of a quixotic quest to right all wrongs, and Chief John Roberts said the decision would open up the courts to a flood of new litigation that would only diminish public confidence in the courts.

But if the court was closely divided, outside interest groups were not, by and large. As the cost of judicial campaigns have skyrocketed into the tens of millions in recent years, both sides in the court wars have become increasingly concerned about having a well qualified and independent judiciary, and both the trial lawyers and business groups had urged the Supreme Court to establish some bottom lines on recusal.

Bert Brandenburg, executive director of the nonpartisan group Justice at Stake, said yesterday's ruling was a wakeup call to the states.

Mr. BERT BRANDENBURG (Executive Director, Justice at Stake): It signals that the U.S. Supreme Court is keeping an eye on judicial elections and that they won't be permitted to run on autopilot. The Constitution has a role in guaranteeing due process for litigants.

TOTENBERG: Brandenburg suggested that many states had been waiting to see what the Supreme Court would do in this case before taking action. Former Texas Chief Justice Tom Phillips, who filed a brief on behalf of the Conference of Chief Justices, agrees.

Mr. TOM PHILLIPS (Former Chief Justice, Texas): There are a number of things that states can do that would alleviate the problem of a judge sitting when the judge shouldn't.

TOTENBERG: The state chief justices were pleased with yesterday's ruling, he said, because it drew a line in the sand and allowed state flexibility. The fact is that the public likes judicial elections, even if they are increasingly nasty, expensive and costly in terms of who's willing to stand for election. Indeed, in all but 11 states, some or all of the judges are elected. Again, Bert Brandenburg.

Mr. BRANDENBURG: Every state that elects judges would benefit from using this as a deep breath moment to take a look at how their judges are selected and whether they could better insulate the judges who are elected from interest group pressures.

TOTENBERG: Most states actually have adopted some form of the American Bar Association's model Code of Judicial Conduct. The problem is that the part of the code that recommends hard and fast recusal rules for campaign contributors at a certain level have not been adopted, and in many places, the code has few enforcement teeth.

In West Virginia, for example, as elsewhere, the code instructs judges to disqualify themselves in any proceeding in which the judge's impartiality might reasonably be questioned. That did not stop the judge in this case from ruling on a matter that benefited his largest campaign benefactor, a set of facts so extreme that the Supreme Court said it rose to the level of being unconstitutional.

Nina Totenberg, NPR News, Washington.

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Court Rules Judges Must Avoid Appearance Of Bias

The Supreme Court ruled Monday that elected judges must step aside in cases involving large campaign contributions from interested parties to avoid the appearance of bias, a decision that could have implications in 39 states where voters choose judges.

In a 5-4 vote, the court decided that West Virginia Supreme Court Justice Brent Benjamin deprived Harman Mining Co. of the right to a fair trial because he participated in a case involving a major contributor to his campaign.

Harman executives had complained that there was the appearance of bias because the chief executive officer of Massey Energy Co. contributed $3 million to Benjamin's election campaign at the same time Massey was appealing a multimillion-dollar jury verdict — now totaling $82.7 million — against Harman.

Benjamin refused to recuse himself and voted with the 3-2 majority to overturn the verdict. Harman appealed to the Supreme Court.

The high court's more liberal justices sided with Harman.

Justice Anthony Kennedy labeled the facts of the case "extreme" because the $3 million that Massey CEO Don Blankenship contributed to unseat the court's incumbent and support Benjamin's campaign had a "significant and disproportionate influence" in putting Benjamin on the case.

"Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when — without the consent of the other parties — a man chooses the judge in his own cause," Kennedy wrote for the majority.

But he also noted that not every campaign contribution requires a judge's recusal.

The nonpartisan group Justice at Stake hailed the decision as a victory.

"The Supreme Court said, 'Enough is enough.' Today's ruling is a critical first step. But states that elect judges must get to work now, to keep campaign cash out of our courts of law," Executive Director Bert Brandenburg said in a statement on the group's Web site.

Justice at Stake, which tracks campaign spending in judicial elections, says that at least some judges are elected in 39 states, and that many allow the individual judge to decide if he or she should be recused from a case. It also says judicial candidates have raised more than $168 million since 2000.

"Special-interest spending on judicial elections has soared since the 1990s, leading some to say justice is now 'for sale,' " the group said in a review of the West Virginia case.

The Supreme Court also issued decisions in several other cases:

— The justices ruled unanimously that the Iraqi government cannot be sued for actions that took place under former Iraqi dictator Saddam Hussein. Foreign governments are immune from lawsuits in U.S. courts, but federal law strips that protection from countries that support terrorism. Under Saddam, Iraq was considered a state sponsor of terrorism.

But the court agreed with Iraq's assertion that the U.S.-led invasion that deposed Saddam and a federal law that was enacted in 2003 restored the country's immunity to lawsuits.

— The court turned down a challenge to the Pentagon policy forbidding gays and lesbians from serving openly in the military, granting a request by the Obama administration to maintain the Clinton-era "don't ask, don't tell" directive.

The justices refused to hear an appeal from former Army Capt. James Pietrangelo II, who was dismissed under the military policy. A federal appeals court in Boston earlier threw out a lawsuit filed by Pietrangelo and 11 other veterans, but Pietrangelo asked the high court to rule that the policy is unconstitutional.

— The court refused to hear an appeal from two former top executives of Tyco International that challenges their convictions for fraud and larceny involving more than $100 million in bonuses. The justices' action ends the effort by Tyco's former CEO L. Dennis Kozlowski and former CFO Mark Swartz to overturn their convictions. They are serving prison terms of between eight and 25 years for taking unauthorized pay.

The former executives maintained they were denied access to certain documents that would have helped persuade the jury of their innocence.

From NPR staff and wire reports

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