Caperton v. A.T. Massey Coal Co.: the objective standard for judicial recusal.

• Author: Todt, Jonathan H.

On June 8, 2009, the Supreme Court ruled on the fascinating legal saga of Caperton v. A.T. Massey Coal Co. (1) The particular--and seemingly outrageous--facts of the case garnered a tremendous amount of national attention (2) and even inspired a John Grisham novel. (3) At issue in the case was the failure of Justice Brent Benjamin of the West Virginia Supreme Court of Appeals to recuse himself from hearing an appeal involving a fifty million dollar judgment against the company of his largest campaign contributor--Don Blankenship, the chairman, CEO, and President of A.T. Massey Coal. Blankenship spent roughly three million dollars of his own personal wealth during the election--an incredibly large amount for any state election, and for West Virginia in particular--to help elect Benjamin to the bench in place of Justice Warren McGraw during the 2004 elections. (4) Naturally, the plaintiff moved to disqualify Justice Benjamin based on the apparent conflict of interest and probable bias caused by Blankenship's campaign involvement. (5) Nonetheless, Justice Benjamin declined to remove himself from the case on three separate occasions and was the deciding vote in a 3-2 reversal of the fifty million dollar trial verdict against Massey. (6) On November 14, 2008, the United States Supreme Court granted certiorari (7) to address the question of whether the Due Process Clause of the Fourteenth Amendment was violated when Justice Benjamin denied a recusal motion. (8)

Part I of this Note will examine the Caperton case and the new recusal rule based on "probability of bias," which was derived from the case. Part II will explore and scrutinize the concerns expressed by Chief Justice Roberts in his dissent--that the majority's holding in this case would lead to an overwhelming number and variety of "Caperton motions" from parties asserting that the judge in their particular case is biased, primarily because the majority did not provide sufficient guidelines through which to examine future probability of bias claims. (9) While only a year has passed since the Court's ruling in the case, is there any evidence to suggest that state legal systems are struggling with this recusal standard? Was the Chief Justice's use of the old legal aphorism that "[h]ard cases make bad law" justified in this case? (10) Part II will also address the Chief Justice's second concern-that this decision will bring the judicial system into unnecessary disrepute because constant attacks on judicial impartiality will erode public confidence in the system. (11) I argue that lower courts dealing with this new probability of bias standard neither struggle with the content nor overall quantity of so-called "Caperton motions." The use of the probability of bias standard is rare and will neither overwhelm courts nor bring undue disrepute to the bench. (12)

1. CAPERTON V. A.T. MASSEY COAL CO.

   1. Background

      This matter originated in 2002, when a West Virginia jury delivered a verdict against A.T. Massey Coal Co. ("Massey") for fifty million dollars in compensatory and punitive damages for fraudulent misrepresentation, concealment, and tortious interference with existing contractual relationships. (13) Hugh Caperton charged Massey with various efforts to intentionally ruin his business--also a coal operation--through fraudulent dealings and by cutting off existing contractual relations with the petitioners such that Caperton's business would be forced into bankruptcy. (14) Over the next few years, the trial court denied Massey's post-trial motions challenging the jury verdict and damages and requesting judgment as a matter of law. (15) Prior to Massey's appeal to the West Virginia Supreme Court of Appeals, however, were the 2004 state judicial elections, during which Don Blankenship--the chairman, CEO, and president of Massey--sought to replace Justice Warren McGraw with a relatively unknown Charleston lawyer named Brent Benjamin. (16)

      Blankenship contributed roughly three million dollars to Benjamin's campaign. (17) First, Blankenship contributed $1,000 directly to Benjamin's campaign committee--the statutory maximum allowed. (18) In addition, he donated $2.5 million to the [section] 527 political organization named "And For The Sake Of The Kids." (19) Blankenship created this organization after the trial verdict against Massey for the sole purpose of unseating Justice McGraw and electing Benjamin in his place. (20) This money was primarily used to finance campaign advertisements, many of which accused Justice McGraw of being soft on crime. (21) Finally, Blankenship also spent over $500,000 on independent campaign expenditures, such as direct mailings and television advertisements, seeking support for Benjamin in the election. (22)

      These contributions were "more than the total spent by all other Benjamin supporters and three times the amount spent by Benjamin's own committee." (23) In fact, the contributions by Blankenship to "And For The Sake Of The Kids" were the largest by any one person or group to a [section] 527 organization in any state judicial race in 2004. (24) The donations by Blankenship had their intended effect, as Benjamin beat McGraw by a tally of 382,036 votes (53.3%) to 334,301 votes (46.7%). (25)

      In October 2005, prior to Massey filing its appeal with the West Virginia Supreme Court of Appeals, Caperton moved to disqualify Benjamin under the West Virginia Code of Judicial Conduct (26) and the Due Process Clause of the Fourteenth Amendment. (27) Yet Benjamin denied this motion and, after examining his own supposed biases, held there was "'no objective information ... to show that this Justice has a bias for or against any litigant, that this Justice has prejudged the matters which comprise this litigation, or that this Justice will be anything but fair and impartial.'" (28) Soon thereafter, Massey filed its appeal on the fifty million dollar jury verdict, which the court reversed by a 3-2 margin in November 2007. (29) Justice Benjamin was in the majority. (30)

      Caperton sought a rehearing, and the parties collectively petitioned for the disqualification of Benjamin and two other justices who ruled on the case. Caperton successfully moved for the recusal of Justice Maynard, who was photographed vacationing with Blankenship in the French Riviera. (31) In addition, Massey successfully moved for the recusal of Justice Starcher, who had been publicly critical of the role Blankenship had played in the 2004 election of Justice Benjamin. (32) However, Justice Benjamin again refused to recuse himself from the matter. (33) During the rehearing--and with two lower court judges replacing the other disqualified justices--the court again reversed by a 3-2 margin with Justice Benjamin in the majority. (34) For a third time Caperton moved for disqualification, and for a third time Benjamin denied this request. (35)

      Justice Benjamin wrote a concurring opinion to this decision, first reviewing his agreement with the majority on the merits of the case, (36) then writing a lengthy defense of his refusal to recuse himself. (37) Justice Benjamin rejected the argument of the dissenting opinion that apparent conflicts of interest can implicate due process considerations. (38) Rather, Benjamin wrote that actual justice, rather than apparent justice, should be the standard by which recusal is measured. (39) Furthermore, examining his own bias and prejudged opinions on the matter, Benjamin determined that "I have no pecuniary interest in the outcome of this matter.... I have no conflicting dual role in this matter.... I have no personal involvement with nor harbor any personal antipathy toward any party or counsel herein." (40) It was upon the question of whether due process was implicated in Benjamin's failure to recuse himself that the Supreme Court granted certiorari. (41)

   2. The Supreme Court Develops Expanded Due Process Requirement for Judicial Recusal Based on the Probability of Bias

      In a 5-4 decision, the Supreme Court reversed the West Virginia Supreme Court of Appeals decision and held that under "these extreme facts the probability of actual bias [rose] to an unconstitutional level" and required Justice Benjamin to recuse himself despite his subjective assertions that no actual bias was involved. (42) Writing for the majority, Justice Kennedy held that any subjective examination by a judge is merely one step in the process for the examination of bias--"objective standards may also require recusal whether or not actual bias exists or can be proved." (43)

      Traditionally, the Due Process Clause was held to incorporate the common law rule that recusal is required when a judge has "'a direct, personal, substantial, pecuniary interest'" in a case. (44) This rule was seen to "reflect[ ] the maxim that '[n]o man is allowed to be a judge in his own cause; because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity." (45) This standard "demarks only the outer boundaries of judicial disqualifications" (46) and due to various state codes of judicial conduct, "most disputes over disqualification will be resolved without resort to the Constitution." (47)) However, two situations have been recognized by the Court where recusal is required as an objective matter, absent any subjective examination by the judge of his or her own bias.

      The first situation previously recognized by the Court involves a judge with an indirect pecuniary interest in the case considered less than the "direct, personal, substantial" interest required for recusal at common law. (48) This standard emerged in Tumey v. Ohio, (49) where a village mayor also sat as a judge, without a jury, to try those accused of violating certain Prohibition-era alcohol laws. (50) The mayor/judge received personal compensation for performing these judicial duties in the form of a percentage of the fines handed down for the infractions. Thus, because no fines were levied...