Feb. 9, 2009
Chief Justices Organization Requests U.S. Supreme Court to Set Standards for Recusal
Brief Supports Neither Party, Asks for Guidance
By Tony Rutherford
Huntingtonnews.net Reporter
Washington, DC (HNN) -- The campaign contributions provided to the campaign of West Virginia Justice Brent Benjamin by an entity apparently on behalf of Massey Coal will be heard by the U.S. Supreme Court Tuesday, March 3.
The case of campaign contributions impacting the fairness of a judge sitting on a case originating from the corporate contributor has drawn 16 “friend of the court” briefs. These organization (or “friends”) believe they have a stake in the outcome of the high court’s decision and have been granted permission to argue their point(s) to the nine justices. Ten of the briefs support the contention that Justice Benjamin should have stepped aside. Four support Benjamin and two neither party.
Since the U.S. Supreme Court receives thousands of requests for review, the justice select between 1 and 1.5 percent of the petitions, which must implicate a federal question and have the potential for impacting many states.
Rather than simply argue alleged errors by lower courts, the petition to the U.S. Supreme Court for review must come in the form of a question. In addition, since the solicitor general represents the United States in cases before the court, his or her opinion can sway the court to take a case.
Legally styled Caperton v. A.T. Massey Coal Co. (Docket 08-22), a former solicitor general now in private practice represents the Caperton interests.
For the record, the question before the nation’s highest court is:
Justice Brent Benjamin of the Supreme Court of Appeals of West Virginia refused to recuse himself from the appeal of the $50 million jury verdict in this case, even though the CEO of the lead defendant spent $3 million supporting his campaign for a seat on the court--more than 60% of the total amount spent to support Justice Benjamin's campaign-- while preparing to appeal the verdict against his company. After winning election to the court, Justice Benjamin cast the deciding vote in the court's 3-2 decision overturning that verdict. The question presented is whether Justice Benjamin's failure to recuse himself from participation in his principal financial supporter's case violated the Due Process Clause of the Fourteenth Amendment.
Since the nation’s highest court also takes cases where ambiguity exists and/or a conflict of court decisions on a similar topic depending upon the jurisdiction (state or federal circuit), the U.S. Supreme Court will often in deciding a case spell out in some form how similar circumstances should be determined in the future. More often than not, the conservative court, answers a general questions which triggers an abundance of new unanswered questions. Using legalize, they are “left for another day,” translation: Another case in which one or more of them must be decided.
One friend of the court brief comes from the Conference of Chief Justices, which is comprised of the Chief Justices or Judges of the highest courts of each state, the District of Columbia, the Commonwealths of Puerto Rico and the Northern Marianna Islands and the territories of American Samoa, Guam and the Virgin Islands.
The brief requests that the U.S. Supreme Court draw a line in the sand so that the respective court will know when a disqualification decision reaches constitutional implications.
“Each year 47 million new non-traffic court cases and 283,000 appellate cases are filed in the state courts. By contrast , in the federal court 320,000 new trial court cases and 5,500 appeals are filed as are 1.8 million bankruptcy cases,” the brief states.
The Conference of Chief Justices “urges” the U.S. Supreme Court to: (1) articulate the circumstances under which the Due Process Clause of the 14th Amendment may prevent a state judge from presiding over a particular matter because of campaign support, and (2) to consider carefully the criteria that may be relevant in determining whether a particular judge is constitutionally disqualified.
Admitting that many states require that judges run for election, the Conference worries that as campaign costs escalate, the judicial branch risks becoming a “super-legislature.” And, despite canons and codes for impartiality, most judges are held to a standard where there must be no perception of bias for or against one litigant. Bias can be proven, for instance, by a financial interest in a case. For instance, in 1986 , the Supreme Court determined that a justice must step aside from a bad faith insurance case. The judge was not a party, but his own insurance came from party to the case. The Supremes determined “the possible temptation [and circumstances] to the average judge leads him NOT to hold the balance nice , clear and true.”
While there is a presumption of integrity in the judiciary, the very fact that it is merely a presumption indicates that in some situations it can and will be overcome.
Thus, in evaluating whether a judge’s potential bias violates a litigant’s due process rights, the question is not whether a judge of the highest integrity may be able to resist the temptation of partiality. Rather, the question is whether an average judge would be tempted under the circumstances.
Given the ubiquity of judicial elections and the ever increasing amounts of campaign spending in those elections, circumstances can be imagined in which campaign support “ ‘would offer a possible temptation to the average man as a judge to forget the burden of proof required
* * * or which might lead him not to hold the balance nice, clear and true.’ ”
The brief requests that the nine justices contemplate that “no set amount [of a donation] “ can be labeled as triggering recusal due to a variance in the size of cities and states.
Secondly, states permit wide discretion on “how to spend or dispose of campaign funds.”
Thirdly, the timing of a contribution could be problematic, particularly if the contributor has a case that will be pending before the court (or could be) pending.
Other considerations: A contribution pointed toward a particular campaign message, the amount and nature of contributions by the entity to previous jurist campaigns, and the supporter’s pre-existing relationship with the judge and/or the supporter and litigant.
Bottom line: To allow judges across the country and territories to make proper constitutional due process decisions regarding the impact of a campaign contribution, the U.S. Supreme Court should “clarify the applicability of the Due Process Clause to motions to disqualify based on campaign support and articulate the considerations that should be weighed” when a judge must determines whether he should remove himself voluntarily from a case.
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Chief Justices Organization Requests U.S. Supreme Court to Set Standards for Recusal
Brief Supports Neither Party, Asks for Guidance
By Tony Rutherford
Huntingtonnews.net Reporter
Washington, DC (HNN) -- The campaign contributions provided to the campaign of West Virginia Justice Brent Benjamin by an entity apparently on behalf of Massey Coal will be heard by the U.S. Supreme Court Tuesday, March 3.
The case of campaign contributions impacting the fairness of a judge sitting on a case originating from the corporate contributor has drawn 16 “friend of the court” briefs. These organization (or “friends”) believe they have a stake in the outcome of the high court’s decision and have been granted permission to argue their point(s) to the nine justices. Ten of the briefs support the contention that Justice Benjamin should have stepped aside. Four support Benjamin and two neither party.
Since the U.S. Supreme Court receives thousands of requests for review, the justice select between 1 and 1.5 percent of the petitions, which must implicate a federal question and have the potential for impacting many states.
Rather than simply argue alleged errors by lower courts, the petition to the U.S. Supreme Court for review must come in the form of a question. In addition, since the solicitor general represents the United States in cases before the court, his or her opinion can sway the court to take a case.
Legally styled Caperton v. A.T. Massey Coal Co. (Docket 08-22), a former solicitor general now in private practice represents the Caperton interests.
For the record, the question before the nation’s highest court is:
Justice Brent Benjamin of the Supreme Court of Appeals of West Virginia refused to recuse himself from the appeal of the $50 million jury verdict in this case, even though the CEO of the lead defendant spent $3 million supporting his campaign for a seat on the court--more than 60% of the total amount spent to support Justice Benjamin's campaign-- while preparing to appeal the verdict against his company. After winning election to the court, Justice Benjamin cast the deciding vote in the court's 3-2 decision overturning that verdict. The question presented is whether Justice Benjamin's failure to recuse himself from participation in his principal financial supporter's case violated the Due Process Clause of the Fourteenth Amendment.
Since the nation’s highest court also takes cases where ambiguity exists and/or a conflict of court decisions on a similar topic depending upon the jurisdiction (state or federal circuit), the U.S. Supreme Court will often in deciding a case spell out in some form how similar circumstances should be determined in the future. More often than not, the conservative court, answers a general questions which triggers an abundance of new unanswered questions. Using legalize, they are “left for another day,” translation: Another case in which one or more of them must be decided.
One friend of the court brief comes from the Conference of Chief Justices, which is comprised of the Chief Justices or Judges of the highest courts of each state, the District of Columbia, the Commonwealths of Puerto Rico and the Northern Marianna Islands and the territories of American Samoa, Guam and the Virgin Islands.
The brief requests that the U.S. Supreme Court draw a line in the sand so that the respective court will know when a disqualification decision reaches constitutional implications.
“Each year 47 million new non-traffic court cases and 283,000 appellate cases are filed in the state courts. By contrast , in the federal court 320,000 new trial court cases and 5,500 appeals are filed as are 1.8 million bankruptcy cases,” the brief states.
The Conference of Chief Justices “urges” the U.S. Supreme Court to: (1) articulate the circumstances under which the Due Process Clause of the 14th Amendment may prevent a state judge from presiding over a particular matter because of campaign support, and (2) to consider carefully the criteria that may be relevant in determining whether a particular judge is constitutionally disqualified.
Admitting that many states require that judges run for election, the Conference worries that as campaign costs escalate, the judicial branch risks becoming a “super-legislature.” And, despite canons and codes for impartiality, most judges are held to a standard where there must be no perception of bias for or against one litigant. Bias can be proven, for instance, by a financial interest in a case. For instance, in 1986 , the Supreme Court determined that a justice must step aside from a bad faith insurance case. The judge was not a party, but his own insurance came from party to the case. The Supremes determined “the possible temptation [and circumstances] to the average judge leads him NOT to hold the balance nice , clear and true.”
While there is a presumption of integrity in the judiciary, the very fact that it is merely a presumption indicates that in some situations it can and will be overcome.
Thus, in evaluating whether a judge’s potential bias violates a litigant’s due process rights, the question is not whether a judge of the highest integrity may be able to resist the temptation of partiality. Rather, the question is whether an average judge would be tempted under the circumstances.
Given the ubiquity of judicial elections and the ever increasing amounts of campaign spending in those elections, circumstances can be imagined in which campaign support “ ‘would offer a possible temptation to the average man as a judge to forget the burden of proof required
* * * or which might lead him not to hold the balance nice, clear and true.’ ”
The brief requests that the nine justices contemplate that “no set amount [of a donation] “ can be labeled as triggering recusal due to a variance in the size of cities and states.
Secondly, states permit wide discretion on “how to spend or dispose of campaign funds.”
Thirdly, the timing of a contribution could be problematic, particularly if the contributor has a case that will be pending before the court (or could be) pending.
Other considerations: A contribution pointed toward a particular campaign message, the amount and nature of contributions by the entity to previous jurist campaigns, and the supporter’s pre-existing relationship with the judge and/or the supporter and litigant.
Bottom line: To allow judges across the country and territories to make proper constitutional due process decisions regarding the impact of a campaign contribution, the U.S. Supreme Court should “clarify the applicability of the Due Process Clause to motions to disqualify based on campaign support and articulate the considerations that should be weighed” when a judge must determines whether he should remove himself voluntarily from a case.
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