Court says judges must avoid appearance of bias

Court Says Judges Must Avoid Appearance of Bias

By Mark Sherman
Associated Press

June 8, 2009

WASHINGTON (AP) — The Supreme Court ruled Monday that elected judges must step aside from cases when large campaign contributions from interested parties create the appearance of bias.

By a 5-4 vote in a case from West Virginia, the court said that a judge who remained involved in a lawsuit filed against the company of the most generous supporter of his election deprived the other side of the constitutional right to a fair hearing.

"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," Justice Anthony Kennedy said for the court.

With multimillion-dollar judicial election campaigns on the rise, the court's decision Monday could have widespread significance. Justice at Stake, which tracks campaign spending in judicial elections, says judges are elected in 39 states and that candidates for the highest state courts have raised more than $168 million since 2000.

"Judicial elections have become more expensive, more negative and more subject to influence by special interest groups," said Chief Justice Margaret Marshall of Massachusetts, president of the Conference of Chief Justices.

The West Virginia case involved more than $3 million spent by the chief executive of Massey Energy Co. to help elect state Supreme Court Justice Brent Benjamin. At the same time, Massey was appealing a verdict, which now totals $82.7 million with interest, in a dispute with a local coal company. Benjamin refused to step aside from the case, despite repeated requests, and was part of a 3-2 decision to overturn the verdict.

The coal company, Harman Mining Co., and its president, Hugh Caperton, took the case to the high court.

"Not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge's recusal, but this is an exceptional case," Kennedy said.

Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens joined Kennedy's opinion.

Chief Justice John Roberts wrote in dissent that he shares concerns about maintaining an impartial judiciary. "But I fear that the court's decision will undermine rather than promote these values," Roberts said.

Justices Samuel Alito, Antonin Scalia and Clarence Thomas also dissented.

Massey rejected assertions that Benjamin owed a debt of gratitude to Blankenship or that Benjamin displayed any bias in his ruling. Benjamin has ruled against Massey at least four times, including in a unanimous refusal to hear the company's appeal of a $260 million judgment won in another contract dispute.

The judge himself wrote a long opinion explaining his decision to take part in the case.

Kennedy said, "We do not question his subjective findings of impartiality and propriety. Nor do we determine whether there was actual bias."

Benjamin, now the state's chief justice, issued a statement Monday in which he said, "I am pleased the Supreme Court has not questioned my ethics, my integrity, or my personal impartiality or propriety."

He said the court recognized "that there is no 'white line' to guide judges like me in resolving the issue of an elected judge's duty to remain on a case versus the need to remove oneself due to external factors."

But, Kennedy said, the $3 million Blankenship spent to unseat the incumbent justice who was seeking re-election and replace him with Benjamin "had a significant and disproportionate influence in placing Justice Benjamin on the case."

The case now returns to the West Virginia court for a new hearing.

"We are confident that the Harman case was properly decided by the West Virginia Supreme Court initially and believe that any new examination of the same facts and same laws by new justices should yield the same result as before" said Massey vice president Shane Harvey, also the company's top lawyer.

The dissenters said the court's inability or unwillingness to lay out clear rules for when judges must step aside will provoke endless lawsuits aimed at forcing judges off cases.

"It is an old cliche, but sometimes the cure is worse than the disease," Roberts said. He wrote that it is not clear that Blankenship's money even affected the outcome of the election.

"I would give the voters of West Virginia more credit than that," he said.

Both Scalia and Roberts said that the ruling would end up undermining confidence in the judicial system, not enhancing it as the majority contended.

Former Colorado Supreme Court Justice Rebecca Love Kourlis, an advocate for ending partisan election of judges, agreed with the dissenters that more lawsuits could arise from Monday's ruling. "From my perspective, that's a good thing because it will make some states consider moving to merit selection," Kourlis said.

Former judges and interest groups on both sides of the debate over campaign contributions weighed in on the dispute. Wal-Mart and Pepsico were part of a brief of businesses asking for a ruling that Benjamin should have removed himself from the Massey case. Alabama, Colorado, Delaware, Florida, Louisiana, Michigan and Utah urged the justices to let the states work out their own rules.

Kennedy noted that states remain free to impose more rigorous standards for disqualification than the court mandated Monday.

The case is Caperton v. Massey, 08-22.