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High Court Says Judge Should Have Stepped Aside


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. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Corrected: June 9, 2009 at 12:37 PM PDT
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.
Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.