This morning the U.S. Supreme Court handed down a decision that could have huge impact here in Georgia and in every state in which judges are elected. In a story that could be straight out of a John Grisham novel, a West Virginia coal company lost a case at trial to the tune of $50 million. The coal company’s CEO then donated over $3 million to a 527 that advertised on behalf of a challenger to a sitting West Virginia Supreme Court justice, who eventually won in a close election. The new justice then refused to disqualify himself from hearing the coal company’s appeal and was part of a 3-2 decision reversing the $50 million verdict on what appear to be flawed legal grounds. After numerous efforts to get the court to rehear the appeal and recusals of several other justices, the plaintiffs finally appealed to the Supreme Court, which ruled today in a 5-4 decision that the justice’s refusal to recuse himself violated the plaintiffs’ due process rights.
This is the crux of the decision:
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….We conclude that there is a serious risk of actual bias–based on objective and reasonable perceptions–when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent. The inquiry centers on the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.
Applying this principle, we conclude that Blankenship’s campaign efforts had a significant and disproportionate influence in placing Justice Benjamin on the case. Blankenship contributed some $3 million to unseat the incumbent and replace him with Benjamin. His contributions eclipsed the total amount spent by all other Benjamin supporters and exceeded by 300% the amount spent by Benjamin’s campaign committee. Caperton claims Blankenship spent $1 million more than the total amount spent by the campaign committees of both candidates combined.
While Kennedy’s majority opinion takes great pains to limit the decision to the extreme facts of this case ($3 million is a LOT of money for one individual or entity to donate to a candidate, and appeared to be a concerted strategy for getting a company-friendly justice on the otherwise notoriously plaintiff-friendly W.V. Supreme Court), this case will no doubt have ramifications in other states, including Georgia, that use direct elections to seat appellate court justices. Where it appears that a company with an appeal on the way embarks upon a concerted effort to influence that court through major donations benefitting specific candidates, there will be a great deal of pressure for the recipients of such donations to recuse themselves from decisions involving their donors.
The case does expose the biggest risk in the election of appellate judges, one that no amount of forced recusal can really rectify. By forcing sitting justices to run for their seats, and by allowing unlimited donations to those who challenge sitting justices, the system necessarily invites the perception that donors will get more favorable treatment by the justices to whom they donate. This has been an issue in other states such as Texas, where companies who know their cases are winding their way through the appellate process have backed corporate-friendly challengers for judicial positions in the hopes that a more favorable panel will exist by the time their appeal reaches the top. This case takes that concept to its most extreme end, and in so doing it forced the Court to articulate a floor for what elected judges must do to avoid the appearance of bias. Hopefully most justices will decide to aim a little higher than that floor and err on the side of caution when they are faced with an appeal involving a major campaign donor.
(Normally I’d lay good odds on WV Supreme Court Justice Benjamin‘s ouster in his next election thanks this case, but West Virginia justices are elected to TWELVE YEAR terms. Barring a change to the state constitution to shorten Supreme Court terms, memories of the seedy way he got elected will probably have considerably faded by the time Benjamin faces the voters again in 2016.)
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