Due process requires a fair trial in a fair tribunal. Recent decisions addressing the circumstances in which judicial bias rises to the level of a due process violation have important implications for judicial disqualification. The U.S. Supreme Court held in Caperton v. A.T. Massey Coal Co., 556 U.S.___, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009) that Massey’s chairman’s $3 million contribution to a justice’s judicial campaign (albeit indirectly), required that the justice be recused from ruling on Massey’s $50 million tort case on appeal, because the contribution had a disproportionate influence on the electoral outcome, violating due process. Prior to the ruling, the justice had cast the deciding vote overturning the $50 million verdict. The case inspired John Grisham’s novel, The Appeal, which describes a fictional “pro-business lobby that has slowly, methodically marched across this country and purchased one Supreme Court seat after another.” John Grisham, The Appeal 186 (Doubleday 2008).

 

In separate Caperton dissents, Justice Scalia asserts that not everything is covered by the due process clause, and predicts a torrent of litigation over judicial recusal, while Justice Roberts sets forth a series of 40 questions unanswered by the majority’s newly-announced, undefined doctrine, predicting erosion in public confidence. The California Supreme Court, reading Caperton narrowly, somewhat answers Justice Roberts’ question number 21 in People v. Freeman, 47 Cal.4th 993 (2010), holding that a judge’s failure to recuse himself due to his friendship with another judge of the same court, whom the defendant was thought to be stalking, did not constitute a due process violation.

 

The Caperton saga began with a jury verdict for $50 million for various tort claims. Don Blakenship, the Chairman of the defendant Massey, made contributions to Brent Benjamin’s campaign for election to the Supreme Court of Appeals of West Virginia (the state’s highest court), including $2.5 million to a PAC, $500,000 on independent expenditures (direct mail, radio, and TV), and $1,000 to the campaign. The people elected Benjamin, and Massey appealed the verdict, which precipitated Caperton’s motion to recuse Benjamin, which Benjamin denied. The Court then reversed the verdict, with Benjamin voting with two other justices, Maynard and Davis, to reverse. Maynard then recused himself after it was revealed he vacationed with Massey Chairman Blankenship on the French Riviera; and another justice recused himself due to his criticism of the elections; but Benjamin again refused to recuse himself, and the verdict was again reversed, with Benjamin acting as Chief Justice, and therefore selecting the replacement justices.

 

The ABA Model Code of Judicial Conduct requires a judge to avoid even an appearance of impropriety and examines whether the conduct would create in the minds of reasonable people a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality, and competence. ABA Model Code of Judicial Conduct, Canon 2 (2004). In addition, 18 U.S.C. §455 indicates that a judge should disqualify himself or herself where his or her impartiality might reasonably be questioned, using an objective test. Judicial codes and statutes impose more rigorous standards than the Due Process Clause requires, so that: “most disputes over disqualification will be resolved without resort to the Constitution.” Caperton, 129 S.Ct. at 2267.

           

The majority in Caperton found that the Due Process Clause of the United States Constitution also protects litigants against judicial bias, and that recusal is required when the “probability of actual bias” on the part of the judge is too high to be “constitutionally tolerable.” The Court held that “due process requires an objective inquiry” into whether the contributor’s influence would, under the circumstances, tempt the average judge to tip the balance. Id. at 2264. The majority held critical the “temporal relationship between the campaign contributions, the justice’s election, and the pendency of the case.” The Court concluded that “a serious, objective risk of actual bias [ . . . ] required Justice Benjamin’s recusal.” Id. at 2265. The majority characterized its decision as addressing an “extraordinary situation” with facts “extreme by any measure,” likely to apply only in “rare instances.” Id. at 2266-67.

           

Justice Roberts’ dissent queries whether the “probability of bias” standard announced by the majority constitutes a “rule” that is sufficiently defined in the opinion to provide practical guidance to judges and litigants regarding when judicial recusal is required. He predicts an inevitable increase in recusal litigation, resulting in erosion of public confidence in the judiciary. Id. at 2267. Roberts notes that historically, recusal was required only when the judge had a financial interest in the outcome in the case, or presided in criminal contempt proceedings resulting from defendant’s hostility towards the judge. Most significantly, Justice Roberts said it was “unclear whether the new probability of bias standard is somehow limited to financial support in judicial elections, or applies to judicial recusal questions more generally.” Id. at 2268. Justice Roberts then enumerated forty questions left unanswered by the majority’s opinion, running the gamut from: 1) how much money is given; to 2) whether the standard applies in cases involving social or ideological issues rather than financial ones; to 3) whether close personal relationships can give rise to a probability of bias, to highlight just a few. Id. at 2268-71. Roberts’ questions make clear that the parameters of due process in the context of judicial recusal remain to be defined. Factually, he also observed that Justice Benjamin’s opponent was also well-funded, with $2 million from the plaintiffs’ bar, and suggested that considerations other than finance contributed to the outcome of the election.

           

Justice Scalia, in a separate dissent, complains that the majority opinion will create “vast uncertainty” in the 39 states that elect judges. He predicts that the majority’s decision will perpetuate the perception that litigation is a game, with lawyers now delivering the “Caperton gambit,” after spending billable hours pouring through campaign finance reports and contesting non-recusal decisions. The Court cannot, Scalia asserts, repair all imperfections through the Constitution.

           

The debate is not an academic one, given that 39 states, California included, use judicial elections for at least some judges; 21 states use judicial elections for all judges; and 87% of all judges must run for election at some point in their judicial careers. Richard Briffault, Judicial Campaign Codes After Republican Party of Minnesota v. White, 153 U.Pa.L.Rev. 181 (2004).

           

As Justice O’Connor observed, the Supreme Court’s recent decision in Citizens United v. Federal Election Commission, 558 U.S.___, 175 L.Ed.2d 753 (2010), holds the potential for an even greater impact on judicial election finance by corporate donors. The Court in Citizens United held 2 U.S.C. §441(b)’s restrictions on corporate expenditures for electioneering communications unconstitutional. The Citizens United case gave the Court the opportunity to reflect upon its decision in Caperton, and on the role of political contributions to judges. As the Court observed: “Caperton’s holding was limited to the rule that the judge must be recused, not that the litigant’s political speech could be banned.” 175 L.Ed.2d at 795. The Court recognized that even technically independent contributions could be corrupting, and characterized the expenditures in Caperton as raising the “intolerable specter of quid pro quo corruption.” The Court speculated that, while “Caperton motions” would address some of the most significant abuses, such an approach would provide little comfort to states relying on campaign finance limitations to protect judicial integrity. Id. at 859. After Citizens United, regulating campaign contributions to judges can no longer resolve the corrupting influence, and the language of the Caperton decision arguably renders due process unavailable in all but the most egregious cases.

           

The solution, as former Justice O’Connor sees it, lies in reform. She has teamed with the University of Denver to form the O’Connor Judicial Selection Initiative, to help states move away from election toward judicial selection based on merit. In response to the Citizens United decision, Justice O’Connor predicted that “the problem of campaign contributions in judicial elections might get considerably worse and quite soon.” Former Justice O’Conner Sees Ill in Election Finance Ruling, New York Times, Jan. 26, 2010, at A16.

           

One commentator predicts that, given increases in campaign contributions to judges, Caperton will increase the number of recusal challenges, further undermining judicial integrity in the public eye. Lawrence Lessig, What Everybody Knows and What too Few Accept, The Supreme Court—Comments, 123 Harvard L. Rev. 104, 115-16 (2009). Another commentator acknowledges that while determining the probability of bias is inherently imprecise, the problem of campaign contributions influencing judicial decisions is more widespread than the Caperton decision acknowledges, and she argues that less substantial interests, and interests other than pecuniary ones, can also produce a probability of bias. Penny J. White, Relinquished Responsibilities, The Supreme Court—Comments, 123 Harvard L.Rev. 120, 126-27 (2009). After Caperton, the question was how lower courts would construe the decision, which contains plenty of broad language, but also describes the factual scenario as extraordinary. In California, the answer for now is that the California Supreme Court will read the Caperton decision quite narrowly.

 

Somewhat answering one of Justice Roberts’ 40 questions, the California Supreme Court in People v. Freeman, 47 Cal.4th 993 (2010), grappled with the defendant’s use of the Caperton gambit, holding the case did not present the extreme facts that would require judicial recusal on due process grounds. Query whether the facts in Freeman are not as extraordinary as those in Caperton. Briefly, these are the facts: After defendant’s daughter was placed in foster care, defendant mounted a campaign to disrupt the placement involving, among other tactics, stalking the foster parents. As defendant appeared before Judge O’Neill in a Marsden hearing, she referenced rumors that she had also been stalking the judge in her dependency case, Judge Elias. Judge O’Neill then recused himself, characterizing Judge Elias as a friend for 25 years, who had worked with Judge Elias at the district attorneys’ office.

           

Later, the defendant’s computer was found to contain no evidence indicating that the defendant was stalking Judge Elias, so the case was sent back to Judge O’Neill. Defendant filed a motion to disqualify Judge O’Neill pursuant to CCP §1701.1, but later withdrew her motion. At a later hearing, defendant reasserted that Judge O’Neill was biased, and claimed her lawyers bullied her into withdrawing the disqualification motion. At trial defendant was convicted.

           

On appeal, the Court reversed, finding that defendant’s due process rights were violated by Judge O’Neill’s refusal to recuse himself when the case was reassigned to him, because his friendship with Judge Elias, combined with the similarity of the stalking allegations involving Judge Elias with the charges against defendant, were “consistent with what one would typically associate with actual bias.”

           

The California Supreme Court saw the matter differently and granted review to apply the Caperton decision, to determine whether the probability of actual bias on the part of Judge O’Neill was “constitutionally intolerable.” Applying Caperton, the Court asked whether the average judge in the position of Judge O’Neill was likely to be neutral, or whether there was an unconstitutional potential for bias. While acknowledging that Caperton extended the protections of the Due Process Clause beyond the realm of pecuniary interest to a “more general concept of interests that tempt adjudicators to disregard neutrality,” the Court unanimously held that Judge Elias’s friendship with Judge O’Neill did not require recusal based on the due process clause, because the case did not implicate the concerns enumerated in Caperton, that is, the situation did not involve either of the two historic bases for judicial disqualification under the due process clause, pecuniary interest or enmeshment in contempt proceedings, and it did not involve the situation that concerned the Court in Caperton, that is, campaign finance. Thus the Freeman Court read Caperton in the narrowest sense.

           

Some ethics experts believe that Caperton may influence the 33 states in which the standards of judicial conduct are under review, particularly in the area of financial conflicts, leaving due process as a last resort. 25 BNA Lawyers Manual on Prof. Conduct 335 (2009). Now that the U.S. Supreme Court has essentially federalized the law of judicial recusal, where the constitutional due process line is drawn will be answered in the coming years by case law slowly working out the answers to Justice Roberts’ 40 questions, staking out which of the various influences that can tempt judges to disregard neutrality are deemed “constitutionally intolerable.” Those seeking recusal based on a due process violation will rely on the broad language of the Caperton decision, as the defendant did in Freeman. Those resisting such motions will find support in the Freeman decision for the proposition that the Caperton decision is confined to its particular facts. In the interim, the “Caperton gambit” may shed light on matters of judicial integrity, police potential judicial corruption, and perhaps illuminate the wisdom of judicial election.

Carole J. Buckner is a Special Assistant United States Attorney and an Adjunct Professor at Western State University College of Law, and serves as Chair of the State Bar’s Committee on Professionalism and Conduct (COPRAC), and is a member of the OCBA’s Professionalism and Ethics Committee.