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After Caperton, Will Judges, Donors Proceed With Caution?

By Peter Hall
June 15, 2009
The Legal Intelligencer

Analysis

Campaign contributions in Pennsylvania judicial elections are not likely to dry up as a result of the U.S. Supreme Court's decision that a West Virginia Supreme Court justice should have disqualified himself in a case involving a major political donor's company, but it might lead to closer scrutiny of who is contributing to judges and how much, court watchers say.

In Caperton v. Massey Coal Co., Justice Anthony Kennedy, writing for the five-justice majority, ruled that the U.S. Constitution's Due Process Clause requires an inquiry into whether a contributor's influence on the election of a judge, under the circumstances, would tempt that judge to abandon impartiality. Kennedy's opinion stresses that the Caperton case is one of the most egregious nature, and under the totality of the circumstances, the justice's recusal was warranted.

Many of the judges and lawyers who spoke to The Legal about the impact of the decision in Pennsylvania said the facts of the West Virginia case likely have no equal in Pennsylvania. . . .

In Caperton, Massey Coal Co. was the defendant in a commercial case where a jury awarded $50 million in damages. Massey's chairman and principal officer, Don Blankenship, supported Brent Benjamin in his 2004 campaign for a seat on the West Virginia Supreme Court to the tune of $3 million, far outspending any other supporter or Benjamin's own campaign committee.

Benjamin won a seat on the high court as Massey's appeal of the $50 million verdict was pending. When the plaintiffs in the commercial case moved to disqualify Benjamin, under the Due Process Clause and the state's Code of Judicial Conduct, Benjamin denied the motion. The court then reversed the verdict and affirmed the decision on reconsideration.

"The only thing surprising about [the Caperton] decision is that there were four justices who dissented," said Rob Byer, a former Commonwealth Court judge and head of the appellate division of Duane Morris' trial practice group. "The notion that a justice could hear a case under these circumstances is something that I, and most people, find appalling."

Kennedy said the correct focus in determining whether the facts in Caperton presented a due process violation was on the size of the contributions relative to the total amount of contributions and the overall amount spent in the campaign, the apparent influence of the contributions on the outcome of the election and the risk that the contributor's influence engendered actual bias. Kennedy also noted that the temporal relationship among the campaign contributions, the justice's election and the decision of the case is critical.

"You put that all together with a realistic assessment of human nature in the perception of the parties involved there is a real threat of impropriety," Byer said.

Others said the dissenting opinion of Chief Justice John G. Roberts Jr. raises dozens of questions about the majority decision that illustrate the difficulty of applying the Caperton rule. For example, Roberts asked, "How much money is too much money?" and "How long does the probability of bias last?"

Philadelphia Court of Common Pleas Judge Anne Lazarus, who serves as chairwoman of the ethics committee of the Pennsylvania Conference of State Trial Judges, said the lack of a bright-line rule limits the immediate applicability of the Caperton decision. Lazarus is a Democratic candidate for Superior Court but spoke in her capacity as ethics committee chairwoman. Calls to other Superior Court candidates were not returned with the exception of Allegheny County Common Pleas Judge Judith Olsen, a Republican candidate, who said she had not yet read the opinion and chose not to comment.

But Lazarus said existing Pennsylvania caselaw could already incorporate the directives of the Caperton court.

"I don't think it's as simple as if there is a significant contribution you can't hear the case," Lazarus said.

Pennsylvania's standard for recusal was established in the 1985 state Supreme Court decision in Riley v. SEPTA, and requires a judge to step away from a case when a significant minority of the lay community could reasonably question the court's impartiality, Lazarus said.

"I think our standard is fluid enough that it incorporates what happened in this case," Lazarus said.

Lazarus said state courts will be left to find answers to the questions Roberts raises. She predicted that the question of timing will be among the issues that come before Pennsylvania courts.

"If somebody gave you a $5,000 contribution and you are in your 10th year, I'm not sure that it will have the same impact as this judge who received $3 million to be elected while this case was pending," Lazarus said.

Byer said lawyers and judges both will be required to perform those kinds of analyses in the future.

"Judges are going to have to look seriously at recusal. And that's as it should be," Byer said.

The likelihood of recusal increases as the amount of money involved in a judge's campaign increases, Byer said. He added he believes that candidates for the common pleas court are most likely to receive a significant percentage of their campaign donations from a single source, noting one instance in Allegheny County where a judge received a $100,000 campaign loan from a former lobbyist.

"If something comes up involving this person or a client, it would be sufficient to implicate the Caperton analysis," Byer said. "If someone can be identified as a judge's largest donor . . . I would think that common sense or good judgment would prevail."

Byer said that in his experience, the issue of campaign contributions and their potential to create an appearance of impropriety is one that he has dealt with both as a lawyer and on the bench.

"I have examined political contribution reports. I have not had a case where I have seen a need to ask for recusal, but it is something that I have always been attentive to," Byer said.

"There were cases on the Commonwealth Court where I recused when there were cases coming up that involved someone who was involved in my election campaign. It didn't happen often, but there were a couple of cases where I could see a case was coming up that involved a political supporter," he said.

Superior Court Judge Jack Panella, who is the Democratic candidate for state Supreme Court, said he has also dealt with recusal issues in the context of the state Court of Judicial Discipline, where he was a judge, and the Judicial Conduct Board, of which he was a member. Although he had not read the entire opinion Tuesday, Panella said he believes Kennedy's decision to avoid a bright-line rule may result in judges erring on the side of caution.

"I think that might have been the best approach — to leave it open for the judge to say even though there is no direct evidence of impropriety and it doesn't directly affect me, I am sending the wrong message out to the public," Panella said.

Republican state Supreme Court candidate Joan Orie Melvin did not return a call for comment.

'Testing the Waters'

Another point raised by the dissent is that the majority decision could lead to the filing of groundless "Caperton motions" alleging judicial bias.

"The end result will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case," Roberts wrote.

Arthur Hellman, a professor at the University of Pittsburgh School of Law, said Roberts is probably correct that the decision will spawn motions for recusal that might not otherwise have been filed.

"They'll test the waters to see what kind of response they get," Hellman said. "The judges and justices will emphasize what the [ Caperton ] court says again and again in the decision and that is that this is an extreme case."

Hellman said he doesn't believe there will be a deluge of such filings because there's a measure of risk in moving to disqualify a judge that should inspire caution.

"He's filing a public document that says he doesn't thing justice 'x' can be fair in his case," Hellman said. "He's really saying I think there's an appearance of partiality. That's a subtle distinction that's lost on most people."

Hellman conceded that Roberts may have a point that the denial of baseless recusal motions could have an adverse impact on public confidence in the courts.

"Suppose you have some lawyer who makes a motion and talks to the press about it. The judge says under Caperton and state law I'm not required to recuse. You'll have debate about that," Hellman said. "It could add to the number of the disqualification motions but it could also add to the attention that they get."

The Caperton majority's decision is also unclear on how the finding that the Due Process Clause requires recusal might be applied when the donor is an ideological group such as a labor union or a group of attorneys with a common interest.

Mark Tanner, treasurer of the Committee for a Better Tomorrow, the political action committee of the Philadelphia Trial Lawyers Association, said the group recognized long ago that it was in the best interest of trial lawyers and their clients to support judicial candidates who respected the right of individuals to have the same access to courts as corporations and other business entities.

"We formed a PAC so that we could provide some degree of anonymity to that process," Tanner said.

Tanner said he doesn't think Caperton should apply to require recusal on ideological grounds.

"It's hard to say, 'If you support a candidate you deem worthy, you'll never be able to appear in front of them.' You might as well tell them to support candidates you think are terrible because you don't want to appear in front of them," Tanner said.

Tanner said judges must have the ability to decide for themselves when they should step away from a case.

"At some point you have to have enough respect for the person you put on the bench that they can rule independently, because if you don't believe that they shouldn't be there," Tanner said.

Reintroducing Merit Selection

The Caperton decision also renewed debate over the need for change in how Pennsylvania and 38 other states select judges. Pennsylvania is one of six states that elects all of its judges in partisan contests. The remainder use a combination of elections for judges at some levels and merit selection at others or nonpartisan elections.

State Sen. Jane Earll, R-Erie, reintroduced legislation Monday that would create a merit selection system for appellate judges in Pennsylvania.

"I think the timing is good for the legislation. The United States Supreme Court recognizes there is a problem," said Shira Goodman, associate director of Pennsylvanians for Modern Courts.

Goodman said the Caperton decision is not a solution for litigants who feel they aren't able to get fair and impartial access to justice because of a judge's financial ties to a donor.

"I think a lot of people are going to feel like they can make these motions now. And a lot of judges are going to say this case isn't like Caperton and not recuse. And then there's no recourse and that's not a solution for the smaller litigants," Goodman said.

Byer said he agreed that merit selection would eliminate the issue once and for all.

"I would like to have a system where judges are freed from the potential criticism that they are deciding cases for their own benefit if they are going to be running for office," Byer said. "A judge might do the right thing and at the same time be subject to criticism for doing what is objectively right."

This article originally appeared in The Legal Intelligencer and is republished here with permission from law.com.