As the Michigan Supreme Court prepares to take up the thorny issue of recusal standards at its March 5 public administrative hearing, the U.S. Supreme Court will hear oral arguments March 3 in a case that brings the issue into painfully sharp focus.
And two current and one former Michigan Supreme Court justices have weighed in on the matter.
In the U.S. Supreme Court case, Caperton v. Massey, Massey, a coal company, was hit with a $50 million judgment. A jury accepted the claims of Caperton, the president of another coal company, that Massey fraudulently wrecked his business. The verdict was overturned on appeal.
The question presented to the U.S. Supreme Court, as Caperton formulated it in the petitioners’ brief, is this:
Justice Brent Benjamin of the Supreme Court of Appeals of West Virginia refused to recuse himself from the appeal of the $50 million jury verdict in this case, even though the CEO of the lead defendant spent $3 million supporting his campaign for a seat on the court – more than 60% of the total amount spent to support Justice Benjamin’s campaign – while preparing to appeal the verdict against his company. After winning election to the court, Justice Benjamin cast the deciding vote in the court’s 3-2 decision overturning that verdict. The question presented is whether Justice Benjamin’s failure to recuse himself from participation in his principal financial supporter’s case violated the Due Process Clause of the Fourteenth Amendment.
In the respondents’ brief, Massey framed things this way:
Petitioners sought the recusal of Justice Brent Benjamin of the West Virginia Supreme Court of Appeals on the ground that Don Blankenship, an officer of respondent A.T. Massey Coal Company and its parent (Massey Energy Company), had made large independent expenditures in an effort to defeat Justice Benjamin’s opponent in an election several years before this case was decided. Apart from a $1,000 contribution by A.T. Massey’s Political Action Committee, neither respondents nor Massey Energy made any expenditures in support of Justice Benjamin’s election or in opposition to his opponent; Blankenship’s only direct contribution to Justice Benjamin’s campaign totaled $1,000; and Justice Benjamin has voted against Massey affiliates in at least five other cases, including one in which the judgment against Massey was almost five times that
here.The question presented is whether the Due Process Clause of the Fourteenth Amendment required Justice Benjamin’s disqualification on the theory that he must have felt a “debt of gratitude” to Blankenship that created a “probability of bias” in favor of respondents.
To be clear, Massey is not disputing Caperton’s claim that Blankenship spent $3 million on the election. Massey admits to that figure early on in its brief.
The case has drawn intense amici interest. The Brennan Center for Justice at the New York University School of Law has cataloged the briefs here.
There’s a definite pro-petitioner bias: links to the amici briefs supporting petitioner Caperton are accompanied by excerpts; the links to amici briefs supporting the respondents are unadorned. No matter. You can get to the briefs and judge for yourself who’s making the better arguments.
Michigan Supreme Court Justices Maura Corrigan and Robert Young, and former justice Clifford Taylor, along with seven other current and former state supreme court justices, have signed on as amici curiae in support of the respondents.
Here’s an excerpt from the brief’s “Summary Of The Argument”:
Petitioners contend that a due process violation exists here because the expenditures made in a judicial election would create a debt of gratitude in a judge towards the individual that made those expenditures. Accordingly, they claim, public confidence in judicial integrity would be hurt if the judge failed to recuse in a case involving a party that employs the individual who made the expenditure.
The logic of such a debt-of-gratitude rule could not be limited in a principled way to the instant case; therefore, the entire process of judicial elections would be imperiled. Indeed, the logic of such a rule would apply when the judge is aware of the individual’s preferred position even if neither that individual nor any related entity or person were a party. The logic would also apply to nonmonetary political support like editorial page endorsements or in-kind contributions such as get-out-the-vote efforts.
Were this Court to adopt a multi-factored amorphous due process rule, there are a number of likely consequences that would lead to decreased public confidence in the judiciary. Such a holding would endanger collegiality by creating the opportunity for political gamesmanship between different ideological factions on a court. “Weaponizing” the judicial disqualification process by importing a multi-factored due process notion would create a tool for litigants to use to undermine the people’s democratically expressed preference for a certain type of judicial philosophy. It could wreak havoc with stare decisis as “special” litigants would be able to create different compositions of a court by selectively targeting for disqualification judges whose judicial philosophy they deemed insufficiently congenial to the litigant’s cause. By using disqualification as a weapon, litigants would be able to create a jurisprudence that would diverge from that which would have otherwise emerged from the court’s duly elected judges.
The Michigan Lawyer 