The mathematics of ‘appearance of impropriety’

In Caperton v. A.T. Massey Coal Co., ___U.S. ___; 129 S. Ct. 2252; 173 L. Ed. 2d 1208 (2009), we learned that when a newly elected appeals judge gets more than $3 million in campaign contributions directly and indirectly from a businessman, then votes with the majority to wipe out a $50 million judgment against him, the whole affair stinks to high heaven, and the judge’s refusal to recuse himself is a due process violation.

In Grievance Administrator v. Miller, we learn that when the Michigan Supreme Court declines to review the Attorney Discipline Board’s decision to dismiss an ethics complaint, MSC Chief Justice Marilyn Kelly believes that the attorney’s $3,400 contribution to her re-election campaign six years ago, without more, does not create the “appearance of impropriety” necessary under MCR 2.003 for Kelly to take herself off of the case.

Without Kelly’s participation, the attorney’s frustrated clients would be having their day in the Supreme Court. For some high-court drama on the MSC’s refusal to take the case, see, The Michigan Lawyer, “Corrigan rebukes MSC colleagues for not reviewing ADB decision” and “MSC’s Young: I will not participate in ‘Miller’.”

Now, the actual reason Kelly said she stayed on the case is that those litigants seeking to disqualify her didn’t file their motion quick enough, which was 28 days after the Court amended the rule to provide filing time limits.

But Kelly went beyond the procedural ground for dismissal and discussed two additional reasons why it was okay for her to be on the case.

First, said Kelly, the contribution was lawful:

A lawful campaign committee contribution, absent more, does not warrant recusal under our objective standard for the appearance of impropriety.

Indeed, such contributions are commonplace in judicial campaigns. The Michigan Campaign Finance Act’s campaign contribution disclosure provisions reflect the Legislature’s understanding that, standing alone, lawful contributions to campaign committees in the permitted amounts will not undermine the public’s confidence in our judiciary.

The contribution alone does not indicate any closer relationship between myself and respondent than would ordinarily exist between members of the same bar association.

In fact, appellants have not suggested that there exist any facts, aside from the contribution, that could cause my impartiality in this case to be questioned. And none does exist.

Second, Kelly noted, the amount involved is de minimus when compared to the total her campaign committee raised, and certainly not is the same league as the sums involved in Caperton:

[R]espondent’s single contribution of $3,400.00 represents a de minimis amount of the total raised by my campaign committee in 2004: less than one-half of one percent. This small amount does not create an objective appearance of impropriety.

In Caperton v A T Massey Coal Co, Inc, the U.S. Supreme Court ruled on a West Virginia Supreme Court justice’s refusal to recuse himself. The CEO of a lead defendant in a case before the West Virginia Supreme Court had contributed $3.5 million to the justice’s campaign. The refusal to recuse was held to constitute a violation of the due process clause of the Fourteenth Amendment.

However, given the obvious difference in size between the contribution at issue in Caperton and respondent’s contribution here, one could not reasonably analogize the two cases.

Thus, respondent’s contribution, absent any indicia of an appearance of impropriety, does not mandate my recusal, and the Caperton decision does not require it, either. In any event, appellants do not argue that Caperton mandates my recusal. Nor do they allege that respondent’s campaign contribution and my participation in this case amount to a due process violation.

In a footnote, Kelly did the math:

The Committee to reelect Supreme Court Justice Marilyn Kelly raised $728,800.45 from over 2,200 individual contributions. $3,400.00/$728,800.45 = .004665, or .4665%.

In contrast, Blakenship, the businessman in Caperton, financially dominated the election that elevated Judge Brent Benjamin to the Virginia appeals court. From the SCOTUS syllabus in Caperton:

To provide some perspective, Blankenship’s $3 million in contributions were more than the total amount spent by all other Benjamin supporters and three times the amount spent by Benjamin’s own committee. …

Caperton contends that Blankenship spent $1 million more than the total amount spent by the campaign committees of both candidates combined.

So, two points on the continuum have been established: $3,400 is chump change in the scheme of things and $3 million, an expenditure roughly 882 times larger, makes almost everyone, except the guy giving it and guy getting it, hold their noses.

There’s a tipping point between the two, somewhere. See, The Michigan Lawyer, “That’s too much!

Let’s hope we never have to find it.

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