Appealing in Nevada : Nevada Appellate Lawyer & Attorney : Tami D. Cowden : Nevada Supreme Court, Ninth Circuit Court of Appeals

That was the conclusion today of the U.S. Supreme Court’s  ruling in Caperton v. A.T. Massey Coal Co.. The Court found that the failure of a  judge on West Virginia’s highest court to recuse himself from a matter in which a sizable donor  to the judge’s election campaign had in interest violated federal due process. I've mentioned this case before: Recusal required due to future campaign contributions?

The Court considered the facts from this case extreme. The donor had contributed $3 million to the judge’s campaign, an amount greater than all other donations combined, and made the donation  after his company had been hit with a $50 million judgment. The recipient of the donations defeated the  incumbent by fewer than 50,00 votes. The judge declined to recuse himself from hearing the matter, and the Court subsequently reversed the judgment on a 3 to 2 decision.

Justice Kennedy authored the 5-4 decision.

As we might have expected, Roberts, Scalia, Thomas and Alito dissented.

Regardless of actual bias, there will always be fears of bias when judicial elections can so easily be influenced by an infusion of cash donations to one candidate or another. In the Caperton decision, the Court noted the potential psychological effect of sizable donations upon the judge.

Such risks are considerably decreased under a merit selection system. Assorted changes in my own life (such as moving to a new firm, etc) have caused me to be remiss in applauding the Nevada Legislature for its second passage of the SJR2, which proposes an amendment to the Nevada Constitution to allow for merit selection and retention elections, rather than elections to select judges.

If the voters show the same wisdom, then the fear of bias resulting from donations to judicial campaigns won’t be an issue in Nevada.  I doubt we have any examples from Nevada with the same extreme facts as in Caperton, but enlighten me if I am wrong.

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What will happen here in Nevada if the U.S. Supreme Court decides that due process requires a judge to recuse if a party had made a sizable donation to the judge’s campaign? While many Nevada judges do currently voluntarily recuse in such circumstances, they are not obligated to do so.  

Arguments were heard yesterday in a US Supreme Court case that could made such recusal mandatory.  Caperton v. A.T. Massey Coal Co.  involved a West Virginia Supreme Court Justice who declined to recuse himself in the coal company’s appeal of a $50 million fraud judgment. The president of the coal company had donated $3 million to electing the justice, who cast the deciding vote to overturn the verdict.  The facts of the case bear some similarity to the legal case underlying John Grisham's The Appeal.

The Petitioners asked the Supreme Court to adopt a rule holding that due process requires recusal by a judge in a case where a party had made a sizable donation to the judge’s election campaign.  Such a ruling could lead to frequent recusals in Nevada cases at every level, especially if donations by counsel were included.

The difficulty of such a rule would be deciding when it applies. No one seemed to suggest that an automatic recusal was appropriate.  Justice Scalia noted that the various amici in the case, including the Conference of Chief Justices, had offered an assortment of standards to be considered. Petitioners urged that a standard requiring consideration of the “probability of bias” be applied.

Comments during the argument on Caperton the Court suggest Kennedy, Stevens, Souter, Breyer, and Ginsburg could form a majority in favor of a rule that required recusal if there was a probability of bias. 

However, the best line from the argument has to be Scalia’s question to Petitioner’s counsel: "You've been around Washington a long time. How far do you think gratitude goes in the general political world?" 

But Scalia followed up that knowing remark with a statement that must surely be considered disingenuous, assuming that an elected judge would think:

that person contributed money to my election because he expected me to be a fair and impartial judge. And I would be faithful to that contributor only by being a fair and impartial judge. That is showing gratitude. I should do what he expected me to do, and I have no reason to think he expected me to lie and distort cases in order to come out his way. What I expected he wanted me to do was to be a good judge, and I'm being faithful to him and I'm -- I'm showing my gratitude by -- by being a good judge

The increased money being spent on state court judicial election campaigns across the country  has sparked considerable concern about the purchase of justice.  But  Massey Coal has rejected any comparisons of its situation with that laid out in John Grisham’s novel of last year, The Appeal, wherein a judicial candidate was handpicked with the pending appeal of huge tort judgment in mind.  See the USA Today article Supreme Court case with the feel of a bestseller.

Read the transcript of the Caperton oral argument here. Find the briefs here.

Hat Tip to law.com. See its report here.

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