In a recent decision by the United States Supreme Court, the Court addressed the issue of when a judge is required to recuse or withdraw himself from a case in order to avoid running afoul the Due Process Clause of the Fourteenth Amendment. Caperton, et al. v. A.T. Massey Coal Company, Inc., et. al., 556 U.S. ___ (2009).
In Caperton, the trial court awarded the plaintiff damages in excess of $50 million dollars. Subsequent to the trial court’s decision and before the defendant appealed the trial court’s decision, the defendant made substantial donations to a local attorney running for a position on the bench for the state’s appellate court. The defendant then appealed the award against it after the local attorney was elected by a slim margin. Interestingly enough, the appeal resulted in a reversal of the award against the defendant, wherein the newly elected justice was the deciding vote. After working its way up to the United States Supreme Court, the issue presented before the Court was whether the newly elected justice’s refusal to recuse himself from the case involving a defendant that made generous donations to his election campaign violated the Due Process Clause of the Fourteenth Amendment.
The decision, authored by Justice Kennedy, ultimately found that the newly appointed justice was required to recuse himself. The Court made no indication that there was actual bias; rather, the Court relied on the fact that recusal may still be required absent a finding of actual bias. In support of this conclusion, the Court cited to the American Bar Association’s Code of Judicial Conduct that reads, “A judge shall avoid impropriety and the appearance of impropriety.” ABA Annotated Model Code of Judicial Conduct, Canon 2 (2004) (emphasis added). Further, the test for appearance of impropriety is “whether the conduct would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.” Canon 2A, Commentary. In short, the Court’s concerns were not only with the danger of subjective, actual bias in the decision making process, but the perceived bias a judge may have given the surrounding circumstances, regardless of whether the judge’s decision was planted on solid legal ground.
The Court clearly recognized the judge’s deciding vote in the instant case in favor of a party that made substantial donations to his election campaign created a “perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence” was impaired. The Court went so far as to infer that, in this case, it would appear to be the equivalent to a party getting to choose its own judge at the expense of the opposing party.
In finding that the Due Process Clause of the Fourteenth Amendment had been violated, the Court sent the case back to the West Virginia Supreme Court and ordered the newly elected justice to recuse himself from the Caperton case. Although the Court did not delineate a bright line rule specifying what actions do or do not require recusal, the Court, in this instance, sent a clear message that a favorable outcome cannot be purchased.