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July 01, 2013

A Jurist and a Lawyer Consider Judicial Recusal After Caperton

By Judge N. Randy Smith and Robert S. Peck

Judicial disqualification remains an issue of widespread interest, particularly in the aftermath of the 2009 Supreme Court decision in Caperton v. A.T. Massey Coal Co.1 In Caperton, Caperton sued Massey and won a $50 million jury verdict in compensatory and punitive damages. After the verdict, and while the appeal was pending, Massey’s CEO spent $3 million to help an attorney-candidate, Brent Benjamin, unseat an incumbent justice on the Supreme Court of Appeals of West Virginia. After the election, but before the appeal was heard, citing the Due Process Clause, Caperton moved to disqualify now-Justice Benjamin. Justice Benjamin denied the motion because no evidence had been presented that he would be anything but fair and impartial. A sharply split panel of the court, including Justice Benjamin in the majority, then reversed the $50 million award against Massey.

On review, the Supreme Court noted that most judicial recusal matters do not implicate constitutional concerns. Rather, they are typically resolved under statutes and judicial codes.2 The Court did not question Justice Benjamin’s subjective finding of impartiality. However, it cautioned that the Due Process Clause turns on an objective standard that does not require proof of actual bias. In the context of campaign contributions, not every donation by a litigant or attorney “creates a probability of bias that requires a judge’s recusal.”3 In exceptional cases such as this one, however, recusal is required given the

serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent. The inquiry centers on the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.4

Here, the Court found that the CEO’s unparalleled contributions to Justice Benjamin had a “significant and disproportionate” influence on the election. In addition to the amount, the Court relied on the temporal relationship of the contributions to the election and the appeal. Here, the risk of actual bias was “sufficiently substantial” that Justice Benjamin should have disqualified himself in order to comport with due process and to avoid an unconstitutional level of probability of actual bias. Thus, under Caperton, in judicial recusal matters, due process is implicated when, under an objective standard, the risk or probability of actual bias is too high.

Sharing their perspectives of a jurist and a lawyer, respectively, Judge Smith and Mr. Peck answer questions regarding the impact of Caperton and the issue of judicial disqualification. Because the Caperton Court did not distinguish between “disqualification” and “recusal,” neither do the authors.

1. Did Caperton change the law?

NRS: No. Caperton filed an unsuccessful motion to disqualify the newly elected state supreme court justice under the Due Process Clause and the West Virginia Code of Judicial Conduct. Caperton also filed two subsequent disqualification motions and a request to rehear the merits of the case (all of which were denied). Only then did Caperton’s challenge reach the Supreme Court. Considering only the due process claim and citing its earlier precedent employing objective standards for recusal where “the probability of actual bias on the part of the judge . . . is too high to be constitutionally tolerable,” the Court concluded that due process required recusal. In other words, the Court merely applied due process principles to a new set of facts involving judicial election campaigns.

RSP: I agree with Judge Smith that Caperton did not change the law of judicial disqualification. Instead, it applied existing principles to a fact pattern that the Court itself had not examined before. Both beforehand and afterwards, the guiding principle is that due process guarantees all litigants a fair and impartial tribunal. The Caperton Court had to consider whether both the reality and the appearance of bias in favor of or against a party can threaten the ability of the courts to dispense justice while adhering to the rule of law.

The Court was mindful that, in a state that has chosen to select its judges through some form of election, the need to raise campaign funds brings with it at least the theoretical possibility of bias in favor of financial supporters. The task was how to draw a rational line that assured fairness to litigants, while still permitting full participation in an election by those who follow judicial job performance most closely. Here, it was only the “extraordinary situation” of a massive expenditure to secure the election of a judge that tipped the balance in favor of recusal.

2. Are we likely to see more disputes over judicial disqualification in the aftermath of this decision?

NRS: No. While litigants may want to cite Caperton as a separate, constitutional ground-supporting disqualification, it seems unlikely that the constitutional principles applied in Caperton will overshadow statutes and rules of conduct governing judicial disqualification and recusal. Indeed, the Court recognized that the Due Process Clause denotes the outer bounds of judicial disqualifications. As the Court noted, because the relevant codes of conduct provide a higher degree of protection, most disputes will be resolved under those rules without the need to resort to the Constitution.

However, if relevant codes of conduct are revised to incorporate “new” campaign contribution rules purportedly gleaned from Caperton, litigants may find more room to file recusal motions. Any revisions to codes of conduct should reflect the following. In making campaign contribution-based recusal determinations, especially in situations involving (1) contributions to an opponent’s campaign, (2) contributions to a campaign committee other than the candidate’s campaign committee, or (3) money spent on independent expenditures, judges should consider (1) the amount of contribution (both in terms of its relative size to the total contributions received and the total spent in the election); (2) the timing of the contribution, the election, and the pendency of the case; (3) the apparent effect of the contribution on the election; and (4) whether contributions were made directly to a candidate’s campaign committee or to an independent organization taking a position in the election.

RSP: We have now had enough experience since Caperton was decided in 2009 to know that Caperton-like disqualification motions will not become de rigueur. The Court itself reiterated language from a 1948 precedent that stated, “most matters relating to judicial disqualification [do] not rise to a constitutional level.” Nothing in Caperton changed that.

It is worth noting, however, that, while the Court called for “objective rules” that do not require proof of actual bias, it held that the inquiry revolves around the “contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.” These factors are not items usually within the knowledge of a judge, particularly in those jurisdictions where the law shields judges from who contributed to a campaign and in what amounts. Nor are they within a judge’s knowledge or legitimate concern where, as in Caperton, the money fueled an independent-expenditure campaign. For that reason, efforts to define recusal obligations in light of Caperton are not easily susceptible to incorporation in a judicial code of conduct and, perhaps, may best be placed elsewhere in the law.

3. Would bright-line standards be preferable to the “appearance” standard that generally prevails?

NRS: I believe existing rules are sufficient to guide judges’ recusal decisions under state statutes and codes. At the outer bounds of protection, the Due Process Clause acts as a constitutional check. The due process inquiry need not have a bright-line rule of application in order for judges to fairly apply the “appearance” standard. Further, states need not expand existing rules. Caution: If amendments are made to existing state codes and statutes, such amendments should first reflect the standards and circumstances in each state. Any amendments must also incorporate clear standards; vagueness will only confuse the process. For instance, the standard “a contribution that is ‘reasonable and appropriate’ for an individual or entity” is a “weasel word” standard (i.e., Idaho speak for whatever the user wants to argue). This is not helpful in clearly establishing the standard a judge should follow.

RSP: The Caperton decision called for objective standards, and a mere “appearance of bias” approach does not provide objective criteria. Objective standards, however, do not necessarily mean bright-line rules.

The appropriate threshold for when a campaign contribution creates a recusal issue will likely vary from state to state. Though Caperton focused on undefined, outsized contributions, it also made it clear that contributions within the normal spectrum of financial support should not cause anyone to raise an eyebrow. In Kentucky, for example, campaign contributions are limited to $1,000 per candidate per election. On the other hand, Georgia limits general election contributions in statewide races to $6,300. Certainly, contributions within these limits should not provide justifiable grounds to insist on recusal in those states. On the other hand, more significant contributions that constitute a significant portion of the total amount of money contributed to a campaign will raise due-process concerns. Between these two poles, particularly when considering unregulated independent expenditures, state-specific values may differ as to what constitutes grounds for recusal, even when due process does not require it—and the governing rules ought to reflect that.

4. Should recusal be left to the individual judge?

NRS: Yes. Judges have an overriding duty to hear cases, which must be considered alongside the ethical duty to recuse in certain cases. An individual judge is capable of determining when recusal is proper. However, in making this determination, a judge must also uphold his or her duty to hear cases without being tempted to recuse in cases where a controversial decision could hurt the judge’s reputation, chance of success in future elections, or chance of being elevated to a higher bench.

RSP: Overwhelmingly, judges do a good job of balancing their duty to preside with the litigants’ right to a fair tribunal when there is an appearance of bias. The question of whether somebody other than the judge should be involved only comes up when the suggestion of bias is palpable, but the judge still believes that he or she can be fair. As a lawyer, I always believe that I will prevail in my fair share of cases as long as I have a court willing to hear me out. That does not mean that I don’t believe a court may have reached a wrong result, but the idea that a fair hearing was held ameliorates my disappointment. In more than three decades of practice, I have only been involved in disqualification issues twice. In one instance, after initially refusing to recuse, a judge who seemed to have made a campaign promise did disqualify himself, though only after his initial refusal received attention. In the other instance, the judge refused to do so and an appellate court found that he should have. I was heartened that the first judge reconsidered and that the appellate court concluded that recusal was necessary. The latter case provides a reason, in rare cases, to look beyond the individual judge. Its rarity suggests that some review may be necessary in extreme cases, but also advises that reliance on faithful evaluation by the judge in question still should be the default position.

5. Should parties be given an opportunity to waive recusal?

NRS: Yes. Where not prohibited by relevant laws or codes of conduct, just as parties may waive other procedural safeguards, such as a right to a jury trial or the right against self-incrimination, parties should be allowed to knowingly, voluntarily, and intelligently waive the right to challenge a jurist for impartiality. Where a party knows of grounds for recusal but fails to move for disqualification, any error raised on appeal should be examined for plain error review, which will likely turn on whether the party is able to demonstrate prejudice. Lastly, if a litigant makes an excessive campaign contribution in order to force a strategic recusal, the opposing party should be allowed to waive this manufactured conflict. Any decision to waive recusal should be made outside the presence of the judge or court personnel, pursuant to ABA Model Code of Judicial Conduct Rule 2.11(C).

RSP: Parties should have the opportunity to waive recusal, particularly where a manufactured conflict is at issue. Still, it is understandable that such a process should require some safeguards. It is too easy to imagine a situation where recusal would be appropriate, and a judge asks counsel whether he or she would be willing to waive recusal in open court in a jurisdiction where the applicable rules do not contain an analogue to Rule 2.11. In that situation, particularly when counsel is likely to appear in that courtroom again and again, human nature would make it difficult to insist on recusal, even though the client’s best interests may warrant that position. Voluntariness would be open to question, then.

6. Are recusal motions more likely in elected judiciaries than appointed?

NRS: Generally, no. Because recusal motions may be filed for any number of reasons, they will continue to be filed under both systems. Of course, recusal motions based on campaign contributions alone will only be filed in jurisdictions with elected judiciaries. Because Caperton did not change the law, I would advise against amending codes of conduct provisions to capture any perceived “new” rule on campaign contributions. Doing so may be interpreted by litigants as an invitation to file more recusal motions. Those responsible for drafting statutes or codes of judicial conduct should take care not to expand the holding of Caperton. Drafters should keep in mind Caperton’s purpose was to provide a constitutional check on existing rules that are already more stringent. Again, any amendments must provide clear standards to guide litigants and judges.

RSP: While a campaign pledge or promise or an enormous contribution may raise disqualification issues in elected systems that do not exist in appointive ones, the potential for conflicts generally exists regardless of the selection system. We have seen judicial elections become more and more like campaigns for political office. The danger that poses is that candidates will make pledges or promises that compromise their impartiality. If that approach to campaigning becomes more common, the balance of recusal motions may tilt more in the electoral direction.

7. Under what circumstances do you consider (as a lawyer requesting/as a judge granting) recusal?

NRS: As previously mentioned, recusal decisions also must balance a judge’s duty to hear cases against the alleged basis for disqualification. In my view, Rule 2.11 of the ABA Model Code of Judicial Conduct and similar state statutes and codes provide adequate guidance for making recusal determinations.

RSP: I would make a motion to disqualify when a judge seems to have committed extrajudicially to a position at issue in the case and seems not to be capable of hearing the evidence or arguments to the contrary, or when the judge’s self-interest in a particular result is palpably evident. These are very rare events.

8a. Do judges react unfavorably to lawyers who seek their recusal?

NRS: Not in my experience. A recusal motion is one procedural step during the course of litigation, and judges are equipped to rule on this type of motion as with every other motion. There is only one circumstance where some judges have reacted unfavorably: If a lawyer brazenly seeks blanket disqualification for case-specific (not judge-specific) reasons—for example, where a defense lawyer routinely seeks disqualification of any judge who had generally practiced as a plaintiff’s lawyer and vice versa. This practice would seem to be overreaching and not in line with rules governing disqualification.

8b. Do lawyers consider the possible reaction of a judge before considering a motion to recuse?

RSP: A lawyer cannot help but consider a judge’s likely reaction to a disqualification motion. That is why, whenever the decision is made to make such a motion, the motion is usually written in a very vanilla, straightforward, and nonaccusatory fashion.

9. If a motion to recuse is denied, is the ensuing proceeding likely to be awkward?

NRS: Not from the judge’s perspective. Again, a recusal motion is only one procedural step in the process.

RSP: Not necessarily. It is even more likely that the judge will bend over backwards to make sure that the lawyer and party do not think that the motion was justified by being even more solicitous of their side than usual.

10a. As a judge, what advice would you expect a lawyer to heed in thinking about judicial disqualification?

NRS: When considering and moving for disqualification, always follow the relevant rules. Use good judgment in seeking disqualification, and do not use it as an opportunity to forum shop your way to getting in front of another judge.

10b. As a lawyer, what advice would you expect a judge to heed in thinking about judicial disqualification?

RSP: I would hope the judge would put him- or herself in the party’s shoes when thinking about whether statements, conflicts, or circumstances would seem to make the judge seem less than fully impartial. It is easy to assume that you always endeavor to be fair, regardless of the cause of action or parties involved. Knowing your own inclinations, however, is not the perspective that an outsider has, and not the perspective that contributes to the public confidence and respect that the courts must build.


1. 556 U.S. 868 (2009).

2. Id. at 877.

3. Id. at 884.

4. Id. (emphasis added).