When Should Judges Recuse Themselves?
Wednesday, June 17, 2009
Should elected judges recuse themselves from cases involving people who contributed to their campaigns? KPBS legal analyst Dan Eaton tells us what the Supreme Court thinks about this issue.
DOUG MYRLAND (Guest Host): I'm Doug Myrland, sitting in for Maureen Cavanaugh and you're listening to These Days in San Diego. Well, should elected judges recuse themselves from cases involving people who contributed to their campaigns? KPBS legal analyst Dan Eaton joins us to discuss what the Supreme Court recently said about this issue. Dan is a San Diego attorney, often shares his insights on legal issues on this program, and welcome once again, Dan.
DAN EATON (Attorney and Legal Analyst): Thank you. Hi, Doug.
MYRLAND: Well, last week the Supreme Court ruled that state court judges elected to their posts should not be involved in deciding appeals brought by some of their major campaign contributors.
MYRLAND: So what can you tell us about this specific case?
EATON: It was a case actually, Doug, out of West Virginia and what it involved was a person who was the CEO of a major coal company in West Virginia who lost a very, very large verdict. It was a $50 million verdict against his company by some smaller coal operatives. So what he said was, I'm going to – the CEO of this company said, I'm going to try to get elected a justice to the Supreme Court of Appeals who'll ultimately hear this appeal and try to get a more favorable ruling on appeal, try to get the verdict thrown out. So what he did was he contributed about three million dollars, all told, to get an attorney elected and defeating a sitting justice of West Virginia's highest court. The issue then was that particular justice who was elected—the attorney won the election by fewer than 50,000 votes—ultimately, he was elected so the question was then could he properly sit and hear the appeal of this major campaign contributor who had contributed so heavily, potentially anyway, to his election. It's not clear what affect the three million dollars had but you've got to believe…
MYRLAND: It couldn't hurt.
EATON: It couldn't hurt, that's exactly right. So the question was whether this particular attorney, now justice, had to get out of the case, recuse, as you said. And the question was whether it was required as a matter of Constitutional imperative. What ultimately happened was the West Virginia justice said, no, I'm not going to get out of this case. I am going to sit and review the $50 million verdict that this major campaign contributor lost. And there are five members of the West Virginia Supreme Court and they ultimately voted three to two to throw out the $50 million verdict. So the question then was whether the person who had won the $50 million verdict that had been reversed was denied a fair hearing because one of the people who decided the appeal had been the beneficiary of such a large amount of campaign contributions by the person he was opposing, or the CEO of the company said he was opposing.
MYRLAND: So the person who lost the case took it all the way to the Supreme Court.
EATON: The West Virginia Supreme Court or you're talking about the West…
MYRLAND: The U.S. Supreme…
EATON: The U.S. Supreme Court ultimately, that's right, because he said, well, the West Virginia Supreme Court obviously lost his $50 million and took it to the U.S. Supreme Court.
MYRLAND: And the Supreme Court said, yes, we will take this case and we will rule on it.
MYRLAND: And they did.
EATON: They did.
MYRLAND: And tell us what they said.
EATON: Right. What ultimately happened was that the U.S. Supreme Court, by a very narrow five to four vote, Doug, said yes, the person who had won this $50 million dollar verdict that was thrown out on appeal by West Virginia's highest court, concluded this judge – justice that the person who lost the $50 million had contributed so mightily to get elected, that he had been denied a fair hearing by having this justice sit in review of the case and, therefore, as a matter of Constitutional due process, this particular justice should have stepped aside and let another person sit in his place to hear the review. Not because, by the way, Doug, there was any actual bias. The U.S. Supreme Court specifically didn't reach that question.
MYRLAND: Well, that's among the many interesting parts…
MYRLAND: …of this case. I think that's one of the most interesting. So they didn't actually find that his vote had, in fact, been bought.
EATON: No, they did not. They said they didn't have to find whether there was actual bias. All they said is, you have to find whether there's a reasonable probability that someone in the same position would be tempted to rule in favor of your benefactor. And the Supreme Court said, there's a reasonable probability, a reasonable likelihood, that someone couldn't resist that temptation and, therefore, this particular justice had to step aside, whether he was actually biased or not. They said they have no reason to doubt his statement because he did issue an opinion, this West Virginia justice, that he was not actually biased but they said we don't have to reach that question. The only question is whether it is likely an objective – a reasonable justice in his position would have been tempted, and said that was enough.
MYRLAND: Now there was a strong dissenting opinion and the person who wrote it was Chief Justice John Roberts. What was his concern with the majority opinion?
EATON: Well, his bottom line, Doug, was that, look, the cure might be worse than the disease. What he said was that, in the past, the Supreme Court, the U.S. Supreme Court, that is, has only required this kind of stepping aside or recusal in very, very narrow circumstances such as where a judge has a financial interest in the case or was a prosecutor in a criminal appeal that was subsequently heard. And they said now we're in this sort of weird realm of, well, is it likely that there is a potential for bias and what exactly does that mean? So Chief Justice Roberts, on behalf of the three other dissenters, came up with 40 questions that occurred to him on the top of his head that, he said, would have to be answered in future cases. And he warned that there were likely to be a whole lot of motions, now called Caperton Motions, he says, that will seek to get rid of judges who were the beneficiaries of large campaign contributions.
MYRLAND: Now when I was getting ready for this program…
MYRLAND: …I'm not a lawyer, I don't play one on the radio, but I've certainly been on some boards…
MYRLAND: …and some activities and it's not unusual when there's even a hint of a conflict of interest that somebody in a responsible position will recuse themself (sic) from a vote. And I kept thinking why wouldn't a judge play it safe and go ahead and recuse oneself even if there's even a suggestion of impropriety? What have you got to gain, I guess, by not doing so, assuming you're not corrupt and assuming your vote hasn't been bought. What are some of the reasons that a judge might legitimately not recuse him or herself even if there's some sort of hint of impropriety?
EATON: Well, of course, what you've just said raises a whole bunch of different issues including the appearance of impropriety and all the rest of that. But Chief Justice William Rehnquist, some years ago, wrote an opinion that if a judge has the – if the judge is not required to recuse or step aside, then the judge is required to decide the case. In other words, it's a fine line. If it's not mandatory that the judge step aside then it is mandatory that the judge decide the case. So it is tricky. So falling on the safe side is not quite as easy under that construction as you think because the judge doesn't have the luxury under at least Rehnquist's construction to say, you know what, I'm going to play it safe and step aside. Judges are required to decide cases that they are not disabled from deciding. And so that's why a judge might not play it safe, as you said.
MYRLAND: So we can't apply the same sort of ethical societal rules that we normally apply to a board or another body of decision makers. There really has been this kind of specific narrow instruction coming from the Supreme Court.
EATON: Well, that was one justice. Obviously, Justice Rehnquist said that but there are judges, absolutely, that say – The test, at least under California, is whether a reasonable person, aware of all of the facts, would entertain a doubt as to the judge's ability to be impartial. That's the test, the sort of catch-all test, under whether a judge should step aside. So there are judges who play it safe and say, you know what, I think there's at least a reason – a reasonable person would at least entertain a doubt even though I'm surely convinced that I could be impartial, that I might not be so I'm going to step aside. It's not fair to say that there's a sort of narrow rule. I was just giving you what Chief Justice Rehnquist said. The reason I mentioned that, by the way, is that because judges, after all, are paid to decide the cases that come before them and if they aren't disabled from deciding them, they ought to decide the cases. But in a case like this, which even the majority in the Caperton case said it was pretty egregious, you're talking about millions of dollars. By the way, only a small part of that was actually given directly to the candidate. They have campaign contributions in West Virginia of a thousand dollars. Most of the money was spent in independent expenditures but this was a pretty big amount of money, obviously, and they said these are special facts and we expect that the Constitutional rule will only come into play very rarely. The judicial ethics rules that require judges to step aside when there's an appearance of impropriety are more likely to govern.
MYRLAND: We're speaking with Dan Eaton, who's a San Diego attorney and often shares insights on legal issues on These Days. And this is not just about West Virginia and about the Supreme Court. This has a relevance in California as well because our judges are elected.
EATON: They are elected, as a matter of fact, in a sense. I mean, most of the judges, of course, are appointed at one point or another in their career, although some, of course, in the trial court are directly elected when there is a vacancy and the judge – the governor has not appointed the vacancy. But even judges that are appointed by the governor are subject to election. The trial judges stand for election every six years, and judges on the court of appeal and the Supreme Court stand for what are called retention elections every twelve years. In fact, Doug, some people are very surprised to learn that there are actually no limits on contributions in judicial races, which is a very interesting issue and so forth. So judges certainly are subject to – trial judges, of course, every six years are subject to getting challenged and then they run a campaign.
MYRLAND: Now I believe you've noted also that many judicial candidates will voluntarily put a limit on contributions.
EATON: They really will. They're going to say – and I obviously have been the recipient of several solicitations. I don't give campaign contributions of any kind since I started working with the media such as These Days and so forth. So you can stop sending those letters. But there is a limit of – a lot of judges will voluntarily – or judicial candidates will voluntarily say I'm going to limit it to $250.00 or $150.00 or what have you and that's, of course, to avoid this whole appearance that one person is buying the race.
MYRLAND: Now is there an effort underway to make that less than voluntary and actually put some legal limits on contributions?
EATON: Well, in a manner of speaking, there is. Actually – And the timing of the Caperton decision is very interesting because the Commission for Impartial Courts, which was a commission that was appointed by Chief Justice Ron George of the California Supreme Court, just issued its draft report in I believe it was May, actually, and they just issued their draft report and you've got until early July to get your comments. It's a final report and this commission, which includes, by the way, several San Diegans including the presiding justice of our Court of Appeal, Justice McConnell and several distinguished members of our local bar, have actually weighed in on this whole idea of judicial campaigns and have said, look, we're not going to recommend that there be any limits on campaign contributions. What we are going to do, says the report, is the functional equivalent of that and that is, we are going to say there has to be automatic disqualification if someone – if a judge gives fifteen hundred dollar – if a judge receives $1500.00 or more from a person who is before them, or an attorney. Because, as I said, as I have been the recipient of these solicitations from judicial candidates, obviously where is a judicial candidate going to turn for contributions? The bar. They don't have a natural constituency like city council people and county supervisors, so they're going to respond – they're going to reach out to the legal community. There's nothing inherently wrong with that but then the question is should they be disqualified if they receive a lot of money from one particular source. And what this Commission for Impartial Courts, whose final draft opinion is out for comment, is saying is that, really, yeah, they probably should. There has to be an automatic disqualification if they receive $1500.00 from one source in front of them, actually.
MYRLAND: Well, Dan, thank you very much for outlining what I think is a really interesting point that at least I never considered before about judges and recusal and how the law actually works.
EATON: Doug, there's one other point, though, which is interesting because while a judge has to recuse himself under this draft report for $1500.00 or more given to him, what about $1500.00 given to an opponent? And so there are all kinds of unanswered questions that Chief Justice Roberts raises, so I appreciate your giving me the time.
MYRLAND: Dan Eaton is a local attorney and often analyses legal issues on These Days. We'll continue the discussion in a little bit and thank you very much for listening. And I'm Doug Myrland for These Days.