US Supreme Court Split Decision Says Judges Must Recuse For Election Donations - What Will The Effect Be In Nevada?

CAPERTON ET AL. v. A. T. MASSEY COAL CO., INC., ET AL. No. 08–22. Argued March 3, 2009—Decided June 8, 2009

On June 8, 2009, the US Supreme Court issued a split 5-4 decision (click HERE) regarding the standards for a judge's recusal in cases where one of the parties have made substantial election donations to a judges' campaign. The Decision was written by Justice Kennedy (joined by the Court's liberal wing). Justice Roberts wrote the dissent, joined by Justices Scalia, Thomas & Alito. Justice Scalia wrote an additional dissent.

The question presented for the Court was whether a West Virginia Supreme Court Justice's (Benjamin) failure to recuse himself from participation in his principal financial supporter's case violated the Due Process Clause of the Fourteenth Amendment. The Court held that Due Process requires recusal under these circumstances and issued clarification on the standards for a judge's recusal for due process compliance.

Prior to this decision, case law clarification of the Due Process Clause, other than the "actual bias" standard, centered around whether "the probability of actual bias on the part of the judge or decisionmaker [was] too high to be constitutionally tolerable." Withrow v. Larkin, 421 U.S. 35, 47. To ensure due process of law, one of the main ideas behind recusal has been for the judge to make sure that "[e]very procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof . . . or which might lead him not to hold the balance nice, clear and true" is excluded from the decisionmaking process. Tumey v. Ohio, 273, U.S. 510, 532. The proper constitutional inquiry was not "whether in fact [the justice] was influenced," Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 825, but "whether sitting on [that] case . . . 'would offer a possible temptation to the average . . . judge to . . . lead him not to hold the balance nice, clear and true.'" ibid. Likewise, "no man is permitted to try cases where he has an interest in the outcome." In re Murshison, 349 U.S. 133, 136. The Court has instructed that the circumstances of the case and the prior relationship between the judge and the parties should be assessed with regard to recusal, but advised nothing further. id. Thus, there has never been an "objective" component to the test when assessing election contributions. It was never defined with any sort of precision. That has changed with the recent US Supreme Court decision.

The Court has now indicated that judges should look to the total amount of the contributions being made in comparison to the total amount of contributions made on the campaign; to the total amount spent in the election; and to the apparent effect of the contribution on the outcome of the election. In its simplest terms, if the amount is large, if the contributor is one of the main donators to the campaign, or if the contribution made the difference in the election, the judge should recuse. It is not whether the contribution was a necessary part of the victory, but whether the contribution had a significant and disproportionate influence on the outcome. That is what turns the corner from subjective bias, to actual bias. The central issue recusal centers on the risk that some kind of influence is created by the contribution of a campaign donor. If it is sufficiently substantial, ruling on the case "must be forbidden if the guarantee of due process is to be adequately implemented." Withrow, 421 U.S., at 47.

Effect in Nevada (Clark County)

It is well documented that "[r]aising the most money correlate[s] with victory in 68 percent of judicial races in 2006, down from 85 percent in 2004." (See NY Times 2007 Article HERE). Special interest money has become "a permanent national campaign against impartial justice,” according to the report released by the Justice at Stake Campaign. id. (Emphasis added)

So, it is understandable why, as sources have indicated, this case has been monitored closely by most of the judges in the 8th Judicial District Court of Nevada for some time now. In fact, it became the hot-bed topic in the Courthouse all day after release. Why? Well, that's likely because it has been repeatedly violated by many of the judges in order to keep the money and the support rolling in . . . so they can keep their job, if you still haven't figured it out, yet.

It has been a long standing rule in Nevada that being a contributor to a judicial election campaign and being a party or attorney before the same judge does not require recusal of the judge from the case. Surely this sounds crazy to normal "non-attorney" folks. In fact, up until this last election if an attorney was running against a judge for that seat, the attorney was allowed to remove the judge from his/her cases. However, that ended pursuant to a recent Advisory Opinion (JE06-005) by the Nevada Commission on Judicial Discipline ("NCJD") holding that recusal was not required in cases of attorney challengers for judicial election.

While the NCJD Opinion is only advisory, it is followed as law by the Eighth Judicial District and likely others. The NCJD opined that "A judge is not disqualified from presiding over a pending case under Canon 3E(1) of the Nevada Code of Judicial Conduct simply because the attorney for a party is the judge's opponent in an upcoming judicial election."

However, the dissent got it correct here, seemingly more in line with the US Supreme Court than with Nevada, stating, "A reasonable person would believe that an attorney opposing a judge - trying to take that judge's job - may question the impartiality of a judge or may have bias or prejudice against that party's attorney. Judges are human. If a judge's livelihood is being threatened by a lawyer running against him or her, the appearance of lack of impartiality must exist. Even if a judge and attorney are able to place their professional responsibilities above their personal biases, it is inevitable that the parties will perceive an appearance of bias or impropriety. This leaves both parties of the litigation with a legitimate basis for questioning the legal process."

Where did this leave Nevada? It left Nevada with judges that can rule on cases that involve their campaign contributors, no matter the size of the contribution and with judges that can rule on cases that involve their challengers. Certainly this "offer[s] a possible temptation to the . . . judge to forget the burden of proof" and generates a biased decisionmaking process. Tumey 273 U.S. at 532. Sounds a lot like the dissent in the NCJD Opinion. Nevada needs to rethink this one if we want to stay in step with the US Supreme Court.

For the same reasons that it impacted the West Virginia Justice, both the contributor and the challenger are the main entities that help or hurt the judges' ability to keep their job, arguably the MOST IMPORTANT issue to the judge in any case. What more "bias" do you need to recuse? If the judge helps (rules in favor of) the contributor, they benefit personally, and if the judge hurts (rules against or sanctions) the challenger, they benefit personally. That is too much incentive.

We saw instances of this situation during this last election where the highly talked about race between Judge Leavitt and her challenger, local attorney Kurt Harris, sparked a lot of media attention and some family threats. Reportedly, one of the Defendants (or their counsel) was a contributor of Judge Leavitt, while a family friend of Judge Leavitt was a contributor to Mr. Harris. Apparently, threats were issued from Leavitt family members to Mr. Harris' contributors and Mr. Harris sought recusal of the Judge, as the challenger. There was also a dispute about Mr. Harris already having overturned Judge Leavitt on an appeal in the very same case. The result was a lot of unnecessary drama in and out of the courtroom and in and out of the media. Certainly, this could not have benefited the Clark County legal system's reputation. This drama looks to have only occurred because Mr. Harris was the challenger to Judge Leavitt and appeared in front of her on a case, while a contributor to the Judge's campaign was a party or the attorney. Mr. Harris eventually withdrew from the case and Judge Leavitt later won the race by a very large margin.

Will any of this change Nevada? Who knows. Incidentally, the Nevada Legislature, the week prior to the release of the US Supreme Court Decision, placed a bill on the ballot for 2010 that will amend the Nevada Constitution ending judicial elections and allowing for governor judicial appointments and retention elections. (Click HERE for our story; Click HERE for the bill). It seems that the motivation of the bill would have been unnecessary if the judges in Nevada would have paid more attention to the notably vague standards enunciated in previous US Supreme Court decisions seeking to uphold the integrity of the office (or, of course, the dissent in the NCJD Advisory Opinion). Instead, it appears that the standard has more readily been to not recuse oneself from cases when there is a potential bias. It is likely that the bill would have never been introduced if Nevada Judges had more seriously and more HONESTLY considered "whether sitting on [a] case . . . 'would offer a possible temptation to the average . . . judge to . . . lead him not to hold the balance nice, clear and true.'" Aetna 475 U.S. at 825.

So, now Nevada is strangely left with a "voter's decision" on whether they will give their power to elect judges to the governor. What is most ironic is that the same Nevada voters that are being accused of being incompetent, when it comes to electing judges, are now being asked to vote on who gets to appoint judges. Why? So, judges don't have to be faced with recusing themselves from cases where their contributors are parties/attorneys. It appears that everyone has finally admitted, all the way to the US Supreme Court, that judicial election contributions are payoffs.

If the Nevada voters can't make the right decision in choosing a judge and if judges can't make the right decision in recusing themselves when biased, how on earth are voters supposed to make the right decision when asked to give their power away. Nobody else seems to want to . . .

For other commentary on the Decision:

Jonathan Adler @ The Volokh Conspiracy

Wall Street Journal Blog

Legal Ethics Forum

The West Virginia Record

Rick Pildes @ Balkinization

Las Vegas CBS, Ch. 8