The recent U.S. Supreme Court decision requiring judges to recuse themselves from cases involving hefty donors is likely to have wide ranging effects in the 28 states that hold contested elections for judges.

The ruling in Caperton v. A. T. Massey Coal Co. (PDF) could result in more attorneys filing recusal motions, a push for changes in campaign finance rules and an increased number of judges stepping away from cases involving donors for fear their rulings could face constitutional scrutiny.

“I think the eyes of America are focused on this issue, and people are really concerned,” said Bruce Stanley, a partner in the Pittsburgh office of Reed Stanley who represented the plaintiff at the trial level, and also served as co-counsel on the briefs filed with the Supreme Court.

“When average citizens hear about our case, there is no question in their mind that a judge should not sit on the bench before a $3 million campaign donor.”

Million Dollar Donation

The case involved an appellate judge who cast the deciding vote overturning a $50 million verdict against a company. 

The judge’s ruling came after the company’s CEO gave $3 million in direct and indirect contributions to the judge’s election campaign. That amount was more than half the total spent in the campaign.

In a 5-4 decision, the Supreme Court held that the judge’s failure to recuse himself violated the Due Process Clause. 

Justice Anthony Kennedy, writing for the majority, dismissed the judge’s argument that he was capable of rendering an unbiased opinion. The opinion set forth an objective standard for apparent bias, holding that actual bias need not be shown to establish a due process violation.

“The difficulties of inquiring into actual bias, and the fact that the inquiry is often a private one, simply underscore the need for objective rules,” Kennedy wrote. “The judge’s own inquiry into actual bias, then, is not one that the law can easily superintend or review, though actual bias, if disclosed, no doubt would be grounds for appropriate relief.”

While the court held that the $3 million here clearly established an unconstitutional appearance of bias, it declined to create a bright line rule for exactly where the line is drawn. 

Stanley said the Supreme Court was right to leave a bit of leeway.

“A bright line rule is going to be a practical impossibility,” he said. “The impact of $3 million spent in a small state like West Virginia will be different than the impact of the same amount spent in New York City or in Southern California.” 

Big Money Elections

The ruling brings attention to the growing amount of money spent on judicial elections, which occur in the majority of the nation’s states. 

Appellate judges are selected in contested elections in 22 states. 

In Alabama, Illinois, Louisiana, North Carolina, Pennsylvania, Texas and West Virginia, appellate judges are elected in partisan contests. In New Mexico, judges are initially chosen in partisan elections, but then only face uncontested retention elections.

In 14 other states, including Michigan, Minnesota, Mississippi, Wisconsin and Oregon, appellate judges are elected in nonpartisan contested elections — although in some states parties are involved with the nominating process. 

At the trial level, 28 states select judges in partisan or nonpartisan contested elections. 

Between 2000 and 2008, more than $200 million was spent on state appellate court elections, according to data from the Washington-based group Justice At Stake. That is more than twice the $85 million spent in all of the 1990s. 

And the amount continues to grow, according to judicial advocates.

“There has been an unprecedented flood of money into judicial elections in the states,” said Susan Liss, director of the Democracy Program at the Brennan Center for Justice.

But the Supreme Court’s ruling “makes clear that campaign contributions must not be permitted to undermine the impartiality of the courts.”

Some critics of privately-financed judicial elections say the decision is a hollow victory unless federal and state legislators adopt a system of public financing. 

“This decision underscores the impossible place our elected officials find themselves when they are trying to raise significant amounts of money from those who have a vested interest,” said Nick Nyhart, president of DC-based group Public Campaign, which advocates public election financing.

Flood of Recusals?

Attorneys in election states expect to see more recusal motions.

“I think you may get more of these motions being filed based on things like campaign finance reports,” said Don Cruse, an Austin, Texas appellate litigator who worked in the state’s solicitor general’s office before going into private practice. 

But Stanley said that he expects attorneys to be cautious. The world of state-level trial and appellate practice, he said, is far too small. 

“A lawyer would never consider a recusal motion unless he believes he has a very strong basis for having that motion granted,” Stanley said.

He noted that in 20 years of practice, he has only filed two recusal motions — both in the Caperton case. 

“You are not going to have a lot of friends in that courtroom if you are constantly moving to recuse judges.”

Cruse said the motions that are filed will be carefully drafted.

“I think they may be written in a way that is more civil than if they were written to attack the integrity of the justice,” he said.  

State Rules

The Caperton ruling is the first time the Supreme Court has addressed Due Process concerns over the appearance of bias. 

But many states already have rules requiring judges to step down from cases where there is an appearance of bias. And in some states, including Michigan and Wisconsin, courts have already begun reviewing their recusal policies and considering proposals to tighten the standard for when a judge must remove him or herself from a case.

Even in states with more discretionary recusal standards, the high court ruling may encourage more judges to err on the side of caution rather than risk their rulings being found unconstitutional.

“It might lead more state judges to recuse themselves,” Cruse said.  “Now that there is this test for appearance of bias relating to objective standards, a judge can say: ‘I recognize there are these objective factors, and if there is an appearance of bias, I will step aside.’”