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Caperton v. Massey

Justice Brent Benjamin of the Supreme Court of Appeals of West Virginia refused to recuse himself from the appeal of a $50 million jury verdict in this case, even though the CEO of the lead defendant spent $3 million supporting his campaign. Did Benjamin’s failure to recuse violate the Due Process Clause?

Published: June 8, 2009


On June 8, 2009, the U.S. Supreme Court issued its ruling in Caper­ton v. Massey.  In a 5–4 opin­ion writ­ten by Justice Kennedy, the court concluded that, given the “seri­ous risk of actual bias,” the Due Process Clause required the recusal of Judge Brent Benjamin.  Case back­ground can be found below the list of amicus briefs on the merits.   

The legal community greeted news of the decision with excite­ment.  H. Thomas Wells, Jr., Pres­id­ent of the Amer­ican Bar Asso­ci­ation, “applauded the decision.” Bert Branden­burg, exec­ut­ive director of Justice at Stake, deemed the decision “a tremend­ous victory.”  The Bren­nan Center’s James Sample hailed the decision as a “victory…­for the rule of law.”    

Excerpts from the opin­ion, and briefs filed in the Supreme Court, follow below.

Justice Kennedy, writ­ing for the major­ity:

“We conclude that there is a 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.” 

“Justice Benjamin did under­take an extens­ive search for actual bias.  But, as we have indic­ated, that is just one step in the judi­cial process; object­ive stand­ards may also require recusal whether or not actual bias exists or can be proved…The fail­ure to consider object­ive stand­ards requir­ing recusal is not consist­ent with the imper­at­ives of due process.”

“Our decision today addresses an extraordin­ary situ­ation where the Consti­tu­tion requires recusal.”

Justice Roberts, dissent­ing:

“…a ‘prob­ab­il­ity of bias’ cannot be defined in any limited way. The Court’s new ”rule" provides no guid­ance to judges and litig­ants about when recusal will be consti­tu­tion­ally required. This will inev­it­ably lead to an increase in alleg­a­tions that judges are biased, however ground­less those charges may be."

Justice Scalia, dissent­ing:

“The Court today contin­ues its quix­otic quest to right all wrongs and repair all imper­fec­tions through the Consti­tu­tion.  Alas, the quest cannot succeed – which is why some wrongs and imper­fec­tions have been called nonjus­ti­ciable.”  

Case History in the U.S. Supreme Court

On Novem­ber 14, 2008, the U.S. Supreme Court agreed to hear Caper­ton v. Massey. The case was argued March 3, 2009–click here to down­load tran­script.

To down­load the Peti­tion­ers brief, filed Decem­ber 29, 2008 with Theodore B. Olson as coun­sel of record, click here. Filed Janu­ary 28, 2009, the Respond­ents brief can be down­loaded here. Addi­tion­ally, the reply brief for Peti­tion­ers, filed Febru­ary 24, 2009, can be down­loaded here.

Brief of the Confer­ence of Chief Justices as Amicus Curiae in support of neither party, avail­able here:

“The Confer­ence takes the posi­tion that, under certain circum­stances, the Consti­tu­tion may require the disqual­i­fic­a­tion of a judge in a partic­u­lar matter because of extraordin­ar­ily out-of-line campaign support from a source that has a substan­tial stake in the proceed­ings.”

Amicus Briefs in Support of Peti­tion­ers, with Excerpts

Posted Janu­ary 5, 2009

Brief Amicus Curiae, 27 former state Supreme Court Chief Justices and Justices, avail­able here:

“Amici uniformly believe that the parti­cip­a­tion of Justice Benjamin in this case created an appear­ance of impro­pri­ety. All amici parti­cip­at­ing in this brief would have recused if they had benefited from the level and propor­tion of inde­pend­ent expendit­ures by the CEO of a party to a case pending before the court.”

Brief Amicus Curiae, The Commit­tee for Economic Devel­op­ment, Intel Corp., Lock­heed Martin Corp., Pepsico, Wal-Mart Stores, and Trans­par­ency Inter­na­tional USA, avail­able here:

“Public confid­ence in judi­cial integ­rity and in the even­han­ded­ness of the judi­cial system is a crit­ical element of Amer­ica’s stable, pros­per­ous busi­ness climate.” Justice Benjamin’s refusal to recuse himself “created an appear­ance of bias that would dimin­ish the integ­rity of the judi­cial process in the eyes of any reas­on­able person.”

A U.S. Supreme Court decision to require Justice Benjamin’s recusal “would signal to busi­nesses and the general public that judi­cial decisions cannot be bought and sold.”

Brief Amicus Curiae, The Center for Polit­ical Account­ab­il­ity and Zick­lin Center for Busi­ness Ethics Research at the Whar­ton School, avail­able here:

“The escal­a­tion of judi­cial campaign spend­ing traps busi­ness lead­ers into a clas­sic 'pris­on­er’s dilemma.' For ethical and finan­cial reas­ons, most corpor­a­tions would prefer to avoid spend­ing money … for a seat on a court where it has a matter pending … In today’s elec­tion envir­on­ment, however, a corpor­a­tion must consider the like­li­hood that its oppon­ent in high-stakes litig­a­tion may actively support one or more of the judges that will hear its case.”

“Mandat­ory recusal is neces­sary to stanch this campaign spend­ing arms race and main­tain the integ­rity of the judi­cial system. The economy and the rule of law cannot thrive without robust safe­guards of judi­cial impar­ti­al­ity.”

Brief Amicus Curiae, The Bren­nan Center for Justice, the Campaign Legal Center, and the Reform Insti­tute, avail­able here:

“The $3 million in expendit­ures; the fact that those expendit­ures repres­en­ted more than all other finan­cial support for Justice Benjamin combined; the sole inter­ested source of those funds; the timing of the expendit­ures; and the other facts of this case are so egre­gious-by today’s stand­ards at least-that they offer the Court the ideal oppor­tun­ity to rein­force one of the most funda­mental rights in any system based on the rule of law: the right to a fair hear­ing before an impar­tial arbiter.”

Brief Amicus Curiae, The Amer­ican Bar Asso­ci­ation, avail­able here:

“The magnitude and timing of the contri­bu­tions to Justice Benjamin’s campaign invite the Court to delin­eate the consid­er­a­tions that a judge should make in determ­in­ing whether recusal is required by the Due Process Clause when a campaign contrib­utor is a party in a case before the judge.”

Brief Amicus Curiae, The Amer­ican Academy of Appel­late Lawyers, avail­able here:

“As long as the states continue to elect judges, contri­bu­tions to judi­cial campaigns will remain neces­sary. … Never­the­less, the magnitude of Mr. Blanken­ship’s contri­bu­tion to Justice Benjamin’s campaign is so great that it is easy to say it crossed the line of impro­pri­ety.”

Brief Amicus Curiae, The Justice at Stake Campaign (with support from 27 govern­ment reform groups, includ­ing Common Cause, the League of Women Voters and the Amer­ican Judicature Soci­ety), avail­able here:

“The facts of this case are extraordin­ary … A ruling by the court that the facts of even this case do not present a consti­tu­tion­ally signi­fic­ant threat to equal justice would signi­fic­antly … weaken state reform efforts.”

Brief Amicus Curiae, The National Asso­ci­ation of Crim­inal Defense Lawyers, avail­able here:

“Ruling for Peti­tion­ers here, even on narrow and fact-specific grounds, will send a much-needed signal that judi­cial elec­tion­eer­ing, though gener­ally valid, may in some partic­u­lar cases cross a consti­tu­tional line and require recusal to ensure the actu­al­ity and appear­ance of an unbiased judge.” 

Brief Amicus Curiae, The Amer­ican Asso­ci­ation for Justice, avail­able here.

“The record in this case makes plain that the exor­bit­ant finan­cial efforts to influ­ence the elec­tion of a judge who would inev­it­ably sit on the appeal of the prin­cip­al’s pending litig­a­tion required that judge’s recusal as a matter of due process.” 

Amicus Briefs in Support of Respond­ents

Posted Febru­ary 4, 2009

Brief Amicus Curiae, Attor­ney General of Alabama and Six Addi­tional States, avail­able here.
Brief Amicus Curiae, Ten Former and Current Chief Justice and Justice, avail­able here.
Brief Amicus Curiae, James Madison Center for Free Speech, avail­able here with appendix here.
Brief Amicus Curiae, Center for Compet­it­ive Polit­ics, here.
Brief Amicus Curiae, Law Profess­ors Ronald D. Rotunda and Michael R. Dimino, avail­able here.


Justice Brent Benjamin of the Supreme Court of Appeals of West Virginia refused to recuse himself from the appeal of the $50 million jury verdict, even though the CEO of the lead defend­ant spent $3 million support­ing his campaign for a seat on the court-more than 60% of the total amount spent to support Justice Benjamin’s campaign-while prepar­ing to appeal the verdict against his company. After winning elec­tion to the court, Justice Benjamin cast the decid­ing vote in the court’s 3–2 decision over­turn­ing that verdict.

Accord­ing to Theodore B. Olson, former Soli­citor General of the United States and coun­sel of record for the Peti­tion­ers, “The improper appear­ance created by money in judi­cial elec­tions is one of the most import­ant issues facing our judi­cial system today. A line needs to be drawn some­where to prevent a judge from hear­ing cases involving a person who has made massive campaign contri­bu­tions to bene­fit the judge. We certainly believe that, in this case, acting Chief Justice Benjamin crossed that line.”

Down­load Peti­tion for Writ of Certi­or­ari here.

“The sole inter­ested source of money, the enorm­ous sums, and the timing of the expendit­ures in this case consti­tute an egre­gious example of a national trend-brazen attempts to purchase influ­ence in pending cases,” said James Sample, coun­sel for the Bren­nan Center.  “Ted Olson and the peti­tion­ers are squarely on the mark-this case is far beneath the floor of the most basic notions of due process.”

Press and Comment­ary on this case can be found here.

Addi­tional analysis of the case and its poten­tial impact on judi­cial disqual­i­fic­a­tion reform in the states can be found here

Docu­ments and News of Note

8/16/08, Peti­tion­ers decided to bring Justice Benjamin’s concur­ring opin­ion to the Court’s atten­tion, and filed a Supple­mental Brief, avail­able here.

9/3/08, Respond­ents file Brief in Oppos­i­tion to Cert, avail­able here.

9/16/08, Peti­tion­ers file Reply Brief for Cert, avail­able here.

9/7/08, in an edit­or­ial, the NY Times calls for Massey to be added to the Court’s docket.

11/14/08, the Supreme Court grants cert.

2/26/09, edit­or­ial from Tony Mauro of USA Today asks, “Can money obstruct justice?”

Filings in Support of Supreme Court Cert

Along with the brief filed by the Bren­nan Center, CLC, and the Reform Insti­tute, several other amicus briefs were also filed on August 4, 2008 in support of the Peti­tion­ers. Excerpts included with links to the briefs below.

Brief Amicus Curiae, Bren­nan Center, Campaign Legal Center & Reform Insti­tute, avail­able here:

"Amici do not suggest that any campaign expendit­ure by a litig­ant on behalf of a judge neces­sit­ates disqual­i­fic­a­tion. But the propos­i­tion that campaign expendit­ures, regard­less of the amounts, timing, or manner in which they are made never cross over “the outer bound­ar­ies of judi­cial qual­i­fic­a­tion” estab­lished by the Due Process Clause would in effect nullify one of the Consti­tu­tion’s most funda­mental protec­tions. Lavoie, 475 U.S. at 828."

Brief Amicus Curiae, Amer­ican Bar Asso­ci­ation, avail­able here:

“The ABA submits that the facts of this case would require judi­cial disqual­i­fic­a­tion under the current version of the ABA’s Model Code… The conduct here, accept­ing contri­bu­tions of this magnitude from a litig­ant and refus­ing to recuse-certainly creates an appear­ance of impro­pri­ety.”

“Judi­cial elec­tions and judi­cial campaign contri­bu­tions in the normal course do not viol­ate due process.  However, impli­cit in the Model Code’s Rule 2.11A(A)(4) is that, at some contri­bu­tion level, funda­mental fair­ness concerns of actual or appar­ent bias are triggered.  Because the Court has held that the appear­ance, as well as the real­ity, of judi­cial impar­ti­al­ity anim­ates the Due Process Clause, the ABA submits that this case presents an import­ant oppor­tun­ity for the Court to clarify the consti­tu­tional bound­ar­ies that govern…ju­di­cial campaign contri­bu­tions.”

Brief Amicus Curiae, Commit­tee for Economic Devel­op­ment, avail­able here:

“By not recus­ing himself from the appeal of a $50 million jury verdict against A.T. Massey Coal Company (”Massey")-after he received over $3 million in post-verdict, pre-appeal campaign support from Massey’s CEO-West Virginia Supreme Court Justice Brent Benjamin created an appear­ance of bias that would dimin­ish the integ­rity of the judi­cial process in the eyes of any reas­on­able person."

“A hold­ing by the Court that the Due Process Clause required Justice Benjamin’s recusal would provide crucial guid­ance to elec­ted judges and preserve public confid­ence in judi­cial elec­tions. Such confid­ence is of partic­u­lar value to those engaged in commerce, who rely on even-handed justice to make informed finan­cial and invest­ment decisions.”

Brief Amicus Curiae, Wash­ing­ton Appel­late Lawyers Asso­ci­ation, avail­able here:

“This Court has not yet had an oppor­tun­ity to define the rela­tion­ship between judi­cial campaign contri­bu­tions and the due process clause. The time is right for an explor­a­tion of that rela­tion­ship, judi­cial contrib­ut­ors deserve guid­ance on the impact their contri­bu­tions may have, non-donor parties to lawsuits need guid­ance on the applic­able prin­ciples, judges them­selves would bene­fit from this Court’s review, and this case presents an ideal vehicle for such a review.”

Brief Amicus Curiae, Public Citizen, avail­able here:

“Whether or not the decisions below were in fact affected by the sizable campaign contri­bu­tions described in the peti­tion, peti­tion­ers can have no faith that the outcome of the case was not affected by the contri­bu­tions to the judge who ruled against them.”