Transcript Power Point Presentation

The Need for an
Independent, Impartial
Judiciary:
Caperton v. A.T. Massey
Coal Co., 129 S. Ct. 2252
(2009)
What is the Judiciary’s Role in a
Constitutional Republic?



Are judges, like legislators and governors,
politicians who are designed to be subject to the
will of their constituents?
Is it proper for judges to campaign for votes, to
fundraise, and, in the process, to anticipate and
address legal issues that may be raised in future
cases?
Should judges be influenced by lobby efforts of
interest groups for support as are legislators and
executive-branch officials?
A Constitutional Dialogue

Today we will discuss these questions by
exploring the United States Supreme
Court’s recent decision in Caperton v. A.T.
Massey Coal Co., 129 S. Ct. 2252 (2009).
Caperton v. A.T. Massey Coal
Co., 129 S. Ct. 2252 (2009)
What are the facts?
Interpreting the Due Process
The Duty
to
Interpret
Clause
 Judges are charged with the duty to
impartially interpret the law.
 This duty to interpret applies to
constitutions, statutes, rules, treaties,
contracts, and prior court decisions, which
are referred to as precedents.
Interpret:
To give or provide the meaning of something,
whether it be a statement, a word, a phrase, or
even an entire law or amendment.
The Due Process Clause
No state shall make or enforce any law which
shall abridge the privileges or immunities of
citizens of the United States; nor shall any state
deprive any person of life, liberty, or property,
without due process of law; nor deny to any
person within its jurisdiction the equal
protection of the laws.
Interpreting the Due Process
Clause
Prior decisions, also known as precedents, had already established that
the Due Process Clause of the Fourteenth Amendment guaranteed the right
to “a fair trial in a fair tribunal.” However, judges must decide a case
based upon the facts before them. In Caperton, the United States Supreme
Court was faced with applying this established right to the new facts
presented by Massey Coal’s efforts to influence the West Virginia Supreme
Court of Appeals and, in particular, his efforts to influence the outcome of
Justice Benjamin’s election by financial support.
In other words, the United States Supreme Court was required to
interpret the Due Process Clause to determine whether Massey Coal’s
substantial financial support of Justice Benjamin made the risk of actual
bias against Caperton so high that the guarantee of a “fair proceeding in a
fair tribunal” was violated.
Prior Precedent—Tumey v.
Ohio, 273 U.S. 510 (1927)
In Tumey, a village mayor also acted as a local judge with no jury to determine
whether defendants had violated Ohio’s laws prohibiting the possession of
alcohol. There were two potential bias problems with this arrangement:
•
(1) The mayor received additional salary for performing his judicial duties,
and the funds to support this additional salary came from fines imposed
upon convicted defendants. So, the mayor was not paid as a judicial officer
unless he convicted defendants;

(2) Some of the criminal fines were also deposited in the village’s general
treasury for village improvements and repairs.

For these reasons, the United States Supreme Court in the Tumey case held
that the Due Process Clause required the mayor-judge to remove himself
from these cases: “Every procedure which . . . might lead [a judge] not to
hold the balance nice, clear and true . . . denies . . . due process of law.”
Prior Precedent—Ward v.
Monroeville, 409 U.S. 57 (1972)
•
•
The Monroeville case also involved a “mayor’s court,” but
differed from the Tumey case because the mayor-judge in
Monroeville did not receive a salary from criminal fines;
instead, the fines simply went into the town’s general
treasury fund.
This factual difference was not important to the
Monroeville Court: “The fact that the mayor [in Tumey]
shared directly in the fees and costs did not define the
limits of the principle.”
Prior Precedent—Aetna Life Ins.
Co. v. Lavoie, 475 U.S. 813 (1986)
•
•
In Lavoie, a justice of the Alabama Supreme Court cast the deciding
vote to uphold a punitive damages award against an insurance
company despite the fact that, at the time of his vote, the justice was
the lead plaintiff in a nearly identical lawsuit pending against an
insurance company in a lower Alabama court.
The United States Supreme Court explained that it was not required to
determine whether this Alabama justice was actually biased or
influenced to act against the insurance company. Instead, the United
States Court held that the correct test, under these circumstances,
was “whether sitting on the case then before the Supreme Court of
Alabama would offer a possible temptation to the average . . . judge
to . . . lead him not to hold the balance nice, clear and true.” The
Court also clarified that “what degree or kind of interest is sufficient to
[constitutionally] disqualify a judge from sitting ‘cannot be defined
with precision.’”
Prior Precedent—In re
Murchison, 349 U.S. 133 (1955)
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Murchison involved a judge who found two defendants to be in direct
criminal contempt. In other words, in the judge’s view, the
defendants had committed some act in court, in his presence, that
amounted to a criminal offense. In this case, the alleged offense was
perjury (lying under oath). This same judge then tried, convicted, and
sentenced the defendants for perjury.
The United States Supreme Court set aside these convictions on the
grounds that the judge had a conflict of interest—he both charged the
defendants with crimes and acted as judge and jury in trying,
convicting, and sentencing them for these same offenses. The Due
Process Clause required that the judge remove himself in this
situation. The Court concluded that the general rule was that “no
man can be a judge in his own case,” and that “no man is permitted
to try cases where he has an interest in the outcome.”
Prior Precedent—Mayberry v.
Pennsylvania, 400 U.S. 455
(1971)
•
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Mayberry also involved direct criminal contempt. Similar
to Murchison, a single judge alleged that contempt had
occurred and also tried the defendants for the contempt
offenses.
The United States Supreme Court reversed these
convictions and held that, because of the high potential
for bias, the Due Process Clause required that “a
defendant in criminal contempt proceedings . . . be given
a public trial before a judge other than the one” who
witnessed the alleged contempt.
So, do all prior cases hold that a judge
must be recused whenever he or she
has a prior relationship with a party or
a party’s attorney who is now
appearing before him or her?
ANSWER: NO
In re Allied-Signal, Inc., 891 F.2d 974 (1st Cir.
1989)
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Defendants in litigation that involved a hotel fire filed a motion which
sought recusal of the presiding judge.
One of the plaintiffs’ attorneys had previously loaned $50,000 to the
judge, before the judge was appointed to the federal bench. The
judge had repaid the loan before he was appointed.
The federal appellate court held that the recusal of the judge was not
required: “We do not see how a series of social or business
relationships of the sort of which petitioners complain, between a
judge and lawyer, taking place more than eight years ago, before the
judge's appointment, could cast significant doubt on the judge's
impartiality.”
Nathanson v. Korvick, 577 So.2d 943
(Fla. 1991)
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Wife in alimony modification proceeding sought to recuse the
presiding judge because the attorney representing her ex-husband
had contributed to the judge’s political campaign and had served on
the campaign committee for the judge.
The Florida Supreme Court held that judges are not required to
disqualify themselves from cases based solely upon an allegation that
an attorney or litigant made a campaign contribution to the political
campaign of the judge. “As long as the citizens of Florida require
judges to face the electorate, either through election or retention, ‘the
resultant contributions to those campaigns . . . are necessary
components of our judicial system.’ We do not find that ‘contributions’
are limited to financial ones, and thus do not distinguish between
financial contributions and services on a campaign committee.”
Zaias v. Kaye, 643 So.2d 687 (Fla. 3d DCA 1994)
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A party sought to disqualify a judge in a case because opposing
counsel had previously contributed to the judge’s political campaign
and served on one of the campaign committees for the judge.
Relying on the Florida Supreme Court’s decision in Nathanson, the
Third District Court of Appeal in Florida held that recusal of the judge
from the case was not required.
The Third District distinguished Zaias from another case, Barber v.
McKenzie, 562 So. 2d 755 (Fla. 3d DCA 1990), where opposing
counsel served as a member of the judge’s contemporaneously active
campaign committee. In Barber, the Third District determined that
recusal of the presiding judge was required.
Caperton and Due-Process
Precedent
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As you now know, Caperton did not involve a judge who had a direct
financial interest in the case or a judge who witnessed direct criminal
contempt.
The United States Supreme Court possessed rules of law from prior cases
(precedents) involving different facts, but was now required to apply
these precedents to a new situation: A powerful businessman had given
millions of dollars to elect one of the justices of the West Virginia
Supreme Court of Appeals, who would then decide whether this
businessman’s company was required to pay a court judgment of $50
million.
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This is an important lesson because appellate courts are frequently
asked to interpret prior cases to address new situations that have
not been previously addressed in reported decisions. Using legal
rules from precedents to address new situations is the responsibility
of judges.
Applying Precedent
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Before we discover how the United States
Supreme Court decided Caperton, ask yourself
the following questions and provide written
answers based upon the precedents that we
have discussed:
(1) If you were in the position of Caperton,
would you as an objective person have felt
that Justice Benjamin could have impartially
participated in this case after receiving
millions of dollars in campaign support from
this businessman (Massey Coal).
(2) Is it possible to receive the “fair
proceeding in a fair tribunal” guaranteed by
the Due Process Clause when an opposing
party has recently donated millions of dollars
to help elect one of the appellate judges?
(3) Did Justice Benjamin violate the legal
rule that “no man is permitted to try cases
where he has an interest in the outcome?”
Was his interest in the Caperton case strong
or direct enough to trigger this rule?
• Form groups of 5
• Choose a Chief Justice
• Chief Justice Maintains Order
• Poll the Justices. How did each one of you answer the
questions and why?
• Try to reach a unanimous decision. Did Justice
Benjamin’s participation violate the Due Process
Clause?
• You have 10 minutes to discuss then take a final poll.
What Did the
Real Court
Decide?
The United States
Supreme Court’s
Decision in
Caperton—Vote
Breakdown
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A majority of the United States Supreme
Court held that the Due Process Clause
required that Justice Benjamin remove
himself from the Caperton case. Justice
Anthony Kennedy wrote the majority
opinion, joined by Justices John Paul
Stevens, David Souter, Ruth Bader
Ginsburg, and Stephen Breyer.
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Chief Justice John Roberts dissented, meaning that he
disagreed with the majority’s decision, and Justices Antonin
Scalia, Clarence Thomas, and Samuel Alito joined this
dissent.
A majority acts “as the Court,” but a dissent only expresses
the personal views of the dissenting justices.
Court’s Analysis
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The Court highlighted that it did not
question Justice Benjamin’s personal
view that he was non-biased and
impartial, and it did not consider whether
bias actually existed. Instead, it
answered “whether the average judge in
his position [wa]s ‘likely’ to be neutral, or
whether there [wa]s an unconstitutional
‘potential for bias.’”
•
The Court held that the due-process inquiry is
objective and is concerned with the potential
for bias viewed from the perspective of a
party. “Not every campaign contribution by a
litigant or attorney creates a probability of bias
that requires” a judge to remove him- or
herself. This was an “exceptional case” that
required Justice Benjamin’s removal due to (1)
the timing of the election and (2) the
substantial amount of money that the
businessman donated to support Justice
Benjamin’s election to the West Virginia
Supreme Court of Appeals.
•
Just as no man is allowed to be a judge
in his own cause, similar fears of bias can
arise when—without the consent of the
other parties—a man chooses the judge
in his own cause. Applying this principle
to the judicial election process, there was
a serious, objective risk of actual bias
that required Justice Benjamin’s recusal.
•
The dissent accused the majority of (1)
failing to provide a workable rule, (2)
leaving too many questions unanswered,
and (3) incorrectly expanding prior
precedent to a new situation. However,
the dissent was willing to admit that
there are cases where a “probability of
bias” should lead the prudent judge to
step aside, but the judge fails to do so—
and the present case may be one such
case.
Return to Our Original
Questions.
What is the Judiciary’s Role in a
Constitutional Republic?



Are judges, like legislators and governors,
politicians who are designed to be subject to the
will of their constituents?
Is it proper for judges to campaign for votes, to
fundraise, and, in the process, to anticipate and
address legal issues that may be raised in future
cases?
Should judges be influenced by the lobby efforts
of interest groups for support as are legislators
and executive-branch officials?
Did the United States Supreme
Court’s Decision in Caperton
Answer Any of These
Questions or Provide Some
Hints?
The Predominant View of Our
Founding Fathers
 Are
judges, like legislators and
governors, politicians who are
subject to the will of their
constituents?
 No,
judges are not politicians.
They do not represent a particular
constituency. Instead, they
represent the law and are bound to
interpret and follow its
requirements. The judicial branch
of government is “to secure a
steady, upright, and impartial
administration of the laws.”
 Is
it proper for judges to campaign
for votes, to fundraise, and, in the
process, to anticipate and address
legal issues that may be raised in
future cases?

No, at least on the federal level,
electioneering, campaigning, and lobbying
for votes is inconsistent with the judicial role:
The independence of judges is equally
requisite to guard the Constitution and the
rights of individuals from the effects of those
ill humors, which the arts of designing men,
or the influence of particular conjectures,
that sometimes disseminate among the
people themselves.
 Should
judges be influenced by
the lobby efforts of interest groups
for support as are legislators and
executive-branch officials?

No, such attempts fundamentally undermine
the judiciary and seek to turn judges into
another type of politician. Under such a
system “there would be too great a
disposition to consult popularity, [rather
than] a reliance [on] . . . the Constitution
and the laws.” The judiciary should be the
non-political branch of government. “The
legitimacy of the Judicial Branch . . .
depends on its reputation for impartiality and
nonpartisanship.”
FLORIDA JUSTICES AND
JUDGES ARE DIFFERENT
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Justices on the Florida Supreme Court and judges on
Florida’s district courts of appeal are not selected
through contested elections. When a vacancy occurs
on one of these appellate courts, an independent
judicial nominating commission selects a group of
several judicial candidates from which the governor
selects a single candidate to become a justice or
judge. Each six years following appointment, a justice
or appellate judge is subject to a yes-or-no, noncontested retention election.

Article V, section 11(a) of the Florida Constitution
provides:
“Whenever a vacancy occurs in a judicial office to
which election for retention applies, the governor shall
fill the vacancy by appointing . . . one of not fewer
than three persons nor more than six persons
nominated by the appropriate judicial nominating
commission.”

Article V, section 10(a) of the Florida Constitution
provides:
“Any justice or judge may qualify for retention by a vote of the
electors in the general election next preceding the expiration of the
justice's or judge's term in the manner prescribed by law. . . . When
a justice or judge so qualifies, the ballot shall read substantially as
follows: "Shall Justice (or Judge) (name of justice or judge) of the
(name of the court) be retained in office?" If a majority of the
qualified electors voting within the territorial jurisdiction of the court
vote to retain, the justice or judge shall be retained for a term of six
years. . . . If a majority of the qualified electors voting within the
territorial jurisdiction of the court vote to not retain, a vacancy shall
exist in that office upon the expiration of the term being served by
the justice or judge.”
 Florida’s
trial judges are selected
through nominally non-partisan,
contested judicial elections.

Article V, section 10(b) of the Florida Constitution
provides:
(1) The election of circuit judges shall be preserved . . . unless a
majority of those voting in the jurisdiction of that circuit approves a
local option to select circuit judges by merit selection and retention
rather than by election. The election of circuit judges shall be by a
vote of the qualified electors within the territorial jurisdiction of the
court.
(2) The election of county court judges shall be preserved . . . unless
a majority of those voting in the jurisdiction of that county approves
a local option to select county judges by merit selection and retention
rather than by election. The election of county court judges shall be
by a vote of the qualified electors within the territorial jurisdiction of
the court.
Judicial Elections
Nationwide

Federal judges are appointed by the President
of the United States upon the advice and
consent of the United States Senate. The
framers of the United States Constitution
rejected judicial elections as incompatible with
the judicial role.

Article II, section 2 of the United States Constitution
provides:
“[The President] shall have Power, by and with the Advice and
Consent of the Senate, to make Treaties, provided two thirds of
the Senators present concur; and he shall nominate, and by
and with the Advice and Consent of the Senate, shall appoint
Ambassadors, other public Ministers and Consuls, Judges of the
supreme Court, and all other Officers of the United States,
whose Appointments are not herein otherwise provided for, and
which shall be established by Law: but the Congress may by
Law vest the Appointment of such inferior Officers, as they
think proper, in the President alone, in the Courts of Law, or in
the Heads of Departments.”

Even though the United States
Constitution provides for the appointment
of federal judges, 39 states employ some
form of state judicial elections.

Millions of dollars are now spent each election cycle by
businesses, attorneys, and political groups to support
the election of judicial candidates whom they favor
and whom they will appear before in court. This is
what occurred in Caperton. The result is that judicial
elections now involve political campaigns that would
be typical for most legislators. But, remember, judges
are not politicians, and “[t]he legitimacy of the
Judicial Branch . . . depends on its reputation for
impartiality and nonpartisanship.”
 Two
national surveys conducted
during 2001 disclosed that 76% of
voters and 26% of judges believe
that campaign contributors had
some influence on judges’ rulings.
We Must Maintain
Independent and Impartial
Judges on the State Level

Due to the increasingly partisan, money-driven
nature of contested judicial elections, there is a
growing movement among the American
judiciary and legal community to end contested
judicial elections as incompatible with the
proper role of the judiciary.

For example, as a member of the United States Supreme Court,
Justice Sandra Day O’Connor observed:
“[T]he very practice of electing judges undermines th[e] interest [in an
impartial judiciary]. We . . . want judges to be impartial, . . . [b]ut if
judges are subject to regular elections they are likely to feel that they
have at least some personal stake in the outcome of every publicized
case. Elected judges cannot help being aware that if the public is not
satisfied with the outcome of a particular case, it could hurt their
reelection prospects. . . . Moreover, contested elections generally entail
campaigning. And campaigning for a judicial post today can require
substantial funds. . . . [R]elying on campaign donations may leave
judges feeling indebted to certain parties or interest groups. . . . Even if
judges were able to refrain from favoring donors, the mere possibility
that judges’ decisions may be motivated by the desire to repay
campaign contributors is likely to undermine the public’s confidence in
the judiciary.”
FREEDOM Survives Only with
a FREE, Independent and
Impartial Judicial Branch