The Need for an Independent, Impartial Judiciary: Caperton v. A.T. Massey Coal Co. , 129 S. Ct. 2252 (2009)

1. The Need for an Independent, Impartial Judiciary:Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252 (2009) TM

2. 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? TM

3. 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). TM

4. Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252 (2009)What are the facts? TM

5. Interpreting the Due Process Clause The Duty to Interpret • 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. TM

6. 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. TM

7. 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. TM

8. 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.” TM

9. 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 MonroevilleCourt: “The fact that the mayor [in Tumey] shared directly in the fees and costs did not define the limits of the principle.” TM

10. 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.’” TM

11. Prior Precedent—In re Murchison, 349 U.S. 133 (1955) • 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.” TM

12. Prior Precedent—Mayberry v. Pennsylvania, 400 U.S. 455 (1971) • 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. TM

13. 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? TM

14. ANSWER: NO TM

15. In re Allied-Signal, Inc., 891 F.2d 974 (1st Cir. 1989) • 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.” TM

16. Nathanson v. Korvick, 577 So.2d 943 (Fla. 1991) • 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.” TM

17. Zaias v. Kaye, 643 So.2d 687 (Fla. 3d DCA 1994) • 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. TM

18. Caperton and Due-Process Precedent • 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. • 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. TM

19. Applying Precedent • 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: TM

20. (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). TM

21. (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? TM

22. (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? TM

23. 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. TM

24. What Did the Real Court Decide? TM

25. The United States Supreme Court’s Decision in Caperton—Vote Breakdown TM

26. 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. TM

27. 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. TM

28. Court’s Analysis TM

29. 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.’” TM

30. 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. TM

31. 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. TM

32. 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. TM

33. Return to Our Original Questions. TM

34. 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? TM

35. Did the United States Supreme Court’s Decision in Caperton Answer Any of These Questions or Provide Some Hints? TM

36. The Predominant View of Our Founding Fathers TM

37. Are judges, like legislators and governors, politicians who are subject to the will of their constituents? TM

38. 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.” TM

39. 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? TM

40. 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. TM

41. Should judges be influenced by the lobby efforts of interest groups for support as are legislators and executive-branch officials? TM

42. 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.” TM

43. FLORIDA JUSTICES AND JUDGES ARE DIFFERENT TM

44. 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, non-contested retention election. TM

45. 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.” TM

46. 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.” TM

47. Florida’s trial judges are selected through nominally non-partisan, contested judicial elections. TM

48. 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. TM

49. Judicial Elections Nationwide TM

50. 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. TM