Caperton v. A. T. Massey Coal Co., Inc.

556 U.S. 868

Case Year: 2009

Case Ruling: 5-4, Reversed and Remanded

Opinion Justice: Kennedy

More Information

Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Breyer, Ginsburg, Souter, Stevens


1st Concurring Opinion



1st Dissenting Opinion

Author: Roberts

Joiner(s): Scalia, Thomas, Alito

2nd Concurring Opinion



2nd Dissenting Opinion

Author: Scalia


3rd Concurring Opinion



3rd Dissenting Opinion



Other Concurring Opinions:


In August 2002 a West Virginia jury returned a verdict that found respondents A. T. Massey Coal Co. and its affiliates liable for fraudulent misrepresentation, concealment, and interference with existing contractual relations. The jury awarded petitioners Hugh Caperton, Harman Development Corporation, and several other companies $50 million in compensatory and punitive damages.

After the verdict, but before the appeal, West Virginia held its 2004 judicial elections. Knowing that the Supreme Court of Appeals of West Virginia would consider the appeal in the case, Don Blankenship--Massey's chairman, chief executive officer, and president--decided to support Brent Benjamin, an attorney who was challenging a sitting justice on the West Virginia court, Warren R. McGraw.

In addition to contributing the $1,000 statutory maximum to Benjamin's campaign committee, Blankenship donated almost $2.5 million to "And For The Sake Of The Kids," a political organization that opposed McGraw and supported Benjamin. Donations accounted for more than two-thirds of the total funds it raised. In addition, Blankenship spent just over $500,000 on independent expenditures--for direct mailings and letters soliciting donations and on television and newspaper advertisements to support Benjamin. All in all, Blankenship's $3 million in contributions were more than the total amount spent by all other Benjamin supporters and three times the amount spent by Benjamin's own committee. Caperton contended that Blankenship spent $1 million more than the total spent by the campaign committees of both candidates combined.

Benjamin won. He received 382,036 votes (53.3 percent), and McGraw received 334,301 votes (46.7 percent). In October 2005, before Massey filed its petition for appeal in the West Virginia Supreme Court, Caperton moved to disqualify Justice Benjamin under the due process clause and the West Virginia Code of Judicial Conduct, based on the conflict caused by Blankenship's campaign involvement. Benjamin denied the motion in April 2006. He found "no objective information . . . to show that this Justice has a bias for or against any litigant, that this Justice has prejudged the matters which comprise this litigation, or that this Justice will be anything but fair and impartial."

In November 2007 the West Virginia Supreme Court reversed the $50 million verdict against Massey. The vote was 3-2 with Chief Justice Robin Davis and Justices Benjamin and Elliott "Spike" Maynard in the majority. Justice Larry Starcher dissented, stating that the "majority's opinion is morally and legally wrong." Justice Joseph P. Albright also dissented.

Caperton sought a rehearing, and the parties moved to disqualify three of the five justices who had decided the appeal. Photos had surfaced of Maynard vacationing with Blankenship in the French Riviera while the case was pending. Maynard granted Caperton's recusal motion. On the other side, Starcher granted Massey's recusal motion, apparently based on his public criticism of Blankenship's role in the 2004 elections. In his recusal memorandum Starcher urged Benjamin to recuse himself as well. He noted that "Blankenship's bestowal of his personal wealth, political tactics, and 'friendship' have created a cancer in the affairs of this Court." Benjamin declined Starcher's suggestion and denied Caperton's recusal motion.

The state supreme court granted rehearing. Benjamin, now in the capacity of acting chief justice, selected Judges Donald H. Cookman and Fred Fox to replace the recused justices. Caperton moved a third time for disqualification, arguing that Benjamin had failed to apply the correct standard under West Virginia law: whether "a reasonable and prudent person, knowing these objective facts, would harbor doubts about Justice Benjamin's ability to be fair and impartial." Caperton also included the results of a public opinion poll, which indicated that more than 67 percent of West Virginians doubted Benjamin would be fair and impartial. Benjamin again refused to withdraw, noting that the "push poll" was "neither credible nor sufficiently reliable to serve as the basis for an elected judge's disqualification."

In April 2008 a divided court again reversed the jury verdict, and again it was a 3-to-2 decision. Davis filed a modified version of her prior opinion, repeating the two earlier holdings. She was joined by Benjamin and Fox. Albright, joined by Cookman, dissented, noting "genuine due process implications arising under federal law" with respect to Benjamin's failure to recuse himself.

Four months later--a month after the petition for writ of certiorari was filed in the U.S. Supreme Court--Justice Benjamin filed a concurring opinion. He defended the merits of the majority opinion as well as his decision not to recuse. He rejected Caperton's challenge to his participation in the case under both the due process clause and West Virginia law. Benjamin reiterated that he had no " 'direct, personal, substantial, pecuniary interest' in this case.' " Adopting "a standard merely of 'appearances,' " he concluded, "seems little more than an invitation to subject West Virginia's justice system to the vagaries of the day--a framework in which predictability and stability yield to supposition, innuendo, half-truths, and partisan manipulations."



Under our precedents there are objective standards that require recusal when "the probability of actual bias on the part of the judge is too high to be constitutionally tolerable." Applying those precedents, we find that, in all the circumstances of this case, due process requires recusal. . . .

As the Court has recognized . . . "most matters relating to judicial disqualification [do] not rise to a constitutional level." The early and leading case on the subject is Tumey v. Ohio (1927). There, the Court stated that "matters of kinship, personal bias, state policy, remoteness of interest, would seem generally to be matters merely of legislative discretion.". . . Under this rule, "disqualification for bias or prejudice was not permitted"; those matters were left to statutes and judicial codes. . . .

As new problems have emerged that were not discussed at common law, however, the Court has identified additional instances which, as an objective matter, require recusal. These are circumstances "in which experience teaches that the probability of actual bias on the part of the judge . . . is too high to be constitutionally tolerable." To place the present case in proper context, two instances where the Court has required recusal merit further discussion.

The first involved the emergence of local tribunals where a judge had a financial interest in the outcome of a case, although the interest was less than what would have been considered personal or direct at common law. This was the problem addressed in Tumey. There, the mayor of a village had the authority to sit as a judge (with no jury) to try those accused of violating a state law prohibiting the possession of alcoholic beverages. Inherent in this structure were two potential conflicts. First, the mayor received a salary supplement for performing judicial duties, and the funds for that compensation derived from the fines assessed in a case. . . . The mayor-judge thus received a salary supplement only if he convicted the defendant. Second, sums from the criminal fines were deposited to the village's general treasury fund for village improvements and repairs.

The Court held that the Due Process Clause required disqualification "both because of [the mayor-judge's] direct pecuniary interest in the outcome, and because of his official motive to convict and to graduate the fine to help the financial needs of the village.". . .

[In later cases,] the Court stressed that it was "not required to decide whether in fact [the justice] was influenced." The proper constitutional inquiry is "whether sitting on the case . . . ' "would offer a possible temptation to the average . . . judge to . . . lead him not to hold the balance nice, clear and true." ' ". . . The second instance requiring recusal that was not discussed at common law emerged in the criminal contempt context, where a judge had no pecuniary interest in the case but was challenged because of a conflict arising from his participation in an earlier proceeding.

In that . . . proceeding, and as provided by state law, a judge examined witnesses to determine whether criminal charges should be brought. The judge called the two petitioners before him. One petitioner answered questions, but the judge found him untruthful and charged him with perjury. The second declined to answer on the ground that he did not have counsel with him, as state law seemed to permit. The judge charged him with contempt. The judge proceeded to try and convict both petitioners.

This Court set aside the convictions on grounds that the judge had a conflict of interest at the trial stage because of his earlier participation followed by his decision to charge them. The Due Process Clause required disqualification. [The Court] noted that the disqualifying criteria "cannot be defined with precision. Circumstances and relationships must be considered.". . .

Based on the principles described in these cases we turn to the issue before us. This problem arises in the context of judicial elections, a framework not presented in the precedents we have reviewed and discussed. . . . The difficulties of inquiring into actual bias, and the fact that the inquiry is often a private one, underscore the need for objective rules. In lieu of exclusive reliance on that personal inquiry, or on appellate review of the judge's determination respecting actual bias, the Due Process Clause has been implemented by objective standards that do not require proof of actual bias. In defining these standards the Court has asked whether, "under a realistic appraisal of psychological tendencies and human weakness," the interest "poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented."

We turn to the influence at issue in this case. Not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge's recusal, but this is an exceptional case. 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.

Applying this principle, we conclude that Blankenship's campaign efforts had a significant and disproportionate influence in placing Justice Benjamin on the case. Blankenship contributed some $3 million to unseat the incumbent and replace him with Benjamin. His contributions eclipsed the total amount spent by all other Benjamin supporters and exceeded by 300% the amount spent by Benjamin's campaign committee. . . . .

Whether Blankenship's campaign contributions were a necessary and sufficient cause of Benjamin's victory is not the proper inquiry. Much like determining whether a judge is actually biased, proving what ultimately drives the electorate to choose a particular candidate is a difficult endeavor, not likely to lend itself to a certain conclusion. Due process requires an objective inquiry into whether the contributor's influence on the election under all the circumstances "would offer a possible temptation to the average . . . judge to . . . lead him not to hold the balance nice, clear and true.". . . [T]he risk that Blankenship's influence engendered actual bias is sufficiently substantial that it "must be forbidden if the guarantee of due process is to be adequately implemented."

The temporal relationship between the campaign contributions, the justice's election, and the pendency of the case is also critical. It was reasonably foreseeable, when the campaign contributions were made, that the pending case would be before the newly elected justice. . . . Although there is no allegation of a quid pro quo agreement, the fact remains that Blankenship's extraordinary contributions were made at a time when he had a vested stake in the outcome. 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. And applying this principle to the judicial election process, there was here a serious, objective risk of actual bias that required Justice Benjamin's recusal. . . .

Our decision today addresses an extraordinary situation where the Constitution requires recusal. Massey and its amicipredict that various adverse consequences will follow from recognizing a constitutional violation here--ranging from a flood of recusal motions to unnecessary interference with judicial elections. We disagree. The facts now before us are extreme by any measure. The parties point to no other instance involving judicial campaign contributions that presents a potential for bias comparable to the circumstances in this case. . . . The judgment of the Supreme Court of Appeals of West Virginia is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.


I, of course, share the majority's sincere concerns about the need to maintain a fair, independent, and impartial judiciary--and one that appears to be such. But I fear that the Court's decision will undermine rather than promote these values.

Until today, we have recognized exactly two situations in which the Federal Due Process Clause requires disqualification of a judge: when the judge has a financial interest in the outcome of the case, and when the judge is trying a defendant for certain criminal contempts. Vaguer notions of bias or the appearance of bias were never a basis for disqualification, either at common law or under our constitutional precedents. Those issues were instead addressed by legislation or court rules.

Today, however, the Court enlists the Due Process Clause to overturn a judge's failure to recuse because of a "probability of bias." Unlike the established grounds for disqualification, 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. The end result will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case. . . .

In departing from this clear line between when recusal is constitutionally required and when it is not, the majority repeatedly emphasizes the need for an "objective" standard. The majority's analysis is "objective" in that it does not inquire into Justice Benjamin's motives or decisionmaking process. But the standard the majority articulates--"probability of bias"--fails to provide clear, workable guidance for future cases. At the most basic level, it is unclear whether the new probability of bias standard is somehow limited to financial support in judicial elections, or applies to judicial recusal questions more generally. But there are other fundamental questions as well. With little help from the majority, courts will now have to determine:

1. How much money is too much money? What level of contribution or expenditure gives rise to a "probability of bias"?

2. How do we determine whether a given expenditure is "disproportionate"? Disproportionate to what?

3. Are independent, non-coordinated expenditures treated the same as direct contributions to a candidate's campaign? What about contributions to independent outside groups supporting a candidate?

4. Does it matter whether the litigant has contributed to other candidates or made large expenditures in connection with other elections?

5. Does the amount at issue in the case matter? What if this case were an employment dispute with only $10,000 at stake? What if the plaintiffs only sought non-monetary relief such as an injunction or declaratory judgment?

6. Does the analysis change depending on whether the judge whose disqualification is sought sits on a trial court, appeals court, or state supreme court? . . .

[Chief Justice Roberts raised forty questions in total.]

To its credit, the Court seems to recognize that the inherently boundless nature of its new rule poses a problem. But the majority's only answer is that the present case is an "extreme" one, so there is no need to worry about other cases. The Court repeats this point over and over.

But this is just so much whistling past the graveyard. Claims that have little chance of success are nonetheless frequently filed. The success rate for certiorari petitions before this Court is approximately 1.1%, and yet the previous Term some 8,241 were filed. Every one of the " Caperton motions" or appeals . . . will claim that the judge is biased, or probably biased, bringing the judge and the judicial system into disrepute. And all future litigants will assert that their case is reallythe most extreme thus far. . . .

Today, the majority . . . departs from a clear, longstanding constitutional rule to accommodate an "extreme" case involving "grossly disproportionate" amounts of money. I believe we will come to regret this decision, when courts are forced to deal with a wide variety of Caperton motions, each claiming the title of "most extreme" or "most disproportionate.". . .

It is an old cliché, but sometimes the cure is worse than the disease. I am sure there are cases where a "probability of bias" should lead the prudent judge to step aside, but the judge fails to do so. Maybe this is one of them. But I believe that opening the door to recusal claims under the Due Process Clause, for an amorphous "probability of bias," will itself bring our judicial system into undeserved disrepute, and diminish the confidence of the American people in the fairness and integrity of their courts. I hope I am wrong.

I respectfully dissent.


The principal purpose of this Court's exercise of its certiorari jurisdiction is to clarify the law. As THE CHIEF JUSTICE's dissent makes painfully clear, the principal consequence of today's decision is to create vast uncertainty with respect to a point of law that can be raised in all litigated cases in (at least) those 39 States that elect their judges. . . .

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. In the best of all possible worlds, should judges sometimes recuse even where the clear commands of our prior due process law do not require it? Undoubtedly. The relevant question, however, is whether we do more good than harm by seeking to correct this imperfection through expansion of our constitutional mandate in a manner ungoverned by any discernable rule. The answer is obvious.