Supreme Court: Judges must step aside when there's perception of bias

Massey filed an appeal with West Virginia's highest court, formally called the West Virginia Supreme Court of Appeals.

Two years earlier, Blankenship spent $3 million to help unseat Warren McGraw, an incumbent justice on the West Virginia high court. Blankenship paid for a barrage of negative and exaggerated television ads accusing Justice McGraw of voting to release a child molester so he could work in a school.

McGraw lost the election. A West Virginia lawyer, Brent Benjamin, won the high-court seat and was sworn in as a justice in January 2005.

Then, in October 2006, Massey's appeal reached the West Virginia Supreme Court. Caperton asked Benjamin to step down from consideration of the case. He said there was an appearance of bias since the justice had been the beneficiary of Massey's $3 million campaign to unseat McGraw.

Lawyers for Massey filed a recusal motion of their own, seeking removal of a different justice they perceived as potentially hostile to their case.

Benjamin refused to step aside. Eventually, the West Virginia Supreme Court of Appeals voted 3 to 2 to invalidate the $50 million verdict against Massey. Benjamin voted in Massey's favor.

Caperton asked for a rehearing, repeating earlier calls for Benjamin's recusal. Two other justices stepped down from the case, but Benjamin remained on the bench. The state high court again voted 3 to 2 to throw out the $50 million verdict. Benjamin, again, voted in Massey's favor.

The issue before the Supreme Court was whether Benjamin was required under the Constitution's due process clause to step aside, or whether he acted properly in rejecting recusal motions and ultimately casting the deciding vote in the case.

Lawyers for Massey said Blankenship's $3 million was an independent expenditure rather than a campaign contribution to Benjamin. They said that Benjamin voted against Massey in five other cases, including a $243 million judgment against the company.

Justice Kennedy said in his opinion that the facts in the West Virginia case were extreme. He said the new constitutional standard announced by the court would come into play only rarely. "Most disputes over disqualification will be resolved without resort to the Constitution," he said.

Chief Justice Roberts disagreed. His dissent includes 40 questions raised by the majority ruling. Among them: "How much money is too much money?" and "Does the judge get to respond to the allegation that he is probably biased, or is his reputation solely in the hands of the parties to the case?"

Roberts continues: "Today's opinion requires state and federal judges simultaneously to act as political scientists (why did candidate X win the election?), economists (was the financial support disproportionate?), and psychologists (is there likely to be a debt of gratitude?)."

Kennedy said the majority justices did not question Benjamin's own subjective determination that he had acted properly and with fairness. But the Supreme Court was now applying an objective test.

"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," Kennedy wrote.

The inquiry, he said, must focus on the campaign contribution's size compared with the total spent in the election, and the apparent effect that the money had on the outcome of the election.

"Applying this principle," Kennedy said, "we conclude that Blankenship's campaign efforts had a significant and disproportionate influence in placing Justice Benjamin on the case."

In a separate dissent, Justice Antonin Scalia said the relevant question is whether the court does more good than harm by expanding a constitutional mandate for recusal "in a manner ungoverned by any [discernible] rule."

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