U.S. Legal Blog » Judicial Ethics

Caperton v. Massey: Preserving Faith in Fairness

Bryan Lieb — Fri, 26 Jun 2009 18:04:02 +0000

To allow, or to forbid, a judge’s judging a case when one litigant has pumped millions of dollars into the judge’s election campaign. How best to preserve Americans’ faith in the integrity and fairness of our judicial system? The U.S. Supreme Court faced just this question in Caperton v. Massey, a suit between rival West Virginia coal companies. The closely divided Court issued its decision earlier this month. The three opinions totaling just 40 pages are a breeze to read compared to the Supremes’ more lengthy screeds – if you’ve never read a Supreme Court opinion, try this one.

Caperton’s coal company had sued the Massey coal co. for many misdeeds, winning a $50 million jury verdict. Massey appealed. Prior to the appeal’s hearing date, however, the West Virginia Supreme Court of Appeals had an election. Massey’s CEO Don Blankenship poured over $3 million (almost 3/4 the total spent) into the campaign of Brent Benjamin, who managed to unseat his incumbent opponent in a close election.

When the appeal of the $50 million verdict came before newly-minted Justice Benjamin, he refused to recuse himself – despite Caperton’s stringent objections that he was biased, or appeared to be, due to Blankenship’s huge contribution to his election. Benjamin said he had no direct pecuniary (monetary) interest in the outcome of the case, and there had been no objective information offered to show he had a bias or had prejudged the outcome. Ultimately, in the court’s 3-2 decision for reversal of the damage award, Benjamin voted to reverse.

Caperton appealed this reversal (and Benjamin’s failure to recuse himself) to the U.S. Supreme Court on the Constitutional question of whether Benjamin’s refusal to step aside violated Caperton’s Fourteenth Amendment right to Due Process (procedural fairness). And how could it not? The outcome reeks of unfairness, does it not? It appears unfair, or that there is a risk of unfairness afoot since we cannot know, finally and with certainty, whether or not Justice Benjamin was influenced – we’re forced to take his word for it.

A bare majority of the Supreme Court agreed, reversing the decision of the West Virginia court. In an opinion by pivotal swing-voter Justice Kennedy, five Supremes (Kennedy plus the liberal wing: Stevens, Souter, Ginsburg and Breyer) agreed that Benjamin had used an improper standard when considering whether to recuse himself. Kennedy states the correct standard in approximately three similar iterations (bold added by me):

(1) whether, under the totality of the circumstances, “the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.”

(2) “not whether the judge is actually biased, but whether … there is an unconstitutional potential for bias.”

Most elaborately, Kennedy states (3a) the Court’s extant rule for treatment of Due Process issues, and then (3b) applies it to the case at hand, resulting in yet a third enunciation of the relevant test:

(3a) “[T]he 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.”” (citations omitted)

(3b) “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.” In an election decided by fewer than 50,000 votes, Blankenship’s campaign contributions—in comparison to the total amount contributed to the campaign, as well as the total amount spent in the election— had a significant and disproportionate influence on the electoral outcome. And the 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.”” (citations omitted)

The inquiry focuses on the appearance, the probability, the potential for bias under the circumstances – not on the presence or absence of actual bias (which only a mind-reader could know, if indeed the biased judge was aware of his or her own bias – for biases can be subtle and difficult to detect and acknowledge even within ourselves). Justice Kennedy observes that Caperton is an extreme case, and falls beyond the Constitution’s pale, even if it’s impossible to draw a bright line rule under which to precisely (objectively?) analyze future cases: “This Court’s recusal cases are illustrative. In each case the Court dealt with extreme facts that created an unconstitutional probability of bias that ‘cannot be defined with precision.’”

What gives me pause is Kennedy’s insistence on applying the lable “objective” to his construction: “objective standard,” “objective inquiry,” as I highlighted above. Yes, items of evidence are examined: the election was close, the campaign contribution was disproportionate, etc. – and no, there is no “subjective” attempt to determine if Justice Benjamin was actually biased. But in Kennedy’s (3b) test (above), doesn’t the objective/subjective distinction blur almost beyond recognition? In determining whether “all the circumstances would offer a possible temptation to the average judge,” don’t we have to know, or presume to know, quite a lot about the inner workings of the mind of an “average judge”? Even defining an “average judge” implies the accurate construction of a composite, median mindset.

Justice Roberts’ dissent (joined by conservatives Scalia, Thomas and Alito) elaborates on a related concern:

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.

Roberts proceeds to pose forty questions, attempting to make the case that the devil is in the details and the majority’s opinion gives no guidance on dealing with a variety of details that could occur in future cases. Roberts concludes:

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.

Though I believe at least some subjective analysis is required to complete Kennedy’s inquiry, and I acknowledge it does not produce a bright-line rule, I could not disagree more with Roberts’ dissent. The Supreme Court was the last chance for justice to be done in this case. For justice to be done, Justice Benjamin could NOT be allowed to decide the case in favor of the company which had massively funded his election campaign (knowing that Benjamin would judge the case). For the Supreme Court to allow Benjamin’s participation would send a message to the public that justice can be bought – because that is the appearance, regardless of the reality (which we cannot know). If, in the absence of a bright-line rule, future cases must be decided on a case-by-case basis, so be it. Allowing Benjamin’s judgment to stand would have undermined public faith in judicial fairness.

Incidentally, Roberts’ forty questions (see the opion, linked above) invite perusal and, of course, answers. I started to go through them myself, and answers seemed obvious enough to me – so much so that I began to see the questions as an expression of petulance rather than an exercise in intellectual honesty. At least one Arizona lawyer, Keith Swisher, agrees. Swisher answered every question, concluding that only two or three of the forty qualified as legitimate. I tend to agree.

So was your faith in our judicial system preserved or eroded by Caperton v. Massey? If you enjoyed this article or have thoughts, feel free to leave a comment.

Joe Francis update: 35 days in Jail

Bryan Lieb — Tue, 24 Apr 2007 20:50:35 +0000

No news on the really interesting legal issues discussed earlier in this blog, but we have a resolution of the criminal contempt charge. Plenty of stormy skies ahead for Francis. Lengthy update here:

http://www.emeraldcoast.com/news/article_display.php?a=1083

“Girls Gone Wild” Judge’s Questionable Ethics Overshadowed By Francis’s Jailhouse Antics

Bryan Lieb — Fri, 13 Apr 2007 16:16:19 +0000

New charges continue to mount against Joe Francis, who has allegedly been caught with unapproved meds in his cell and is now charged with three related felonies - including bribery of a public official when he allegedly offered a guard $500 for a bottle of water.

Hopelessly lost in the pillorying of Francis is the really interesting questions: the legal propriety of U.S. District Judge Richard Smoak’s conduct in using the threat of civil and criminal contempt as leverage to force Francis to settle a civil case, whether Smoak displayed improper bias against Francis, and whether Francis’s brazen conduct at the settlement negotiation actually rises to the level of a “threat” trumping the presumption of confidentiality - as discussed previously in this blog, below.

If the 11th Circuit ever clears this up, I’ll try to give an update here.

‘Til then!

“Girls Gone Wild” update (April 12)

Bryan Lieb — Thu, 12 Apr 2007 19:56:33 +0000

“Girls Gone Wild” mogul Joe Francis has settled the case that landed him in a jail, David Angier reports on Panama City NEWSHERALD.com (dead link – see cache). Francis seems to be making an effort to appear diplomatic prior to his bail hearing set for today, leading up to an initial hearing on the criminal contempt charge set for April 23.

“I deeply regret some of the things I said about the plaintiffs’ lawyers, the judge and the entire case,” Francis said.

Scott Barbour, president of Mantra Films Inc., the company that puts out the “Girls Gone Wild” videos, said comments Francis and the spokesman made — that this was a case of “judges gone wild” — were supposed to be a joke.

Whether we’ll ever get the 11th Circuit’s opinion on the propriety of Judge Smoak’s actions in this case remains to be seen. I’ll be disappointed if we don’t.

Meanwhile, Francis has been indicted in Nevada for federal tax evasion “for deducting more than $20 million in false business expenses.”

“Girls Gone Wild” update (April 11)

Bryan Lieb — Wed, 11 Apr 2007 16:42:17 +0000

The latest reported by David Angier, posted on Panama City NEWSHERALD.com (dead link – see this cache). Judge Smoak has now filed a complaint for criminal contempt against Francis. Again, this looks like a personal vendetta on Smoak’s part.

“We’re in disbelief that a judge can hold Joe on criminal contempt stemming from a civil complaint. We have teams of lawyers looking to see if this has ever happened before.” — Francis’s lawyers

Detailed article on Francis’s “colorful” conduct at the settlement negotiation.

“This sort of verbal posturing,” Dickey [Francis's attorney] said, referring to Francis’ comments during mediation, “is nothing new to anyone who has spent substantial time mediating and could not have been construed as a threat by plaintiff’s highly experienced attorneys.” Dickey said Francis’ behavior only ended one portion of the mediation process, which went on for another day and a half. …

Pontikes [an attorney for the Plaintiffs] said she filed the motion, despite the confidentiality requirements of mediation, because Francis made threats to “ruin” and “bury” the plaintiffs’ lawyers. Threats of violence made by a party in mediation are not required to be confidential. Dickey said Francis’ words were not meant literally and could not be taken as a threat of violence. “There is no allegation that Francis was holding a shovel when he made his comment,” Dickey said.

I’m not buying the “threat of violence” line from the plaintiffs’ attorneys. But I have to hand it to them for their ruthless tactics. That’s their job. But nothing I’ve just read changes my opinion that Judge Smoak is way out of line.

Federal Judge: Settle GGW Case or Go To Jail

Bryan Lieb — Tue, 10 Apr 2007 21:33:16 +0000

Joe Francis, multimillionaire mogul of the racy “Girls Gone Wild” video series, was the recipient of an eyebrow-raising ultimatum from U.S. District Judge Richard Smoak (Northern District of Florida) according to an Associated Press article posted on CNN’s website today.

Francis is being sued by seven women who claim they were underage when filmed by his company. Francis counters that the women signed releases and lied about their age, a claim doubtless contested by the women on various grounds.

The case took its odd turn when a settlement negotiation broke down, and the women’s attorneys complained to Smoak at a hearing that Francis, per CNN’s AP article, ”became enraged during the settlement talks, shouting obscenities at the lawyers and threatening to ‘bury them.’”

According to an AP article by Melissa Nelson appearing on April 1 on OCALA.com:

Larry Selander, an attorney for one of the women, testified Friday that Francis became enraged during the settlement negotiations.

“What I remember most clearly is [Francis'] eyes and face,” he testified, according to the Panama City News Herald. “I looked into his eyes, and I thought he was gonna slug me.

Which, considering the dateline, leaves me wondering if this was all an elaborate April Fools joke. Why is attorney Selander discussing the settlement negotiation with Judge Smoak? Shouldn’t Selander’s recourse be to report the ”assault” to the authorities and/or file a civil case for damages for assault if he actually felt threatened?

Per the same article, Francis’s counsel objected (rightly it seems) to the content of the settlement negotiation meeting being discussed, relying I assume on the ordinary rule of evidence that statements made during settlement negotiations are confidential and cannot be used as evidence.

The upshot of this was Smoak ordering Francis to settle the case or go to jail. Since when can a judge do that!? Using the threat of jail to intimidate a party to a private settlement negotiation? What country is Florida in? In the United States, the function of a civil court is that of an objective and neutral referee when the parties cannot privately resolve a dispute. Is Smoak’s action not only astonishingly improper – but also quite possibly violative of Francis’s civil rights? Or is this story just so badly reported by the AP that it is impossible to understand the legal proprieties?

Francis was quoted in an April 6 AP story posted on the East Valley Tribune’s website as saying that Smoak is “a judge gone wild” who has called Francis “the devil” and “an evildoer” – which, if true, seem to be grounds for Smoak to be removed from the case as openly biased against Francis.

Perhaps Smoak (again, if these allegations are true) is cut from the same moral mold as former Alabama Chief Justice Roy Moore (removed from his office by the Alabama’s judicial ethics panel for failing to comply with a federal judge’s order to remove a Ten Commandments monument). Last I checked, advocacy for a “moral” position – be it for the Ten Commandments or against the “exploitation” represented by the “Girls Gone Wild” franchise – is not a desired quality in a judge’s public function. Attorneys are advocates, they apply the pressure. A judge is – must be - a neutral arbitrator.

Francis has now been taken into custody per the contempt citation issued by Smoak after the negotiations stalled. Francis’s attorneys appealed to the 11th Circuit Court of Appeals, but the Circuit Court did not act to keep him out of jail prior to the appeal being heard, the AP reports. From his latest statements, it appears that Francis will attempt to settle the case at any cost in order to stay out of jail, while insisting that he is under duress and any settlement will be overturned on appeal.

If this story has been reported with any degree of accuracy, Francis’s plight seems unjust, and his hope of reversal on appeal seems bright.

If you know what’s really going on here, think you do, or want to share your opinion – please comment.