U.S. SC decision may facilitate change to states' recusal policies

John O'Brien Jun. 10, 2009, 2:58pm


WASHINGTON (Legal Newsline) - Changes to the way state Supreme Courts handle recusal issues may be coming after a recent U.S. Supreme Court decision paved the way for them.

In a 5-4 decision released Monday, the Supreme Court ruled West Virginia Chief Justice Brent Benjamin should have disqualified himself from the case of a campaign supporter. Now, state Supreme Courts may have to take a look at protecting themselves from similar issues.

"Under our precedents there are objective standards that require recusal when 'the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable,'" Justice Anthony Kennedy wrote for the majority.

A report by The Associated Press says Ohio Supreme Court Chief Justice Thomas Moyer plans to hold a conference this year to discuss judicial policies.

Ann Lousin, a professor at The John Marshall Law School in Chicago, said Illinois should change its judicial ethics code.

"One, Illinois can adopt a constitutional amendment on recusal of Illinois Supreme Court justices; two, it can adopt judicial campaign financing statutes; and three, it can choose to amend the Supreme Court Rules on recusal when campaign contributions are involved," she said.

Lousin noted that in the 2004 supreme court race in Illinois, more than $9 million was spent.

Illinois' Supreme Court Rule 63(C) says that a judge should recuse him/herself "in a proceeding in which the judge's impartiality might reasonably be questioned," but Lousin said "the list of circumstances that follows does not include campaign contributions. In all probability this case will necessitate Illinois taking action."

Hugh Caperton, operator of Harman Mining Company, had sought Benjamin's recusal from hearing a case involving Massey Energy's appeal of a $50 million verdict against it for fraudulently harming Harman's business.

The state Supreme Court twice overturned the verdict in Massey's favor. Benjamin refused on both occasions, even though Massey chief Don Blankenship spent about $3 million on a campaign aimed at unseating Benjamin's Democratic opponent in the 2004 election, former Justice Warren McGraw.

Caperton contended that Benjamin was biased towards Massey because of Blankenship's campaign expenditures targeting McGraw.

Former Justice Elliott "Spike" Maynard did recuse himself from re-hearing the case after photos surfaced in early 2008 showing himself and Blankenship together while vacationing on the French Riviera. Former Justice Larry Starcher also recused himself from the re-hearing based on his previous public comments critical of Blankenship.

Starcher had urged Benjamin to step down, too, saying that Blankenship had created a "cancer in the affairs of this court."

U.S. Supreme Court Chief Justice John Roberts, who authored a dissent, wrote that the Court's decision might not provide much guidance for states who seek change.

"Today, however, the court enlists the Due Process Clause to overturn a judge's failure to recuse because of a 'probability of bias,'" Roberts wrote. "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."

From Legal Newsline: Reach John O'Brien by e-mail at john@legalnewsline.com.

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