Supreme Court: Recusal and Due Process

Under Judiciary Law § 14 a New York judge must recuse himself from a case in which he is party, has been an attorney, in which he is interested, or "if he is related by consanguinity or affinity to any party to the controversy within the sixth degree." In the absence of such relationships, it is long established in both civil and criminal cases that whether a judge will disqualify himself is "within the personal conscience of the court." People v. MacShane, 11 N.Y.3d 841 (2008).

Today, a majority of the United States Supreme Court ruled that there is an objective Due Process of Law consideration to recusal which goes beyond questions of personal conscience or soul searching by a judge: even when there is no proof of actual bias by a judge, and a judge states he is not biased, due process requires that a judge recuse himself when, under all the circumstances of the case, there is a serious risk of actual bias. Caperton v. A.T. Massey Coal Co. Inc. 

After a jury awarded the plaintiffs $50 million against defendant A.T. Massey Coal Co., the company appealed. West Virginia was holding its judicial elections and the chairman and chief executive officer of the coal company, Don Blankenship, spent over $3 million to support the candidacy of Brent Benjamin for the West Virginia Supreme Court of Appeals. Benjamin was elected and eventually a divided appeals court voted to reverse the judgment against the coal company. Benjamin cast the decisive vote with the majority.

The majority on the United States Supreme Court concluded there was an objective probability of actual bias for two reasons. First, the size of Blankenship's contributions to the judge's election had a significant and disproportionate influence in placing Benjamin on the bench. Second, there was a clear temporal relationship between the campaign contributions, Benjamin's election, and the pendency of the case. "It was reasonably foreseeable, when the campaign contributions were made, that the pending case would be before the newly elected justice." Because the probability of actual bias was too great, due process requires that Benjamin recuse himself.

In response to motions asking him to disqualify himself, Judge Benjamin had written that he was not biased in the case. Caperton states that this personal determination does not meet the objective standard required by due process of law. I have long believed that the "personal conscience" standard in New York is inadequate to protect against the risk of bias, and in some instances actually brings the judiciary into disrepute. The Caperton majority acknowledges that the case presents "extreme facts." Whether New York will limit Caperton to its facts, and adhere solely to "personal conscience," remains to be seen. I hope not. 

Today's Other Decisions: The Supreme Court handed down four other decisions today. In Republic of Iraq v. Beaty a unanimous Court ruled that the current Iraqi government is not liable under the Foreign Services Immunities Act for the actions of the Saddam Hussein regime; in United States v. Denedo the Court upheld the power of the Navy-Marine Corps Court of Criminal Appeals to entertain coram nobis petitions; in Boyle v. United States the Court addresses what is an association-in-fact enterprise under the Racketeer Influenced and Corrupt Organizations Act (RICO); and in United States ex rel Eisenstein v. City of New York the Court addresses the timeliness of the filing of a notice of appeal under the Federal Rules of Appellate Procedure.