Thursday, April 7, 2011

Wisconsin's Supreme Court Election and Caperton v. Massey

In Caperton v. Massey (2009) the United States Supreme Court ruled that the failure of West Virginia Supreme Court Justice Brent Benjamin to recuse himself from a case in which a major campaign supporter was a party constituted a violation of the Due Process Clause of the 14th Amendment. Though there was no evidence or allegation of an actual quid pro quo arrangement between Massey's CEO and Justice Benjamin, the Court reasoned that the unusually large contributions on behalf of Justice Benjamin by the CEO of Massey Coal created "a risk of actual bias" because the judge had a "direct, personal, substantial, pecuniary interest" in the outcome of the case. Since there is no evidence that Justice Benjamin was personally remunerated for his performance on the West Virginia Court, it is implicit that campaign contributions may constitute a "direct, personal, substantial, pecuniary interest."

This raises and interesting question regarding the recent judicial election in Wisconsin.

Given the Greater Wisconsin Committee's unprecedented $1.3M support for JoAnne Kloppenburg in the recent Wisconsin Supreme Court election, would Caperton require her to recuse herself from cases in which the Greater Wisconsin Committee has a clear interest in the outcome (including litigation over Gov. Walker's union legislation), even if that interest is principally ideological?

I think it is fair to say that the Greater Wisconsin Committee's support was based on an attempt to influence the Wisconsin Supreme Court's behavior on a specific prospective set of cases. Indeed, its website is quite clear on this point. Moreover, its future support of Justice Kloppenburg (presuming she ultimately wins) undoubtedly relies on her reaching particular sets of conclusions in those cases. By making a set of outsized expenditures on her behalf, the Greater Wisonsin committee has created a "direct, personal, substantial, pecuniary interest" for future Justice Kloppenburg that would seem to require her recusal under Caperton.

For whatever it's worth, I don't care for Caperton, and I think the hypothetical case of Justice Kloppenburg illustrates the substantial shortcomings of requiring recusals based on interests defined in terms of legal support for a political campaign. Nevertheless, the case stands, for now, and the obvious distinctions between Massey Coal and the Greater Wisconsin Committee---i.e. Massey is an actual party (not just an interested party) in Caperton and that Massey is a for-profit corporation---don't remove the issue of creating a risk or probability of biasing the judge based on her gratitude and desire for continued electoral support tied manifesting itself in a particular prospective case or cases in which the donor has a strong interest.

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