#16490 - Judges - Professional Responsibility

08. Judges

P. 461-494

ABA Rule of Judicial Conduct

1.2: Promoting Confidence in the Judiciary

• A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality* of the judiciary, and shall avoid impropriety and the appearance of impropriety.

• *“Impartiality . . . mean[s] absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintenance of an open mind in considering issues that may come before a judge.”

2.11(A): Disqualification

• (A) A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality* might reasonably be questioned . . . .

• *“Impartiality . . . mean[s] absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintenance of an open mind in considering issues that may come before a judge.”

28 U.S.C.

§ 455

• (a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

  • [not judge’s perception, but the public’s]

• (b)(1) “[A judge] shall also disqualify himself . . . [w]here he has a personal bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceeding;

• (b)(4) “[A judge] shall also disqualify himself . . . [if] [h]e knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding…”

• (c) “A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household.

• (e) “No justice, judge, or magistrate shall accept from the parties to the proceeding a waiver of any ground for disqualification enumerated in subsection (b).

  • Where the ground for disqualification arises only under subsection (a), waiver may be accepted provided it is preceded by a full disclosure on the record of the basis for disqualification.”

• See also (f) if any judge would be disqualified due to financial interest, after substantial judicial time has been devoted to the matter, disqualification is not required if the judge… divests himself or herself of the interest that provides the grounds for the disqualification

A. Conflicts and Disqualification

Supreme Court Justices are not governed by any ethics code

• When the committee of the US Judicial Conference adopted the Code of Conduct for US Judges, is composed of lower court judges who lack authority to adopt ethical rules that bind the Justices

• The Justices of Supreme Court did not impose ethical rules on themselves either

• Hence, the Supreme Court Justices decide whether to recuse themselves

Caperton v. A.T. Massey Coal Co. (466)

• Landmark case for civil cases

• Facts: In 2002, Massey was found to be liable for $50M compensation. Blankenship is Massey’s chairman, CEO and president. After verdict and before appeal, Blankenship financially contributed to support Benjamin to run for the Justice election. Benjamin won and denied recusal to the case. Due process requires recusal in this case.

• What is the legal basis for Kennedy’s decision that Justice Benjamin could not sit?

  • Due process clause = biases for disqualification protects the litigants

  • 14^th amendment requires recusal when ‘the probability of actual bias on the part of the judge is too high to be constitutionally tolerable” due process clause

  • c.f. ethic rules “appearance of impartiality, protects the public

• What is the legal basis for Kennedy’s decision that Justice Benjamin could not sit?

  • B did not honestly think that he is bias himself/ court cannot say that B is actually bias

  • But doesn’t matter, it is the probability of being actually bias

• Aetna Life Ins Co. v Lavoie

  • the justice who casted the deciding vote was, at the same time, P in a nearly identical lawsuit pending in lower court his deciding vote undoubtedly raised the stakes for the insurance D in the justice’s suit.

  • Court need not decide whether the justice was influenced, but to objectively consider whether it would offer a possible temptation to the average judge to lead him not to hold the balance nice, clear and true

• Test for Serious Risk of Actual Bias (p. 470)

  • 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

  • Based on objective and reasonable perceptions

• How Do We Identify Serious Risk of Actual Bias (p. 470) difficult to know

  • The inquiry centers on the contributions’ relative size in comparison to:

    1. the total amount of money contributed to the campaign, and

    2. the total amount spent in the election, and

    3. the apparent effect such contribution had on the outcome of the election (closeness of the vote matters)

  • Contributions by Blankenship

    • $1,000 (statutory max) directly to Benjamin’s campaign committee

    • $2.5M to “And For The Sake Of The Kids”

    • Over $500,000 on direct mailings letters soliciting donations and TV and newspaper ads

  • Relative Contributions - Blankenship’s total contributions were:

    • more than the total amount spent by all other Benjamin supporters, and

    • 3X the amount spent by Benjamin’s own Committee

  • Caperton also claimed that Benjamin spent $1M more than the total amount spent by the campaign committees of both candidates combined

• Maxim “no man is allowed to be a judge in his own cause, his interest would certainly bias his judgment and corrupt his integrity

• Reasonably foreseeable when the contributions were made, that the pending case would be before the newly elected justice F

• Not to inquire whether Blankenship’s contribution was necessary cause of Benjamin’s victory

  • not every campaign contribution by a litigant creates a possibility of bias that requires a judge’s recusal

• To inquire whether there is a serious, objective risk of actual bias that required the justice’s recusal [i.e. litigant need not prove actual bias]

• Emergence of local tribunals where a judge had a financial interest in the outcome of a case, although the interest was less than what would have been considered personal/ direct at common law

• Roberts’ dissent:

  • Justice Benjamin might have won because the voters thought he would be a better judge than his opponent. Not certain that Blankenship chose the judge in his own cause.

  • Roberts’ dissent posed 40 hypothetical fact patterns, which he believed showed that Kennedy had failed to state a principled basis for his decision -- that there was no rational limit for Kennedy’s test for recusal [in fact, no flood of recusal claim after this case]

    • What if the large expenditure is made by an industry association/ trade union/ P’s bar, must the judge recuse in all cases? [

    • What if the case involves social/ ideological issue rather than financial?

      • Must the judge recuse from, e.g. abortion rights, if he receives support from individuals who feel strongly about the issue?

      • If the supporter wants to help elect judges who are ‘tough on crime’, must the judge recuse in all criminal cases?

      • [Sometimes difficult to identify: 1) who is making the contribution due to direct/indirect contributions; and 2), how much though group/ individual judge cannot make promises on the way they would rule cases]

      • Instead of direct contribution to judicial candidates, interest groups and political parties increasingly spent money independently of campaigns, often lead to less transparency

      • Judges will tilt towards favoring interest that have the money to contribute their future campaign anyway; vs. it is the donors and supporters favor judicial candidates whose policy preferences they find compatible

    • What if the case implicate a regulatory issue that has great importance to the party making the expenditures, even though he has no direct financial interest in the outcome?

  • The limits of Kennedy’s test are unknowable and will therefore result in much confusion?

• Williams v Pennsylvania conflicted judge’s vote is not dispositive: doesn’t make a different

  • the outcome doesn’t lessen the unfairness to the affected party

  • judges who were exposed to a disqualified judge may still be influenced by their colleagues’ view when they rehear the case

More About Blankenship - New York Times

• April 6, 7, & 8, 2016

  • In April 2016, Blankenship was sentenced to 1 year in prison “for conspiring to violate federal mine safety laws at the Upper Big Branch mine in West Virginia, where 29 workers died in an explosion” in 2010.

  • During sentencing, the U.S. District Judge mentioned Blankenship’s “’part in a dangerous conspiracy’ aimed at ‘putting profitability of the company ahead of the safety of [his] employees.’”

• April 25, 2018

  • “Don Blankenship is running for the United States Senate as a proud West Virginian with Appalachian roots, but his primary residence is a $2.4 million villa with palm trees and an infinity pool near Las Vegas.”

  • “The former coal mining executive is widely known for spending a year in prison for his role in a mining explosion that claimed 29 lives. Yet ahead of the May 8 primary election, he is running as a champion of miners and has bought TV ads that challenge settled facts about his role in the disaster.”

Ethical and Statutory...