No. 08-22

In the Supreme Court of the United States

__________

HUGH M. CAPERTON, ET AL.Petitioners,

v.

A.T. MASSEY COAL COMPANY, INC., ET AL.,Respondents.

__________On Writ of Certiorari to the

West Virginia Supreme Court of Appeals

BRIEF OF LAW PROFESSORS RONALD D. ROTUNDA AND MICHAEL R.

DIMINO AS AMICI CURIAE INSUPPORT OF RESPONDENTS

__________

C. THOMAS LUDDEN Counsel of Record

PHILLIP E. SELTZERLIPSON, NEILSON, COLE, SELTZER & GARIN, P.C.

3910 Telegraph Road, Suite 200 Bloomfield Hills, Michigan 48302

(248) 593-5000

i

TABLE OF CONTENTS

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . i

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . iv

STATEMENT OF INTEREST . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 1

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I. Petitioners Are Proposing That this Court Makea Drastic Break from Precedent, Which Imposedthe Drastic Remedy of Recusal for Due ProcessViolations Only in Very Limited Circumstances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. This Court has found that the DueProcess Clause requires recusal of a judgeonly when the judge has a direct financialinterest in the outcome or when the judgehas a party’s or prosecutor’s interest inthe outcome of criminal contempthearings . . . . . . . . . . . . . . . . . . . . . . . . 4

ii

B. Petitioners’ new test is such a significantbreak from prior precedent that it wouldrequire recusal on due process grounds insituations where the federal statute doesnot require disqualification . . . . . . . . 8

II. Although the Petitioners Seek a Clear Result forThemselves, Their Proposed Standards WouldNot Create a Manageable Method forDetermining Whether Due Process RequiresThat Future Judges Recuse Themselves . . . 12

A. The proposals offered by Petitioners andtheir Amici will expand to cover a widearray of situations . . . . . . . . . . . . . . . 12

B. Adopting one of the ambiguous standardsoffered by Petitioners or their Amici willcreate a dramatic increase in the amountof litigation regarding whether judgesshould recuse themselves . . . . . . . . . 15

C. Given the vast differences in state courtjudicial systems, it would beextraordinarily difficult to establish aclear test for ascertaining a due processclause violation . . . . . . . . . . . . . . . . . 17

iii

D. While granting the relief requested byPetitioners would provide only limitedguidance for future courts, it would createan enormous threat to the practice ofelecting state court judges . . . . . . . . . 20

RELIEF REQUESTED . . . . . . . . . . . . . . . . . . . . . . 21

iv

INDEX OF AUTHORITIES

Case Law

Aetna Life Insurance Company v. Lavoie, 475 U.S. 813 (1986) . . . . . . . . . . . . . . . . . . . . . . 5, 6, 8

Boumediene v. Bush, ___ U.S. ___, 128 S.Ct. 2229 (2008) . . . . . . . . . . . . 11

Clinton v. Jones, 520 U.S. 681 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . 11

Del Vecchio v. Illinois Department of Corrections, 31 F.3d 1363 (7th Cir 1994) . . . . . . . . . . . . . . . . . . . 7

In re Murchison, 349 U.S. 133 (1955) . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Mayberry v. Pennsylvania, 400 U.S. 455 (1971) . . . . . . . . . . . . . . . . . . . . . . . 6, 13

Republican Party of Minnesota v. White, 536 U.S. 765 (2002) . . . . . . . . . . . . . . . 16, 17, 19-21

Tumey v. Ohio, 273 U.S. 510 (1927) . . . . . . . . . . . . . . . . . . . 3, 4, 8, 11

United States v. Nixon, 418 U.S. 683 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . 11

v

Ward v. Village of Monroeville, 409 U.S. 57 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5

Statutes28 U.S.C. § 455(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

W. Va. Code § 3-8-12(g) . . . . . . . . . . . . . . . . . . . . . . 19

Other Authorities

Ronald D. Rotunda & John S. Dzienkowski, LegalEthics: the Lawyer’s Deskbook on ProfessionalResponsibility (ABA/Thomson-West, 2008 edition)13, 14

Ronald D. Rotunda, A Preliminary Empirical Inquiryinto the Connection Between Judicial Decision Makingand Campaign Contributions to Judicial Candidates,The Professional Lawyer, Winter 2003, at 16 . . . . . 9

Ronald D. Rotunda, Alleged Conflicts of InterestBecause of the “Appearance of Impropriety,” 33 HofstraL. Rev. 1141 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Ronald D. Rotunda, Judicial Ethics, the Appearance ofImpropriety, and the Proposed New ABA Judicial Code(The Howard Lichtenstein Lecture in Legal Ethics), 34Hofstra L. Rev. 1337 (2006) . . . . . . . . . . . . . . . . . . . 7

Ronald D. Rotunda, The Propriety of a Judge’s Failureto Recuse when Being Considered for Another Position,19 Geo. J. Legal Ethics 1187 (2006) . . . . . . . . . . . . 10

1

1 The parties have consented to the filing of this brief.Petitioners and Respondents have each filed a letter of consent toall amicus briefs with the Clerk of the Court. No counsel for aparty authored this brief in whole or in part, and no person orentity other than amici or their counsel contributed monetarily tothe preparation or submission of this brief.

STATEMENT OF INTEREST1

Amici curiae, listed by name in the Appendix,are professors of law at law schools in the UnitedStates, who teach, research, write and speak aboutprofessional and judicial ethics and constitutional law.As such, amici curiae have an interest in ensuring thatthe law is developed consistently with fundamentalethical principles that underlie our system ofjurisprudence. Specifically, amici curiae submit thisbrief to highlight the dramatic break that Petitionerswant this Court to make from existing precedent andsome of the numerous problems that would occur if thisCourt proceeded down the path suggested byPetitioners. The Amici are submitting this brief insupport of the Respondents.

SUMMARY OF ARGUMENTMost issues related to judicial disqualification do

not reach the level where the parties’ constitutionalrights need to be adjudicated. Historically, this Courthas found a violation of the Due Process Clause only ifa judge has an interest, almost exclusively financial, inthe outcome of the case. In other words, due processrequires the drastic remedy of recusal only when thetraditional prohibition that Blackstone and Cokedescribed – that a judge cannot sit on his own case –applies.

Now, however, Petitioners and their Amici ask

2

this Court to create a new test, variously described as“probability of bias,” “appearance of bias,” “appearanceof impropriety,” or even “reasonable appearance ofimpropriety.” If these concerns were raised to the levelof constitutional prohibitions, they would engraft anunmanageable system of federal review onto the statecourt system. In the end, the problems created by anyof these standards would likely do far more toundermine the public’s confidence in the judiciary thanthe current rules.

Moreover, if adopted, these proposals wouldswiftly threaten the practice of electing state courtjudges even though there have been state judicialelections for longer than the Due Process Clause of theFourteenth Amendment has existed. Finally, thisproposal threatens one of the most vibrant examples offederalism, as the states currently exhibit an diverseand evolving set of methods for selecting judges,deciding how and whether they should retain theirpositions and deciding when they cannot hearparticular cases. Consequently, this Court shouldreaffirm its traditional rule and affirm the judgmentbelow.

STATEMENT OF FACTSMany of the Amici supporting the Petitioners

state that a party in this case made contributions tothe campaign of West Virginia Justice Brent Benjamin.(See, e.g., ABA Amicus Brief, p. 20). In fact, no partymade any donations to his campaign, with theexception of a $1,000 contribution by the PAC of A.T.Massey Coal. Instead, one individual, DonBlankenship, made a $1,000 contribution to JusticeBenjamin’s campaign. (JA 208a). Mr. Blankenshipalso made independent expenditures and donated his

3

own money to a 527 organization, which made its ownindependent expenditures to support the election ofJustice Benjamin. (JA 117a-141a). Although Mr.Blankenship is the Chairman, CEO and President ofMassey Energy, which owns the Respondents, thedistinction between corporations and their officers is amatter of hornbook law. In addition, while Mr.Blankenship is a shareholder of Massey Energy, heowns less than 0.5% of this publicly-traded corporation.Therefore, as a shareholder, Mr. Blankenship’s shareof the judgment in this case (if the corporate veil waspierced) that was reversed by the West VirginiaSupreme Court of Appeals was $175,000, which is asmall fraction of what he contributed to the 527organization during the 2004 election cycle. CompareMassey Energy Co., Quarterly Report (Form 10-Q) I(11/7/08) (85.1 million shares outstanding), withStatement of Changes in Beneficial Ownership (Form4) 1 (11/18/08) (296,935 shares owned by Blankenship).

ARGUMENT I. Petitioners Are Proposing That this Court Make

a Drastic Break from Precedent, WhichImposed the Drastic Remedy of Recusal for DueProcess Violations Only in Very LimitedCircumstances. “All questions of judicial qualification may not

involve constitutional validity. Thus matters ofkinship, personal bias, state policy, remoteness ofinterest would seem generally to be matters merely oflegislative discretion.” Tumey v. Ohio, 273 U.S. 510,520 (1927). Following this distinction, this Court hasfound that due process requires recusal only in twospecific circumstances.

4

A. This Court has found that the DueProcess Clause requires recusal of ajudge only when the judge has a directfinancial interest in the outcome or whenthe judge has a party’s or prosecutor’sinterest in the outcome of criminalcontempt hearings.

The first category of due process cases are thosein which the judge or magistrate has a “direct,substantial, pecuniary” interest in the outcome of thedispute. Most notably, in Tumey, the mayor, sitting asa municipal judge, had the financial incentive toconvict defendants because there was “no way by whichthe mayor may be paid for services as judge, if he didnot convict those who are brought before him.” 273U.S. at 520. In other words, the judge was being paida contingency fee based on his conviction rate.Therefore, this Court held that the defendants whosecases were heard by the mayor/municipal judge weredeprived of due process under the FourteenthAmendment because “the judge . . . has a direct,personal, substantial pecuniary interest in reaching aconclusion against [the defendant] in his case.” Id. at523.

In Ward v. Village of Monroeville, 409 U.S. 57,58 (1972), this Court considered whether due processconcerns prevented a mayor from also sitting as amagistrate to hear ordinance violations and trafficoffenses. Between 1964 and 1968, the Village ofMonroeville had received between one third and onehalf of its annual revenue from “fines, forfeitures, costsand fees imposed . . . in the mayor’s court. 409 U.S. at58. Therefore, this Court concluded that recusal wasrequired because the mayor had an interest in

5

“maintain[ing] the high level of contribution from themayor’s court.” Id. at 59.

Aetna Life Insurance Company v. Lavoie, 475U.S. 813 (1986), illustrates the distinction betweenpotential bias, which does not require recusal on dueprocess grounds, and direct, personal, financialinterest, which does. Alabama Supreme Court JusticeEmbry was a party to two cases against insurancecompanies that raised the substantially similar legalissues as those raised in Aetna. Id. at 817. Despitethis, Justice Embry did not recuse himself, but insteadjoined the majority opinion of that court. Id.

The Aetna petitioners first claimed that theirdue process rights were violated by Justice Embry’sparticipation in their case because he had expressed“general hostility toward insurance companies thatwere dilatory in paying claims . . . in his deposition. . ..” 475 U.S. at 820. This Court rejected this argument,holding that “allegations of bias and prejudice on thisgeneral basis, however, are insufficient to establish anyconstitutional violation.” Id. at 821.

But, the decision that Justice Embry joined alsocontrolled the resolution of the legal issues in the casesin which he was a party. Therefore, this Court heldthat:

while recognizing that the Constitutiondoes not reach every issue of judicialqualification, . . . “it certainly violates theFourteenth Amendment . . . to subject [aperson’s] livery or property to thejudgment of a court the judge of whichhas a direct, personal, pecuniary interest

6

2 None of these criminal contempt cases “involve[d] . . . thelong-exercised power of courts summarily to punish certainconduct occurring in open court.” In re Murchison, 349 U.S. 133,134 (1955).

in reaching a conclusion against him inhis case.”

475 U.S. at 821-822 (citing Tumey) (all alterationsexcept first in original).

The second category of cases finding due processviolations sufficient to justify recusal involve criminalcontempt proceedings in which the judge conductingthe contempt hearing had another interest in theoutcome of the criminal contempt case.2 For example,the Court in In re Murchison, 349 U.S. 133, 134 (1955),considered whether a judge who had served as a one-man grand jury from which the criminal contemptcharges arose could also preside over the contemptcase. Recognizing that the interest of such a judge wassubstantially similar to that of a prosecutor, the Courtfound that it would violate the defendants’ due processrights for the same judge to serve as the one-mangrand jury and preside over the criminal contempthearing. Id. at 137, 139.

Following Murchison, this Court has also found“that by reason of the Due Process Clause of theFourteenth Amendment a defendant in criminalcontempt proceedings should be given a public trialbefore a judge other than the one reviled by thecontemnor.” Mayberry v. Pennsylvania, 400 U.S. 455,466 (1971). In Mayberry, then, the judge reviled by thealleged contemnor could not preside over the hearingbecause the judge was essentially both a victim of and

7

3 Ronald D. Rotunda, Judicial Ethics, the Appearance ofImpropriety, and the Proposed New ABA Judicial Code (TheHoward Lichtenstein Lecture in Legal Ethics), 34 Hofstra L. Rev.1337 (2006).

4 Ronald D. Rotunda, Alleged Conflicts of Interest Becauseof the “Appearance of Impropriety,” 33 Hofstra L. Rev. 1141(2005).

witness to the alleged crime. The unifying thread in these cases, then, is not

whether there was actual, potential or probable bias.Instead, recusal was required because the judicialofficer faced the competing interests of adjudicating thecase fairly and benefitting from one result. Therefore,the “due process clause sometimes requires a judge torecuse himself without a showing of actual bias,” DelVecchio v. Illinois Department of Corrections, 31 F.3d1363, 1371 (7th Cir 1994) (en banc), because actualbias is not the test for recusal on due process grounds.

The Court created easily applied rules for thesecases. It did not adopt a vague “appearance ofimpropriety ” rule because that language is too vagueto form a rule. It may be the reason why thelegislature or the court creates a disqualification rule,but it is not a rule in itself3 – it is too ambiguous forthat. The organized bar knows that it does not want tobe governed by such a indeterminate standard, whichis why the ABA no longer uses that language as a rulegoverning lawyers.4 Therefore, this Court should findthat similar language is also too vague for judges.

8

B. Petitioners’ new test is such a significantbreak from prior precedent that it wouldrequire recusal on due process grounds insituations where the federal statute doesnot require disqualification.

“[M]ost matters relating to judicialdisqualification [do] not rise to a constitutional level.”Aetna, supra, 475 U.S. at 820 (citing FTC v. CementInstitute, 333 U.S. 683 (1948) (alterations in Aetna).For example, Tumey classified “matters of kinship,personal bias, state policy, remoteness of interest . . .[as] matters merely of legislative discretion.” 273 U.S.at 520.

Congress has exercised its discretion andenacted a federal statute mandating disqualification insituations that do not require recusal as a matter ofdue process. Federal law expressly provides that“[a]ny justice, judge, or magistrate judge of the UnitedStates shall disqualify himself in any proceeding inwhich his impartiality might reasonably bequestioned.” 28 U.S.C. § 455(a). Disqualification isalso required when the judge “has a personal bias orprejudice concerning a party, or personal knowledge ofdisputed evidentiary facts concerning the proceeding.”28 U.S.C. § 455(b).

Petitioners and their Amici use phrases similarto this statutory language to describe their proposedstandards. Therefore, if their standard requiresdisqualification of Justice Benjamin, then federaljudges should already be disqualifying themselves insimilar circumstances under this federal statute.

In their brief on the merits, Petitioners arguethat there was a “probability of bias” arising out of a

9

5 Often mischaracterized as a contribution by a party toJustice Benjamin’s campaign.

6 It is generally assumed that contributions to a judge’scampaign will influence the judge’s decision making. But, thisassumption may not be warranted. A review of three studies hasled one academic to conclude that campaign contributions do notinfluence results. Ronald D. Rotunda, A Preliminary EmpiricalInquiry into the Connection Between Judicial Decision Makingand Campaign Contributions to Judicial Candidates, TheProfessional Lawyer, Winter 2003, at 16, 18-19. In fact, some ofthe statistical evidence in those studies suggests that contributorsare more likely to lose than win their cases before judges that theysupported. Id. at 17-18.

“debt of gratitude” owed by Justice Benjamin becauseof Mr. Blankenship’s efforts to defeat JusticeBenjamin’s opponent. The Amici supporting thePetitioner argue that the independent expendituresfunded by Mr. Blankenship,5 create an “appearance ofbias,” an “appearance of impropriety,” or a “reasonableappearance of impropriety” that requires recusal as amatter of constitutional law.

But, if such indirect expenditures during aprevious election create a “debt of gratitude,”6 thenhelp in being nominated or confirmed to a lifetimeappointment on the federal bench should create atleast as great a “debt of gratitude.” Moreover, if a“debt of gratitude” for past assistance creates aprobability of bias or the appearance of either bias orimpropriety, then ongoing or potential assistance inobtaining a new position should also create this sameprobability and improper appearances. This wouldespecially be the case in the federal judicial system,where justices and judges have life tenure. After all,

10

no matter how much help a state court judge receivesin winning one election, the judge will usually have toface the electorate again.

Associate Justices of this Court have becomeChief Justice, and both Circuit and District Courtjudges have been elevated to higher federal courts. Seegenerally Ronald D. Rotunda, The Propriety of aJudge’s Failure to Recuse when Being Considered forAnother Position, 19 Geo. J. Legal Ethics 1187, 1202-04 (2006). In addition, federal judges have beenappointed to positions within the administration,including Solicitor General, Director of the FederalBureau of Investigation, Secretary of Labor, Securityof Homeland Security, and Ambassador to the UnitedNations. See generally id. at 1204-08.

Therefore, if the “probability of bias” or the“appearance of impropriety” arising out of a “debt ofgratitude” mandates recusal, then federal judges oughtto disqualify themselves from cases involving issuesvital to an administration after the administrationadvises them that they are under consideration forappointment to another positions. But, federal judgeshave not recused themselves as a matter of generalcourse. 19 Geo. J. Legal Ethics 1187, supra, at 1204-08. This is because these situations do not create areasonable basis for questioning the judge’simpartiality and do not create a personal bias in favorof a party.

Furthermore, the President of the United Stateshas far greater impact upon those who become Justicesof this Court or lower federal court judges than anyone(other than the candidates) could have upon theelection of a state court judge. Therefore, if the dueprocess clause prohibits Justice Benjamin from sitting

11

7 Justice Rehnquist did not participate in the decision,reportedly because of his association with criminal defendants whohad a stake in the outcome of Nixon, rather than because of anydebt of gratitude he owed to the President himself.

on cases involving companies in which Mr.Blankenship has an interest, then the federaldisqualification statute should have prevented Justicesof this Court or other federal court judges from hearingcases in which the President who nominated them is aparty or in which issues important to that Presidentare at stake.

But, the Chief Justice appointed by PresidentNixon wrote an opinion adverse to him in UnitedStates v. Nixon, 418 U.S. 683 (1974), and JusticePowell participated in the case.7 Similarly, neither ofthe two Justices appointed by President Clinton to thisCourt disqualified themselves when he was a party toa case before this Court. Clinton v. Jones, 520 U.S. 681(1997). Chief Justice Roberts and Justice Alitorecently participated in Boumediene v. Bush, ___ U.S.___, 128 S.Ct. 2229 (2008), a case dealing with acontentious issues that was very important to thePresident that appointed them.

Therefore, in the past, federal judges, includingJustices of this Court, have concluded that neither a“debt of gratitude” for their current position nor theongoing potential for appointment to a differentposition justify disqualification under the federalstatute. The federal statute requires disqualificationin situations that this Court has held are not a matterof constitutional law, but instead are left to legislativediscretion. Tumey, 273 U.S. at 520. As a result,Petitioners’ new standard would require recusal as a

12

matter of due process in situations where statutorydisqualification has not been required. Therefore, it isclearly a significant departure from the prior decisionsof this Court, not the logical extension of them. II. Although the Petitioners Seek a Clear Result

for Themselves, Their Proposed StandardsWould Not Create a Manageable Method forDetermining Whether Due Process RequiresThat Future Judges Recuse Themselves. The Petitioners want what all private parties to

a lawsuit want. They have already exhausted alljudicial review before the West Virginia state courts.Since this Court cannot review the state law bases forthe decision, no matter how many new points of lawwere made or how different the new points of law werefrom existing West Virginia case law, they must havea basis in federal law for seeking reversal. They havechosen the due process clause of the FourteenthAmendment as their vehicle for that review.

But, while their desired result is clear, thepotential rules for achieving that result are not andwould create significantly more problems than theywould solve. In fact, they might even exacerbate theproblem whose solution they claim to be proposing.

A. The proposals offered by Petitioners andtheir Amici will expand to cover a widearray of situations.

At the present time, the due process inquiry israther simple. Due process does not require recusalunless (1) the judge will receive a significant personalfinancial benefit if the case is decided one way insteadof another or (2) the judge is playing multiple roles ina criminal contempt hearing. But, if any of the

13

8 See discussion of cases in, Ronald D. Rotunda & John S.Dzienkowski, Legal Ethics: the Lawyer’s Deskbook on ProfessionalResponsibility (ABA/Thomson-West, 2008 edition), at § 10.3-28.

proposals submitted by the Petitioners or their Amiciare adopted, then the due process inquiry will becomemuch more difficult, its outcome will be much moreuncertain, and it will affect many more cases.

If substantial independent expenditures madeduring a past judicial election campaign create such a“probability of bias” that disqualification of thecandidate who benefitted from them is required toensure due process, then the same is true if theopposing candidate prevailed. After all, revenge is atleast as powerful a motivator of human conduct asgratitude. Moreover, this Court has already recognizedthat the due process clause is implicated when a judgeis the victim of contemptuous conduct. Mayberry, 400U.S. at 465-466. Therefore, the first logical extensionof Petitioners’ new rule is that judges can hear only thecases in which neither significant supporters norsignificant opponents of their past campaigns areparties. However, there are many cases where thecourts have refused to disqualify judges because theyknow the party or the lawyer.8 Courts will have toreevaluate all of these state and federal cases if thePetitioners have their way.

In addition, as a practical matter, judges rarelysee the actual parties in a case. The individuals thatjudges usually see during the proceedings are theattorneys for the parties. Therefore, if the due processclause prohibits a judge from hearing a case because aparty has made a significant expenditure, then judgesshould recuse themselves from cases in which any

14

9 Rotunda & Dzienkowski, Legal Ethics: The Lawyer’sDeskbook, at § 10.2-2.11(d)(2)(iv)(3). See also id. at note 84,discussing cases.

attorney has made a significant expenditure. Thislogically means that judges also cannot hear casesinvolving attorneys that opposed the judge’s election.

Creativity is also an important part oflawyering. If Petitioners’ rule is adopted, creative (andcynical) attorneys might conclude that the easiest wayto avoid specific judges is to give the judge a campaigncontribution. In fact, a “clever” attorney could try togame the system by supporting both sides in a statesupreme court race. “Whenever we create rules, wecan expect that there will be those who use them togame the system,” to disqualify judges as the case lawrecognizes.9 If one justice whose legal position wasfavored by the attorney won, then future precedentmight prove favorable. But, if the other justice won,then the attorney might disqualify that justice so thatthe justice would not be able to sit on cases involvingthat attorney. Either way, this attorney would “win.”

Moreover, financial expenditures are only oneform of support. Endorsements by newspapers, laborunions, chambers of commerce, professionalassociations, political parties, well known politicians,and advocacy groups could also be a decisive factor ina judge’s election to the bench. They also may play asignificant role in determining who is nominated orwho is confirmed to a court. Their opposition mayprevent a individual from being either elected orconfirmed to a different judicial position. Therefore,under Petitioners’ theory, the participation of any ofthese organizations or persons in the process, whether

15

for or against, could require the judge not to hear casesinvolving them. If a newspaper supported a judge, hewould not be able to sit in a case involving a libel suitagainst that newspaper.

Furthermore, if the proposed rules are adopted,there is no rational basis for limiting the application ofthese rules to cases in which the judges have beenelected. Everyone who has been confirmed as a federaljudge has received significant support to become ajudge. The nomination of some federal judges hasgenerated significant opposition. This support oropposition should create at least the same “probabilityof bias” or “appearance of bias” as independentexpenditures during an election, and perhaps more.The judge may feel “grateful,” or it will “appear” to thepublic that the judge is responding to the those whosupported his nomination. Or, the federal judge maybe interested in being elevated to a higher bench, sothat there is the “appearance” that he is deciding aparticular way because that ruling would beappreciated by the President or a Senator who wouldpromote his elevation. Therefore, if one of these testswere adopted, its application could not be limited tostate court elected judges, but should also apply to thefederal court system.

B. Adopting one of the ambiguous standardsoffered by Petitioners or their Amici willcreate a dramatic increase in the amountof litigation regarding whether judgesshould recuse themselves.

As several Amici note, motions to disqualify areinfrequently filed and rarely granted. Under any of thenew, ambiguous, and possibly multi-part tests offeredby Petitioners and their Amici, this will certainly

16

10 There is no rational reason why due process challengeswould cease after the first trial court judge is disqualified.

change, which, overall, is a step in the wrong direction.If a “probability of bias” requires the recusal of

a judge, then there are many situations in which anattorney could legitimately argue that such aprobability exists. Attorneys are required to be zealousadvocates for their clients. They may believe that adifferent judge would be better for their case than thejudge or judges originally assigned. Under any of theproposed new due standards or tests, attorneys wouldhave much broader grounds on which to argue that ajudge has a “probability of bias” against them, theirclient or their client’s position. Even if they concludethat such a “probability of bias” does not exist,opposing counsel may reach the opposite conclusion.

This will dramatically expand the length oflitigation, with the first phase of too many cases beingthe case against the judge, the last phase being apetition for certiorari to this Court requesting the dueprocess clause review, with more motions and hearingson the subject found in between.10 Moreover, thepossibility that the entire state court proceeding couldbe set aside, with the case remanded to begin anew inthe trial court, would hang over significantly morestate court proceedings than it current does.

Time and cost may not be the biggest problem.As many courts and commentators have stated, oursystem is based upon the principle that judges willfollow their oaths of office and attempt to preside fairlyover matters that come before them. See, e.g.,Republican Party of Minnesota v. White, 536 U.S. 765,

17

796 (2002) (Kennedy, J., concurring). Under any ofthe new standards, many more attorneys would bequite properly advising clients that their constitutionalrights are at risk if a certain judges hear their case.These multiple new methods of challenging theintegrity of the judiciary will negatively affect thepublic’s perceptions of the legal system.

C. Given the vast differences in state courtjudicial systems, it would beextraordinarily difficult to establish aclear test for ascertaining a due processclause violation.

States “may adopt recusal standards morerigorous than due process requires, and censure judgsewho violate these standards.” White, supra, 536 U.S.at 794 (Kennedy, J., concurring). In addition, statesmay adopt rules that govern how attorneys act, bothinside and outside the courtroom, and they may createalternatives to outright recusal.

One of the primary purposes of legal standardsis to set guidelines for determining how one should act.For example, statutes for recording interests in realproperty provide clear rules so that all participants inreal estate transactions know who owns what interestsin particular parcels of real property. This is the caseeven though the rules related to recording interestsand the precedence of recorded interests differ fromstate to state.

The methods of selecting and retaining judgesare much more diverse than the rules for recordinginterests in real property. Therefore, a Missouriretention election is different from a judicial campaignin which political parties nominate the candidates.

18

Both are different from elections in which the judgesappear on a “non-partisan” section of the ballot.Different substantive legal issues will be consideredimportant in different states. As a result, the methodsof campaigning will be different, and the perceivedproblems will be different.

In addition, media markets are far differentfrom state to state, and it will cost much more to run astatewide campaign in California than in NorthCarolina. In some states, newspaper endorsementsmay carry great weight, while, in others, theendorsement by a particular union might carry theday. From time to time, the endorsement by a specificpolitician might be the key to electoral success.

Given the vast differences in the states and theirjudicial systems, there will be different problems ineach state. As a result, there is no one-size-fits-allsolution that this Court can create for these differentproblems, only vague standards that will determinewhether judges should be recused or not. Increasingthe possibility and number of cases in which judges arerecused will not target specific types of problems thatdifferent states believe exist.

Individual states, however, can target theperceived problems occurring in those states muchmore effectively through specific statutoryrequirements. The States may enact different rules fordetermining which family members, or law firms inwhich a family member is employed, can appear beforea judge. They may enact requirements specific to theirstate’s unique judicial system regarding what amountand type of campaign expenditures and contributionsare acceptable and which require recusal. Moreover,they may create remedies and procedures short of

19

recusal to deal with appearances and potential biasesthat do not justify recusal. A state can always providethat a contribution of more than a fixed amount to thecampaign for a judge will allow the other party todisqualify the judge. That is a bright line rule, and thelegislature or court rule can create it, but the dueprocess clause cannot. Finally, Petitioners and their Amici argue thatthere are recent developments that require this Court’sintervention. Some make eloquent arguments abouthow principles reflected in the due process cases couldbe extended to try to deal with these problems. But, ittakes a great deal of time for the judicial system tocreate a workable body of precedent to deal with thevariety of human conduct that may fall within ageneral rule. State legislatures can decide how to dealwith the specific types of perceived problems affectingjudicial selection and retention far more effectivelythrough enacting new statutes. Similarly, state courtsof last resort can do the same by adopting rules ofconduct for judges or attorneys far more efficientlythan this Court can create case law sufficient to handlethe myriad situations that could arise.

In fact, a very good example of a state actingquickly to enact a clear rule to target a specificperceived problem occurred in West Virginia. After the2004 election, West Virginia amended its election lawto place the same $1,000 limit on contributions to 527organizations that had previously applied tocontributions directly to a candidate’s campaign. W.Va. Code § 3-8-12(g). In other words, “democracy” hasalready been its “own correctiv[e].” White, 536 U.S. at795 (Kennedy, J., concurring).

20

D. While granting the relief requested byPetitioners would provide only limitedguidance for future courts, it wouldcreate an enormous threat to the practiceof electing state court judges.

Under the vague standards offered byPetitioners and their Amici, any past assistance, oropposition, to a judge’s election would come underincreased scrutiny to determine whether it rises to thelevel at which due process requires recusal of thejudge. In addition, the possibility of future reward forthe “right” decision, or punishment for the “wrong”decision, also creates probabilities and appearances ofbias. If anything, concerns about the future seem morelikely to affect future conduct than concerns about thepast.

Therefore, it will be extraordinarily difficult forthese standards to co-exist with state court elections.But, this Court has only recently recognized that:

[I]f . . . it violates the due process for ajudge to sit in a case in which ruling oneway rather than another increases hisprospects for reelection, then-quitesimply-the practice of electing judges isitself a violation of due process. . . . [Thisis not] the views reflected in the DueProcess Clause of the FourteenthAmendment, which has coexisted with

21

the election of judges ever since it wasadopted. . . .

White, supra, 536 U.S. at 783. Moreover, this Court also recognized in White

that it is perfectly reasonable for a state to opt forjudicial elections. “Not only do state-court judgespossess the power to ‘make’ common law, but they havethe immense power to shape the States’ constitutionsas well. . . . Which is precisely why the election of statejudges became popular.” 536 U.S. at 784.

There are perceived benefits and perceiveddetriments to any system of selecting and retainingjudges. Many commentators praise the federalsystems, and some are critical of state court elections.But, there are also competing benefits that result fromthe election of judges, such as increased accountability.In the past, this Court has recognized that the statesare free to select their judges through elections. Itshould not now adopt a rule that will make itextraordinarily difficult for states that select theirjudges through election to manage that system.

Of course, we should not assume that the reliefthat petitioners request will always be limited to theelection of judges. The appointment of federal judges isreally an election, where the nominator is thePresident and the universe of voters is limited to theUnited States Senate. Any rule fashioned in this casewill eventually work its way into the federal system,with unknown results.

RELIEF REQUESTEDThis Court should affirm the judgment below.

22

Respectfully submitted, C. THOMAS LUDDEN Counsel of RecordPHILLIP E. SELTZERLipson, Neilson, Cole,Seltzer & Garin, P.C.3910 Telegraph Rd., Ste. 200Bloomfield Hills, MI 48302(248) 593-5000

App. 1

APPENDIX

List of Amici Curiae

Ronald D. Rotunda, who is the Doy & Dee HenleyChair and Distinguished Professor of Jurisprudence atChapman University School of Law.

Michael R. Dimino, who is a Visiting AssociateProfessor at Florida State University College of Lawand an Associate Professor at the Widener UniversitySchool of Law.