The decision by the United States Supreme Court in the Caperton et al. v. A.T. Massey Coal Co., Inc, et al, sets the outside boundaries regarding judicial recusal in certain cases involving campaign contributions.  The decision creates “a serious risk of actual bias” standard for determining appropriate judicial recusal. 

The Supreme Court previously had established objective standards that require recusal when the probability of actual bias on the part of the judge or decision maker is too high to be constitutionally tolerable.  Applying those precedents, the Court found in all the circumstances of the Caperton case, due process requires recusal.  It is important to stress the words “in all the circumstances of this case.”

The recusal standard in Caperton is limited and centers on the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.  Using this standard, the Court concluded that there is a serious risk of actual bias—based on objective and reasonable perceptions—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.

This is a very specific ruling based on particular facts in what the court calls an “extreme” case.  This decision cannot be taken to call for automatic recusal in all situations involving campaign contributions to judges.  The Court said that not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge’s recusal, but this is an exceptional case.  Our reading of the decision is that it sets the outside boundaries regarding judicial recusal. 

By no means does the Caperton decision resolve troubling issues regarding money raised and spent in judicial campaigns, but it is a strong statement wherein obvious harm to the administration of justice is recognized. The Ohio State Bar Association and others believe that standards for judicial recusal need to be further delineated.  Ohio has seen tremendous sums of money poured into judicial races, especially Supreme Court of Ohio races, creating at least the perception of undue influence in judicial decisions.  That perception, and of course any corresponding reality, are intolerable.  In presenting the majority opinion in Caperton, Justice Kennedy wrote that “States may choose to adopt recusal standards more rigorous than due process requires.  The Due Process Clause demarks only the outer boundaries of judicial disqualifications. Congress and the states, of course, remain free to impose more rigorous standards for judicial disqualification than those we find mandated here today.”  That is where the work remains. 

We applaud the decision in the Caperton case as it will serve as a foundation for further defining guidelines for when it is appropriate for judges to step aside as certain cases come before them in which they may have an unfair interest or bias. 

-30-

The Ohio State Bar Association, founded in 1880, is a voluntary association representing approximately 25,000 members of the bench and bar of Ohio as well as nearly 4,000 legal assistants and law students. Through its activities and the activities of its related organizations, the OSBA serves both its members and the public by promoting the highest standards in the practice of law and the administration of justice.