Codifying Caperton v. A.T. Massey Coal Co.

Abstract:     
Before Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252, 2266 (2009). due process mandated judicial disqualification in two basic situations: first, when the judge had a direct, personal, and substantial pecuniary interest in the case, or second, when the judge acted as judge, jury, prosecutor, and complaining witness, and there was no need for an instant response. Caperton adds a third category. Due process requires a judge to disqualify himself if a person who is not a party (but is a principal officer of a party) has made substantial independent expenditures to support the successful judicial candidate or to oppose the unsuccessful judicial candidate, thus helping the successful candidate. The Supreme Court’s majority opinion often refers to these independent expenditures as “contributions,” but admits that the multimillionaire who spent the money did not contribute any of it to the judge’s election campaign. (Blankenship, the officer of A.T. Massey, who owned only 0.35% of Massey’s stock, did not contribute more than the statutory maximum of $1,000 to Justice Benjamin’s campaign) The American Bar Association has tried to codify this ruling, but its attempts have been, and will continue to be, unsuccessful, because the Court’s opinion settles on not test but simply lists a series of events.

Keywords: due process, judicial disqualification, recusal, campaign financing, campaign expenditures, campaign contributions

JEL Classification: K19, K10, K40, K41, K42

Accepted Paper Series