Within the Scope

Blogging on Administrative Law and the Public Sector

Friday, June 26, 2009

Does Caperton Invite More or Less Danger for Judges in Retention Elections?

In the run-up to their fundraising benefit scheduled for next week, supporters of retention elections for state court judges here in Minnesota have hailed the recent U.S. Supreme Court decision in Caperton v. A.T. Massey Coal Company Co.

As readers of these pages are aware, earlier this month a divided U.S. Supreme Court held that some independent expenditures in judicial campaigns are so large and influential that the candidate-judges who benefit from these expenditures are obliged by the Due Process Clause to later recuse themselves from cases involving the donors who had “significant and disproportionate” influence.

One presumes that the supporters of retention elections in Minnesota’s regard the decision in Caperton as affirming their view that independent expenditures can have a distorting influence on the administration of justice – indeed an impact that is of constitutional significance.

This may be true, but it occurred to me that the Caperton case also includes the seeds of future difficulty for supporters of retention elections.

As the four dissenting Justices in Caperton point out, calibrating when a donor’s influence becomes “significant and disproportionate” such that when “coupled with the temporal relationship between the election and the pending case offer a possible temptation to the average judge,” is neither a simple nor straight-forward task. Reasonable people will disagree as to when that line is crossed, and, the dissenters argue, this uncertainty will result in a proliferation of claims that candidate-judges who benefitted from independent expenditures during a campaign must later recuse themselves.

Moreover, it occurred to me that the “significant and disproportionate” voices in retention election campaigns will most often be those undertaking independent expenditures – there being no candidate-challengers with that form of election. In a smaller, compressed field, the outside voices may, in fact, seem louder and more influential. And if that is true, aren’t judges who seek retention in office more vulnerable to later claims that they are “in the pocket” of those who spoke widely on their behalf? Likewise, isn’t the danger heightened when there is no other judicial candidate with whom one could compare one’s campaign? For these reasons, I think that the holding in Caperton represents more of a mixed blessing than a boon to supporters of retention elections here at home.

The High Court’s complete analysis, and the critiques of the dissenting Justices, is accessible here.