On Monday, June 8, 2009, the U.S. Supreme Court ruled that outsized campaign contributions to an elected judge can create an appearance of impropriety so great as to violate the federal Due Process Clause. A Davis Polk team wrote and filed an amicus curiae brief with the Court urging precisely this result, on behalf of clients that include the Committee for Economic Development, Intel, Lockheed Martin, PepsiCo and Wal-Mart.

The case, captioned Caperton v. Massey, arose out of tort litigation between two West Virginia energy companies, Massey Energy and Harman Mining. After a jury trial in which Harman won $50 million in damages, Massey appealed to the West Virginia Supreme Court. During the time Massey was preparing its appeal, Massey's CEO provided extraordinary financial backing to the campaign of a candidate seeking to unseat an incumbent justice. The candidate supported by Massey won the election and, after rejecting several motions for his recusal, cast the deciding vote in favor of overturning the $50 million verdict against Massey.

In its ruling on Monday, the U.S. Supreme Court reversed and remanded the case to the West Virginia Supreme Court. It held that, under the extreme circumstances of this case, the justice who had received the contributions from Massey should have recused himself from the appeal.

Having urged the Court to accept the case at the certiorari stage, Davis Polk argued in its brief that a decision requiring recusal in circumstances like these will preserve public confidence in the judiciary and promote economic stability.

The Davis Polk team included partners Daniel F. Kolb and Edmund Polubinski III, counsel David B. Toscano and associates Sarah McDonald Egan and Jason M. Spitalnick. All lawyers are based in the New York office.