Impartial Decision Maker

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No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Just as in criminal and quasi-criminal cases,1 an impartial decisionmaker is an essential right in civil proceedings as well.2 “The neutrality requirement helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law. . . . At the same time, it preserves both the appearance and reality of fairness . . . by ensuring that no person will be deprived of his interests in the absence of a proceeding in which he may present his case with assurance that the arbiter is not predisposed to find against him.” 3 Thus, a showing of bias or of strong implications of bias was deemed made where a state optometry board, made up of only private practitioners, was proceeding against other licensed optometrists for unprofessional conduct because they were employed by corporations. Since success in the board’s effort would redound to the personal benefit of private practitioners, the Court thought the interest of the board members to be sufficient to disqualify them.4

There is, however, a “presumption of honesty and integrity in those serving as adjudicators,” 5 so that the burden is on the objecting party to show a conflict of interest or some other specific reason for disqualification of a specific officer or for disapproval of the system. Thus, combining functions within an agency, such as by allowing members of a State Medical Examining Board to both investigate and adjudicate a physician’s suspension, may raise substantial concerns, but does not by itself establish a violation of due process.6 The Court has also held that the official or personal stake that school board members had in a decision to fire teachers who had engaged in a strike against the school system in violation of state law was not such so as to disqualify them.7 Sometimes, to ensure an impartial tribunal, the Due Process Clause requires a judge to recuse himself from a case. In Caperton v. A. T. Massey Coal Co., the Court noted that “most matters relating to judicial disqualification [do] not rise to a constitutional level,” and that “matters of kinship, personal bias, state policy, [and] remoteness of interest, would seem generally to be matters merely of legislative discretion.” 8 The Court added, however, that “[t]he early and leading case on the subject” had “concluded that the Due Process Clause incorporated the common-law rule that a judge must recuse himself when he has ‘a direct, personal, substantial, pecuniary interest’ in a case.” 9 In addition, although “[p]ersonal bias or prejudice ‘alone would not be sufficient basis for imposing a constitutional requirement under the Due Process Clause,’” there “are circumstances ‘in which experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.’” 10 These circumstances include “where a judge had a financial interest in the outcome of a case” or “a conflict arising from his participation in an earlier proceeding.” 11 In such cases, “[t]he inquiry is an objective one. The Court asks not whether the judge is actually, subjectively biased, but whether the average judge in his position is ‘likely’ to be neutral, or whether there is an unconstitutional ‘potential for bias.’” 12 In Caperton, a company appealed a jury verdict of $50 million, and its chairman spent $3 million to elect a justice to the Supreme Court of Appeals of West Virginia at a time when “[i]t was reasonably foreseeable . . . that the pending case would be before the newly elected justice.” 13 This $3 million was more than the total amount spent by all other supporters of the justice and three times the amount spent by the justice’s own committee. The justice was elected, declined to recuse himself, and joined a 3-to-2 decision overturning the jury verdict. The Supreme Court, in a 5-to-4 opinion written by Justice Kennedy, “conclude[d] 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.” 14

Subsequently, in Williams v. Pennsylvania, the Court found that the right of due process was violated when a judge on the Pennsylvania Supreme Court—who participated in case denying post-conviction relief to a prisoner convicted of first-degree murder and sentenced to death—had, in his former role as a district attorney, given approval to seek the death penalty in the prisoner’s case.15 Relying on Caperton, which the Court viewed as having set forth an “objective standard” that requires recusal when the likelihood of bias on the part of the judge is “too high to be constitutionally tolerable,” 16 the Williams Court specifically held that there is an impermissible risk of actual bias when a judge had previously had a “significant, personal involvement as a prosecutor in a critical decision regarding the defendant’s case.” 17 The Court based its holding, in part, on earlier cases which had found impermissible bias occurs when the same person serves as both “accuser” and “adjudicator” in a case, which the Court viewed as having happened in Williams.18 It also reasoned that authorizing another person to seek the death penalty represents “significant personal involvement” in a case,19 and took the view that the involvement of multiple actors in a case over many years “only heightens” —rather than mitigates—the “need for objective rules preventing the operation of bias that otherwise might be obscured.” 20 As a remedy, the case was remanded for reevaluation by the reconstituted Pennsylvania Supreme Court, notwithstanding the fact that the judge in question did not cast the deciding vote, as the Williams Court viewed the judge’s participation in the multi-member panel’s deliberations as sufficient to taint the public legitimacy of the underlying proceedings and constitute reversible error.21

1: Tumey v. Ohio, 273 U.S. 510 (1927); In re Murchison, 349 U.S. 133 (1955).
2: Goldberg v. Kelly, 397 U.S. 254, 271 (1970).
3: Marshall v. Jerrico, 446 U.S. 238, 242 (1980); Schweiker v. McClure, 456 U.S. 188, 195 (1982).
4: Gibson v. Berryhill, 411 U.S. 564 (1973). Or, the conduct of deportation hearings by a person who, while he had not investigated the case heard, was also an investigator who must judge the results of others’ investigations just as one of them would some day judge his, raised a substantial problem which was resolved through statutory construction). Wong Yang Sung v. McGrath, 339 U.S. 33 (1950).
5: Schweiker v. McClure, 456 U.S. 188, 195 (1982); Withrow v. Larkin, 421 U.S. 35, 47 (1975); United States v. Morgan, 313 U.S. 409, 421 (1941).
6: Withrow v. Larkin, 421 U.S. 35 (1975). Where an administrative officer is acting in a prosecutorial, rather than judicial or quasi-judicial role, an even lesser standard of impartiality applies. Marshall v. Jerrico, 446 U.S. 238, 248–50 (1980) (regional administrator assessing fines for child labor violations, with penalties going into fund to reimburse cost of system of enforcing child labor laws). But “traditions of prosecutorial discretion do not immunize from judicial scrutiny cases in which enforcement decisions of an administrator were motivated by improper factors or were otherwise contrary to law.” Id. at 249.
7: Hortonville Joint School Dist. v. Hortonville Educ. Ass’n, 426 U.S. 482 (1976). Compare Arnett v. Kennedy, 416 U.S. 134, 170 n.5 (1974) (Justice Powell), with id. at 196–99 (Justice White), and 216 (Justice Marshall).
8: 556 U.S. 868, 876 (2009) (citations omitted).
9: 556 U.S. 868, 876 (2009), quoting Tumey v. Ohio, 273 U.S. 510, 523 (1927).
10: 556 U.S. 868, 876 (2009) (citations omitted).
11: 556 U.S. 868, 877, 880 (2009).
12: 556 U.S. 868, 881 (2009)(citations omitted).
13: 556 U.S. 868, 886 (2009).
14: 556 U.S. 868, 884 (2009). Chief Justice Roberts, joined by Justices Scalia, Thomas, and Alito, dissented, asserting that “a ‘probability of bias’ cannot be defined in any limited way,” “provides no guidance to judges and litigants about when recusal will be constitutionally required,” and “will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be.” 556 U.S. at 891 (Roberts, C.J., dissenting). The majority countered that “[t]he facts now before us are extreme in any measure.” 556 U.S. at 887.
15: 136 S. Ct. 1899, 1903 (2016).
16: Id. (internal quotations omitted).
17: Id. at 1905.
18: Id. at 1905 (citing In re Murchison, 349 U.S. 133, 136–37 (1955)). The Court also noted that “[n]o attorney is more integral to the accusatory process than a prosecutor who participates in a major adversary decision.” Id. at 1906.
19: Id. at 1907. See also id. at 1907–08 (noting that the judge in this case had highlighted the number of capital cases in which he participated when campaigning for judicial office).
20: Id. at 1907.
21: Id. at 1909–10. Likewise, the Court rejected the argument that remanding the case would not cure the underlying due process violation because the disqualified judge’s views might still influence his former colleagues, as an “inability to guarantee complete relief for a constitutional violation . . . does not justify withholding a remedy altogether.” Id. at 1910.