News: Caperton v. Massey

Up to the minute news: Caperton v. Massey

Recusal ruling reopens Massey suit vs WVa court,” Product Design and Development, June 28, 2009.  “CHARLESTON, W.Va. (AP) — A recent U.S. Supreme Court's ruling against Massey Energy Co. will allow the coal operator to proceed with a federal lawsuit if filed nearly three years ago against West Virginia's Supreme Court.  U.S. District Judge John T. Copenhaver Jr. has ended a court-imposed pause in the case and has asked lawyers from both sides to weigh in this week on how to proceed.  Though Copenhaver set a Monday deadline, Massey petitioned him late last week to extend it to Friday. A lawyer for the state Supreme Court, Jack Tinney, said he did not oppose that request.  Massey wants Copenhaver to declare as unconstitutional the state court's policy governing how judges may recuse themselves from hearing cases. Lawyers for the Richmond, Va.-based company argue that the court's standard violates the right to due process guaranteed by the 14th Amendment.  The Caperton ruling leaves it to the states to set their recusal standards. Noting that West Virginia is among those states that have adopted model language from the American Bar Association, it concluded that Benjamin failed to follow the rule when he declined to step aside.  ‘Objective standards may also require recusal whether or not actual bias exists or can be proved," the ruling written by Justice Anthony Kennedy said, continuing that "the failure to consider objective standards requiring recusal is not consistent with the imperatives of due process….’”

Draft ABA Report Reviews Rules and Processes for Judicial Recusal, Recommends Improvements,” The United States Law Week Case Alert - a National Survey of Current Case Law Focus,  June 16, 2009.  “A preliminary report under review within the ABA surveys the rules and procedures that govern judicial disqualification, identifies problem areas-- including the impact of campaign contributions--and proposes possible solutions. The subject of the report is garnering much attention due to the Supreme Court's decision in Caperton v. A.T. Massey Coal Co.,77 U.S.L.W.4456, (U.S. June 8, 2009).  The report is the product of the Judicial Disqualification Project, which was launched by the ABA Standing Committee on Judicial Independence in 2007…”

Stage Set for Litigation Over Judicial Recusal,” The National Law Journal, June 22, 2009.  “The U.S. Supreme Court's ruling in Caperton v. Massey has prompted the American Bar Association and several states to consider stricter rules to help elected judges decide whether to step down from cases due to conflicts of interest born of campaign contributions. The proposals, if adopted, could prompt lawsuits from campaign contributors who fear that the changes would discourage participation in judicial races in violation of the First Amendment… ‘here are a lot of issues we need to examine here, and we have to always be sensitive to First Amendment issues,’ said William K. Weisenberg, chairman of the American Bar Association standing committee on judicial independence, which is finalizing draft recusal rules in light of Caperton. ‘We all recognize there may very well be future challenges. We expect more court cases to try to define what the Caperton case is about… .’”

Just politicians in judicial robes?” The Charleston Daily Mail, June 17, 2009. “RETIRED U.S. Supreme Court Justice Sandra Day O'Connor lamented in a May speech to the American Bar Association the public's mistrust of judges as 'just politicians in robes' rather than impartial jurists.  Fairly or not, that accurately characterizes the views of a substantial number of West Virginians.  Some West Virginia justices have indeed conducted themselves like politicians - super-legislators in robes - and a divided electorate has funded increasingly expensive campaigns in support of and in opposition to that use of the judiciary.  This ongoing power struggle was highlighted recently when the U.S. Supreme Court ruled 5-4 that the injection of large amounts of money into efforts to shape the state Supreme Court can create not only the appearance of bias but actual bias in justices who benefit from those campaigns - thus violating litigants' due-process rights under the Constitution. …”

A Win For Fairer Courts,” The National Journal, June 15, 2009.  "The Supreme Court's landmark Caperton v. A.T. Massey Coal Co. ruling has prompted sweeping predictions on both sides of the debate over judges and campaign money.  Some see the high court's June 8 ruling as a signal that states should reconsider the system of installing judges through election campaigns, which have become increasingly costly and hard-fought. Thirty-nine states elect at least some judges.  'I hope this decision will spur states to focus on whether our 19th-century method of selecting judges works well in the 21st century,' said Thomas Phillips, the former chief justice of Texas and a partner at Baker Botts, in a recent interview with Legal Times. Phillips co-authored a brief in the Caperton v. Massey case on behalf of the Conference of Chief Justices.  On the flip side, critics of the 5-4 ruling -- including Chief Justice John Roberts, who wrote the dissenting opinion -- predict that it will unleash a wave of litigation and actually undermine the credibility of the courts. Roberts' dissent warns that the ruling creates an ambiguous standard that states will find difficult to enforce…'The ruling is critically important for those of us who have been out there worrying about judicial impartiality and how we can preserve it,' said Charles G. Geyh, a law professor at Indiana University who directs the American Bar Association's Judicial Disqualification Project. The ruling 'sends a message to state supreme courts' to come up with clear and enforceable guidelines for judicial recusal, he added…”

Manchin Setting up Judicial Reform Commission,”  The Charleston Gazette, June 14, 2009.  “Whether last week's ethics ruling by the U.S. Supreme Court influences West Virginia's judicial branch likely will hinge on what emerges from Gov. Joe Manchin's new court study commission.  The 5-4 decision faulting state Chief Justice Brent Benjamin for failing to recuse himself from a case speaks to several of the topics that Manchin has assigned his nine-member Independent Commission on Judicial Reform… The decision also said that states "may choose to adopt recusal standards more rigorous than due process requires," but noted as well that "almost every State -- West Virginia included -- has adopted the American Bar Association's objective standard: 'A judge shall avoid impropriety and the appearance of impropriety.'"  Manchin's executive order, signed in April, enlists both the dean of West Virginia University's law school and the president of its State Bar to serve on the study commission as nonvoting members….”

A Black Mark for Judicial Election,” The Austin American-Statesmen, June 13, 2009.  “There are not many times we thank folks for outrageous acts contrary to the public interest. This is one of those times.  Thank you to West Virginia coal company executive Don Blankenship for giving $3 million to help elect Brent Benjamin as chief justice of that state's Supreme Court. Thanks to Benjamin for siding with the majority when his court threw out a $50-million judgment against Blankenship's company.  But most of all, thanks to Benjamin for not recusing himself from the case when the other side complained that Blankenship's $3 million might have tainted Benjamin's impartiality in the case.  Thanks, because that sparked the U.S. Supreme Court's recent ruling that Benjamin should have recused himself, a decision that trained a bright light on the problems inherent in popular election of judges…Blankenship's generosity came while he knew the $50-million award against his company was headed for the West Virginia court. Seems like a prudent investment. But we don't think judicial races should attract investments. The American Bar Association's Model Code of Judicial Conduct, cited in the U.S. Supreme Court opinion, says "A judge shall avoid impropriety and the appearance of impropriety…’”

Bias on the Bench,” The Toledo Blade, June 12, 2009. “The U.S. Supreme Court acknowledged the obvious this week in a decision from West Virginia with sobering consequences for the 39 states (including Ohio) that elect judges. In a 5-4 ruling, the court found for the first time that judges who take huge sums in campaign contributions from those whose cases come before them should recuse themselves…. It is certainly depressing to note the willingness of the conservative minority to be blind to the appearance of bias in the present while having eyes open only to theoretical problems in the future. The dissenters also ignored the good sense that states could bring to bear on writing their own rules for recusal, perhaps with the help of American Bar Association guidelines. Nothing in this ruling disallows judges from receiving campaign funding, and sensible distinctions are not beyond the power of reason….”

Money, Influence and the Election of Judges” VOA News Radio Broadcast, June 11, 2009. “Elected judges in the United States got a warning this week about money, politics and the law. The Supreme Court ruled that a huge campaign donation can be reason enough not to judge a case involving the donor.  Thirty-nine of the fifty states elect at least some of their judges. Terms can last from two to twelve years. Experts say Japan and Switzerland are the only other countries that hold some kind of judicial elections…. The American Bar Association's Committee on Judicial Independence is working on guidelines for when judges should recuse themselves. Committee chairman William Weisenberg says the lawyers group is for greater use of merit-based selections. This is where a committee nominates candidates to the state governor for appointment.” 

Uncertainty in Law Circles Over New Rules for Judges” The New York Times, June 10, 2009.  "Lawyers across the country said Tuesday that a Supreme Court ruling on conflicts of interest among elected judges could prompt a deluge of requests for judges to recuse themselves from cases. But judges predicted that few situations would involve conflicts serious enough for the new ruling to apply'…’ ‘You’re going to see a much greater analysis put to the campaign contributions that elected judges get,’ said H. Thomas Wells Jr., the president of the American Bar Association.  The court, in a 5-to-4 opinion written by Justice Anthony M. Kennedy, ruled that the Constitution requires judge to disqualify themselves from hearing a case when campaign spending by an interested party had “disproportionate influence” on a case that was ‘pending or imminent….’”

High Court Rules Judges Who Receive 'Substantial' Campaign Donations Must Step Aside; Will Chaos Follow” The Am Law Litigation Daily, June 8, 2009. "The U.S. Supreme Court ruled Monday that state judges who have received substantial campaign contributions from a party in a case must recuse themselves, a landmark decision that we suspect will generate reams of copy in the legal press for years to come. For the early take, we turned to The American Lawyer's Supreme Court correspondent, Tony Mauro, who writes that the 5-to-4 decision in Caperton v. Massey Coal Co. ‘introduces for the first time a constitutional standard into the debate over the influence of big money on judicial elections’… Supporters of the ruling, Mauro writes, expressed hope that the opinion would spur states to rethink judicial elections and move to merit-based selection of judges. American Bar Association president H. Thomas Wells, Jr., announced that the ABA will develop ‘a series of guidelines for courts to assess whether contributions to judges' campaigns implicate the due process rights of parties appearing before them….’"

How the Supreme Court Chooses.” OpEdNews.com, "In the summer of 2009, the U.S. Supreme Court will consider the case of Caperton v. Massey Coal Co. and decide whether a state supreme court justice should recuse himself from a case in which one of the parties contributed heavily to his election campaign.  This case focuses on the disqualification of West Virginia Supreme Court Justice Brent D. Benjamin, who was elected to his seat with the aid of more than $3 million in campaign contributions from the CEO of Massey Energy, the parent company of Massey Coal Co.  Justice Benjamin, who refused to disqualify himself from the case, subsequently cast the pivotal vote in a 3-to-2 majority to dismiss a $50 million verdict against Massey, claiming that his judgment was based solely on the merits…."

O’Connor’s Concern Continues for State Judicial Election System.”  The State Journal, May 14, 2009. "Retired U.S. Supreme Court Justice Sandra Day O'Connor is one of the most outspoken national voices to say West Virginia should change how judges are elected.  O’Connor, honorary chairwoman of the American Bar Association Commission on Fair and Impartial State Courts, said in recent weeks that the 2004 state Supreme Court election tarnished the state’s reputation. The ABA considers itself the national voice of the legal profession.  She spoke in early May at the ABA’s summit in Charlotte, N.C., on fair and impartial court structures. O’Connor has said West Virginia should leave behind partisan judicial elections to avoid the appearance of bias, an argument at the forefront of U.S. Supreme Court case heard March 3…"

O’Connor’s Concern Continues for State Judicial Election System: The former justice said a 2004 state Supreme Court election has tarnished West Virginia’s reputation,” CBS 59 WVNS, "Retired U.S. Supreme Court Justice Sandra Day O'Connor is one of the most outspoken national voices to say West Virginia should change how judges are elected.  She spoke in early May at the ABA’s summit in Charlotte, N.C., on fair and impartial court structures. O’Connor has said West Virginia should leave behind partisan judicial elections to avoid the appearance of bias, an argument at the forefront of U.S. Supreme Court case heard March 3.  Hugh Caperton, et al, v. A.T. Massey, et al, had its beginnings in the 2004 election and also a decade ago in the coalfields…"

Retired Justice O'Connor cites W.Va. ethics case,” The Associated Press, "Count retired U.S. Supreme Court Justice Sandra Day O'Connor among those troubled by West Virginia's 2004 state Supreme Court election.  In recent public speeches, O'Connor has cited the more than $3 million spent by Massey Energy chief executive Don Blankenship to help Brent Benjamin win a seat on the Mountain State's highest court.  In recent public speeches, O'Connor has cited the more than $3 million spent by Massey Energy chief executive Don Blankenship to help Brent Benjamin win a seat on the Mountain State's highest court.  Benjamin later helped reverse a judgment against Massey totaling $82.7 million with interest. The coal company that had won the verdict, Harman Mining, and its president have since appealed to the U.S. Supreme Court, arguing that Benjamin should have recused himself from the case…"

Public Financing of W. Va. Election to be Weighed in Legislature,” LegalNewsline.com, "Jeff Kessler, chair of the West Virginia Senate Judiciary Committee, thinks public financing of Supreme Court elections may help avoid the unwanted attention the Court has received recently. Kessler, an attorney from Moundsville, is one of six sponsors of a bill that would provide an alternative way to elect two justices in 2012. Justices Robin Davis' and Joseph Albright's 12-year terms expire that year….During his 2008 campaign, new Justice Menis Ketchum was a proponent of a public financing system like the one used in North Carolina. 'The current system, almost by definition, creates the appearance of a conflict of interest by having lawyers and other people involved with the court being the chief source of campaign contributions to all the candidates,' Ketchum said. 'If we do not find a way to remove money from the judicial selection process we run the risk of having a judiciary dominated by very wealthy candidates or candidates that have the appearance of being funded by one side or the other.' Benjamin's decision has drawn attention from all directions, including former Supreme Court justices, current state attorneys general, businesses and the American Bar Association. Hoping to unseat Warren McGraw in 2004, Massey CEO Don Blankenship spent more than $3 million in support of Benjamin through an independent expenditure group called 'And For the Sake of the Kids.'"

Supreme Court Hears W. VA. Recusal Case,” Pittsburgh Post-Gazette, "The U.S. Supreme Court yesterday struggled with the issue of whether it should establish a standard for determining what amount of campaign contributions require a judge to step aside from a case involving a contributor…The case took 11 years to reach the nation's highest court. Over that time, former justices, the American Bar Association and other professional organizations, businesses and court reformers have become concerned that the growing sums being spent on judicial elections are undermining the integrity of the court systems."

Justices Struggle with Standard to Determine When Due Process Requires Recusal,” The National Law Journal, “While a number of Supreme Court justices appeared troubled by a West Virginia Supreme Court justice's refusal to recuse himself from a case involving his major campaign contributor, they struggled during arguments on Tuesday with what standard might be used to determine when due process requires recusal because of the appearance of bias...Veteran Supreme Court advocates Theodore Olson, a partner at Gibson, Dunn & Crutcher, and Andrew Frey, a partner at Mayer Brown, faced off in Caperton v. Massey Coal, No. 08-22. Olson faced a very skeptical Justice Antonin Scalia who said, 'We can't run a system on such a vague standard. You give us nothing to hang onto but case-by-case circumstances.' Olson acknowledged, 'This is not easy,' but, he added, 'The Conference of Chief Justices — they are the judges who would have to live with it — they said, 'We need it.'' Justice Samuel A. Alito Jr. noted that Olson had suggested a five-factor test for when campaign contributions create the appearance of bias; the Conference of Chief Justices proposed seven factors; the American Bar Association, four factors, and Public Citizen, 10. He and others put Olson through a series of hypotheticals as to whether recusal was required: when members of a trade association that had contributed to a judge's campaign had cases before the judge or when the United Mine Workers, who made a get-out-the-vote effort on behalf of a judicial candidate, had cases before the judge. Olson argued that not all appearances of bias gave rise to constitutionally required recusal. It depended on all of the circumstances, he said."

Indiana University Professor Comments on Caperton v. Massey,” Indiana University, “Charles Geyh, the John F. Kimberling Professor of Law at the IU Maurer School of Law, said today that the outcome of the case could have a significant impact on the way Americans elect judges and how much confidence they have in their judicial officials. 'In this case, a state supreme court justice received more than $3 million in support for his election campaign from a defendant in a pending case and, after the justice won the election, refused to disqualify himself from hearing the case and cast the decisive vote in favor of the defendant,' Geyh said. 'The issue is whether by deciding this case, the justice deprived the plaintiff of his right to due process of law under the United States Constitution.'...Geyh, whose teaching and scholarship focus on the operation of state and federal courts in relation to the political branches of government and the legal profession, serves as co-reporter to the American Bar Association Joint Commission to Evaluate the Model Code of Judicial Conduct. Geyh is the director of the ABA Judicial Disqualification Project and is the author of When Courts and Congress Collide: The Struggle for Control of America's Judicial System and co-author of Judicial Conduct and Ethics."

Tough Day for Both Sides of Judicial Recusal Case,” LegalNewsline.com, “Justices of a seemingly split U.S. Supreme Court took turns grilling attorneys on both sides of a key judicial recusal case during oral arguments Tuesday morning. The appeal of now-bankrupt Harman Mining Co. seeks to force West Virginia Supreme Court Justice Brent Benjamin to the sidelines of its $50 million case against Massey Energy, whose CEO was a major supporter of Benjamin's 2004 campaign. Chief Justice John Roberts and Justice Antonin Scalia interrogated Harman attorney Ted Olson, the former U.S. Solicitor General, before Justice John Paul Stevens took the lead in quizzing Massey attorney Andrew Frey. Others periodically chimed in, while Justice Clarence Thomas remained silent throughout the hour...The case has drawn attention from all directions, including former Supreme Court justices, current state attorneys general, businesses and the American Bar Association."

One Dollar for Every West Virginian,” Slate.com, “To many legal observers, Caperton v. Massey is the poster child for scrapping judicial elections. The American Bar Association has recommended that states select judges through political appointments rather than popular elections, and many legal experts agree that elections and judging are incompatible. But there are some good reasons to elect state court judges, starting with the fact that state court judges (unlike federal judges) are actually charged with making state law. State courts are "common law courts," meaning that the judges in those courts can shape the rules that govern disputes over contracts, torts, and property, at least when state legislatures have not passed legislation in those areas. As with any other lawmaking body, it makes sense to ensure that the state judiciary is accountable to the people subject to those laws."

More on Benjamin and Blakenship,” The Charleston Gazette, “As tomorrow’s U.S. Supreme Court oral argument on the Brent Benjamin-Don Blankenship connection  approaches, more media stories are coming out about the high-profile case over whether Benjamin should have stepped down from considering a big-money appeal involving Blankenship’s Massey Energy Co."

All About Benjamin - and Blakenship,” The Charleston Gazette, “The Supreme Court has warned against a 'probability of unfairness', but its most definitive ruling only bars judges from cases in which they have a financial stake. Forty-seven states have adopted the American Bar Association’s tougher rule for recusal when 'impartiality might reasonably be questioned'. But most judges are responsible for recusing themselves.Readers who want to learn more about the legal arguments in the case can find all of the briefs filed by both sides — and lots of interested parties — online here. That Web site, sponsored by the American Bar Association, describes the issued presented to the Court this way:

 

'Justice Brent Benjamin of the Supreme Court of Appeals of West Virginia refused to recuse himself from the appeal of the $50 million jury verdict in this case, even though the CEO of the lead defendant spent $3 million supporting his campaign for a seat on the court–more than 60% of the total amount spent to support Justice Benjamin’s campaign– while preparing to appeal the verdict against his company. After winning election to the court, Justice Benjamin cast the deciding vote in the court’s 3-2 decision overturning that verdict. The question presented is whether Justice Benjamin’s failure to recuse himself from participation in his principal financial supporter’s case violated the Due Process Clause of the Fourteenth Amendment.'"

 

Top Court to Hear West Virginia Bias Case Tuesday,” The Pittsburgh Post-Gazette, “The one-hour hearing will determine the outcome of more than 10 years of litigation between bankrupted West Virginia mining company owner Hugh Caperton and Massey Energy, the nation's fourth-largest coal producer. Mr. Caperton wants the court to overturn a 3-2 ruling by West Virginia's Supreme Court last year. The decision threw out a 2002 lower court verdict ordering Massey to pay Mr. Caperton $50 million in damages. The swing vote came from West Virginia Supreme Court Chief Justice Brent Benjamin. Mr. Caperton argues the justice should have not heard the case because he was elected with the help of more than $3 million in campaign spending by Massey Chief Executive Officer Don Blankenship. At a time when the American Bar Association, current and former judges -- including former U.S. Supreme Court Justice Sandra Day O'Connor -- and other court officials are worried that increasingly generous spending in judicial elections is undermining the integrity of the court system, the case could provide a new standard for when judges who receive contributions must step aside."

The Trouble with Electing Judges,” The Economist, “The Supreme Court has warned against a 'probability of unfairness', but its most definitive ruling only bars judges from cases in which they have a financial stake. Forty-seven states have adopted the American Bar Association’s tougher rule for recusal when 'impartiality might reasonably be questioned'. But most judges are responsible for recusing themselves."

Can Money Obstruct Justice,” USA Today, “The noble promise engraved above the entrance to the Supreme Court is 'Equal Justice Under Law.' It is not: 'Justice Goes to the Highest Bidder.' Restoring confidence in the courts is at the center of a crucial case that will be argued before the U.S. Supreme Court on Tuesday. Judicial reformers are asking the high court to declare that at some point, campaign donations can be so high that they result in a 'probability of bias,' requiring that judges recuse in cases involving the donors...That might not sound like much to ask, but it's a significant start. Most states already require judges to recuse when the judge's impartiality 'might reasonably be questioned,' wording developed by the American Bar Association. But the decision to recuse is usually left up to the judges, and some judges argue that because the donations go to their campaigns, not directly into their pockets, there's no problem. Litigants don't often ask a judge to step aside, fearing they'll anger the judge and invite retaliation if he or she says no."

Cautionary Tale on Judicial Race,” The Scranton Times Tribune, “Large fields of candidates are lining up for six statewide appellate court seats this year...One of the key tasks for those candidates, especially those seeking open seats, will be financing campaigns that commonly cost more than $1 million each. History indicates that most of that money will come from lawyers or parties with interests in litigation that could come before the courts in question. In order for courts to be effective, citizens must believe that judges truly are independent. Funding appellate campaigns through private contributions, from parties with inherent interests in litigation, works against establishing and sustaining confidence...A harrowing case from West Virginia illustrates the danger in allowing appellate judges to rise to high judicial office through private financing. The Supreme Court case centers on the question of whether Justice Benjamin should have recused himself from the Massey appeal. Scores of parties from across the political spectrum, from major corporations to environmental groups, from the American Bar Association to ethics professors, weighed in with friend of the court briefs that urged the U.S. Supreme Court to take the case."

Third Party Won't Argue Before U.S. SC in Caperton Case,” Legal Newsline, “The State of Alabama may not participate in the oral arguments of a key judicial recusal case scheduled to be heard in March by the U.S. Supreme Court. The Court rejected Alabama's request Friday while granting the Louisiana Supreme Court time to file an amicus brief. Alabama Attorney General Troy King had authored an amicus brief of his own in support of West Virginia Chief Justice Brent Benjamin's decision not to recuse himself in the case of a campaign supporter. King was opposed to a federal ruling affecting the way states govern recusal issues. 'From amici's perspective, therefore, the question is not whether, in some abstract sense, Justice Benjamin 'should' have disqualified himself,' King wrote. 'The question, rather, is whether the Court should fashion an entirely new body of federal constitutional law to govern day-to-day recusal practice in state courts - and, in the process, birth an entirely new species of litigation pleading, the Caperton motion. 'The answer on both counts is no.'...The case has drawn attention from all directions, including former Supreme Court justices, current state attorneys general, businesses and the American Bar Association."

At the Supreme Court, a Case with the Feel of a Best Seller,” USA Today, “In a small town, a local resident claims wrongdoing by a big corporation and wins a multimillion-dollar award after a jury trial. The corporation's CEO then pumps enough campaign money into a judicial election to get a new judge on the state supreme court. During an appeal, that judge casts a critical vote siding with the corporation — and reversing the resident's victory. Sound like the plot of a John Grisham novel? It is — his 2008 best seller, The Appeal. But it also resembles a real dispute between West Virginia coal mining rivals that now is before the U.S. Supreme Court. The decade-long dispute, a reflection of the growing questions surrounding judicial elections, tests whether an elected judge's refusal to take himself off a case involving a chief financial backer is unconstitutional...The American Bar Association seeks to change the [current] system. 'Few actions jeopardize public trust in the judicial process more than a judge's failure to recuse in a case brought by or against a substantial contributor to the judge's campaign,' the group says."

Louisiana Justices to U.S. Supreme Court: Don't Believe Everything You Read,” Legal Newsline, “The Louisiana Supreme Court wants to make sure its name isn't dragged through the mud during a key judicial recusal case before the U.S. Supreme Court. Louisiana's highest court has asked for leave to file an amicus brief in the Caperton case, which originated in West Virginia and will be heard next month, to defend itself against the usage of a 2008 Tulane Law Review article that linked judicial contributions to judicial voting on the Court. An earlier brief cited the article, which has been refuted. The dean of Tulane Law School even issued an apology to the Louisiana Supreme Court and its justices after the article was published... The case has drawn attention from all directions, including former Supreme Court justices, current state attorneys general, businesses and the American Bar Association.”

Editorial: Ethics,” The Charleston Gazette, "On March 3, the U.S. Supreme Court will hear oral arguments on whether West Virginia Supreme Court Justice Brent Benjamin breached ethics when he voted to erase an $80 million judgment against Massey Energy, after he was put on the bench by $3 million from Massey's CEO. This important case is being watched by millions of Americans, and may set a new impartiality standard for U.S. courts. Charleston's Republican Mayor Danny Jones wrote that Republican Benjamin is a 'model judge ... fair, honest and intelligent.' Jones implied that Benjamin did nothing wrong in saving Massey $80 million after Massey's chief helped put him on the high court. But few other U.S. voices agree. For example, the current issue of the American Bar Association's magazine contains a report titled 'The battle over an Appalachian mine exposes a nasty vein in bench politics." It says "few judicial races involve fundraising with the intensity found in West Virginia.' The ABA filed a U.S. Supreme Court brief saying: 'The magnitude and timing of the campaign contributions here gave Justice Benjamin, in appearance if not in fact, a personal interest in the outcome of this case .... If the facts of this case do not implicate due process concerns, then few judicial contribution cases ever will.'"

High Court Tackles Campaign Financing,” National Public Radio (transcript of coverage from Weekend Edition), “Lynn Neary, host: The U.S. Supreme Court is stepping into the tricky question of judicial ethics in state courts. For years, the court has refused to be drawn into the controversy over whether campaign contributions to judicial candidates create a conflict of interest. But yesterday, amid growing concern over the role of money in state court elections, the justices agreed to review a case testing whether elected judges can participate in cases involving large campaign contributors. NPR legal affairs correspondent Nina Totenberg reports. Nina Totenberg: Thirty-nine states choose either all or some of their judges by election. But unlike federal judges, who must disqualify themselves from any case in which they have even an iota of personal or financial interest, the states have no criteria for disqualifying judges, and in most places, the judges decide on their own whether to recuse themselves. The case the high court has agreed to hear comes from West Virginia, where a state Supreme Court justice named Brent Benjamin won his seat with the help of the CEO of the Massey Coal Company. … This year, state Supreme Court election campaigns alone spent $32 million. And that does not even count the hundreds, perhaps thousands of other state judicial elections. What's more, no state has established criteria to tell judges when they should recuse themselves. The American Bar Association has proposed a model code that would require recusal from any case in which a lawyer or a litigant contributed more than a set amount to a judge. Even though the code leaves blank the amount, to be filled in by each state, no state has yet adopted it.”

Supreme Court Takes Up Judicial Ethics Case,” Blog of Legal Times, “The Supreme Court today agreed to take up a West Virginia case that could trigger the Court's first major review of the impact of increasingly costly judicial elections on the appearance and reality of justice at the state level. After several weeks of unexplained delay in acting on the case, the Court announced it was granting review in Caperton v. Massey, which asks when a campaign donation by a party in a case is large enough that the judge receiving the donation must recuse to avoid violating due process rights. We previewed the case in August. The American Bar Association and other civic and business groups filed briefs at the petition stage -- a rarity -- to underline the urgency and importance of the issue in light of increasingly political, money-drenched state judicial elections.”

U.S. Supreme Court to Rule on Judicial Recusal Issue from W.Va.” Legal Newsline, “The U.S. Supreme Court will decide if West Virginia Supreme Court Justice Brent Benjamin should have recused himself from the $50 million case of a heavy campaign supporter. The court will hear arguments in February or March. The owner of a bankrupt coal company, Hugh Caperton, says Benjamin should have disqualified himself when Massey Energy's appeal of a $50 million verdict in favor of Caperton's company proved successful. … While Benjamin is viewed as a pro-business influence on the Court, he voted against hearing Massey's appeal of a $220 million verdict against it. The Harman case drew amicus briefs from Public Citizen, the Brennan Center for Justice at New York University School of Law, the Washington Appellate Lawyers Association, the American Bar Association and the Committee for Economic Development. All those briefs were in favor of review.”

U.S. Supreme Court to Hear Case Regarding W.Va. Supreme Court,” Charleston Gazette (WV), “The U.S. Supreme Court decided Friday to hear an appeal of whether West Virginia Supreme Court Justice Brent Benjamin should have stepped aside in a case involving Massey Energy, after Massey's chief executive spent millions of dollars to unseat Benjamin's opponent in the 2004 election. Benjamin twice voted in the majority in 3-2 decisions to overturn a $50 million verdict originally awarded to Harman Mining Corp. in 2002 against A.T. Massey Coal, subsequently renamed Massey Energy Co. Harman and its owner, Hugh Caperton, contended that Massey commandeered a coal supply agreement and forced the smaller company into bankruptcy. In August, five groups, including the American Bar Association, filed ‘friend of the court’ briefs urging the U.S. Supreme Court to accept the case. ‘[A]n appearance of impropriety may be created where, as in the present case, a judicial officer denies a recusal motion and continues to sit on a case where one of the parties has made significant contributions to the judge's election campaign,’ states the amicus brief filed by the American Bar Association.”

Advertisement