The Los Angeles Times by David G. Savage - February 23, 2009
Reporting from Washington — Hugh Caperton, owner of a small coal mine from Slab Fork, W.Va., was driven into bankruptcy after he ran up against the huge A.T. Massey Coal Co., but got a measure of revenge when a jury awarded him $50 million in damages. But when Massey appealed to the West Virginia Supreme Court, Caperton thought it might mean trouble. Massey Chief Executive Don Blankenship had spent $3 million of his own money to help elect a new justice. "The deck was stacked against us," Caperton said. In November 2007, Chief Justice Brent Benjamin cast the deciding vote in a 3-2 ruling that overturned the verdict against Massey. This saga of money, power and judicial politics in West Virginia has prompted the U.S. Supreme Court to consider for the first time whether big spending on a judge's election can create an unconstitutional "appearance of bias" that violates the guarantee of due process of law in the Constitution.
The case has attracted intense interest from judges, lawyers groups and legal ethicists, most of whom decry the trend toward campaign-style races for judgeships. In 38 states including California, some judges are elected. Twenty states besides West Virginia elect the justices of their supreme courts. Most are in the Great Lakes region or the Deep South. The amount of money flowing into these races has more than doubled in the last decade, and most of it comes from businesses or trial lawyers. It has created the perception that justice can be bought or at least rented when needed, critics say. The question raised by the West Virginia case comes close to home for the nine justices of the U.S. Supreme Court, some of whom have had their own recusal controversies. When must a judge step aside because there is a good reason to doubt he or she is impartial? Massey's lawyers say the case is not as simple as it has been portrayed: Blankenship gave only a small contribution directly to Benjamin's campaign. And Benjamin has voted against Massey in other, more recent cases, they said.
If the standard that judges should step aside based on an appearance of bias or because they owe a "debt of gratitude" to someone were to be adopted, Massey's lawyers said, U.S. Supreme Court justices could be asked to bow out of cases involving presidents who nominated them. But Stephen Gillers, a legal ethics expert at New York University, said the justices should focus on the facts of the case. "Ask yourself a simple question: If your opponent contributed a lopsided amount to the judge -- say $3 million -- and you contributed nothing, would you think there is a risk of bias?" he said. "With these numbers, the answer has to be yes." Twelve years ago, Caperton owned a mine that sold a high-quality coal for the steel industry. Massey wanted the same business and bought the processing firm that handled Caperton's coal. It also bought the land around his mine. For a time, Blankenship expressed interest in buying Caperton's company but backed away from a deal.
Benjamin was a little-known Republican lawyer in Charleston, the state capital, when he sought to unseat Justice Warren McGraw in 2004. Blankenship gave $1,000 directly to Benjamin's campaign, but spent nearly $3 million on ads that attacked McGraw as "radical" and "soft on crime." Benjamin won a narrow victory, becoming the first Republican since World War II to be elected to West Virginia's high court. When Massey's appeal came before the court, Benjamin refused to step aside, saying later that no one could show he had "any actual bias or prejudice." The West Virginia justices operate under the same code as the U.S. Supreme Court justices. They step aside automatically if they own stock in a company whose case is before the court. The code also says they must disqualify themselves if their "impartiality might reasonably be questioned." If questioned, though, they decide for themselves whether their impartiality might reasonably be in doubt.
In 2004, for example, U.S. Supreme Court Justice Antonin Scalia refused to step aside from a case in which environmentalists were suing Vice President Dick Cheney. They wanted to know whether energy industry lobbyists had met behind closed doors with Cheney's energy policy task force. A lower court ruled for the environmentalists. Three weeks after the Supreme Court voted to hear the vice president's appeal, Scalia flew to Louisiana on Cheney's government jet to go duck hunting. When the Sierra Club asked the justice to step aside from deciding the Cheney case, the Supreme Court made clear the decision was Scalia's alone. "I do not believe my impartiality can reasonably be questioned," he wrote in refusing to withdraw. He noted Cheney was sued in his "official capacity" as vice president. He was not personally liable. Moreover, he said, they did not spend much time together on the trip. "I never hunted with him in the same blind," he wrote.
In the Massey case, Benjamin said he had no personal relationship with Blankenship. The majority ruled that Caperton's lawsuit should have been decided in western Virginia, where the coal processing firm was located, rather than in West Virginia. Caperton and his lawyers petitioned the Supreme Court to review the case. They won the support of the Brennan Center for Justice at New York University and other reform groups that have tracked the rising tide of spending in judicial races. "It is dialing for dollars from people who have cases before the court," said Bert Brandenburg, executive director of Justice At Stake Campaign, a public interest group which sees judicial elections as a threat to impartial justice. "Why else would you give a lot of money to a judicial candidate?" On March 3, the U.S. Supreme Court will hear arguments in Caperton vs. Massey and is expected to hand down a decision by late June. - email@example.com