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Thursday, February 26, 2009

U.S. Supreme Court Looks at Judicial Conflict of Interest

Supreme Court to tackle judicial conflict of interest
The Los Angeles Times by David G. Savage - February 23, 2009

At issue in a West Virginia case is whether big spending on a judge's election can create an unconstitutional 'appearance of bias.'

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.  - david.savage@latimes.com

7 comments:

manhattan attorney said...

Even the United States Supreme Court is afraid of the mobsters who have taken over the New York State courts.

Anonymous said...

This is all so hopeless. Nothing will happen unless a federal monitor moves in.

Anonymous said...

In Rockland County,Judge Linda Christopher is in charge of keeping Fathers away from their children and covering up the RAMPANT mortgage fraud. She is a twisted woman with very serious mental issues.

retired atty said...

its pay to play baby and its our game, so pay up like it or not.

Anonymous said...

It makes perfect sense for him not to recuse himself. Cheney flew me out to Scottsdale on his private 737 to play 72 holes last winter. He put me up at the Biltmore for a three days, all expenses paid, including an open bar, massages, and chauffeur service. We weren't friends, had nothing in common and I can't golf. (I can drink, however.) He still doesn't know my name, but what the heck? I am sure he splurges on homeless guys like me all the time.
The key word is "appearance" of impartiality. In addition, it is not what the judges think of their own impartiality. The question the judge must answer is, "What does average Joe with reasonable knowledge of the facts perceive?" Judges are so incapable of perceiving (and admitting) how we view them, that we have ended up in this crises in the first place.

Anonymous said...

The absolute and only solutions to this judicial rampage in NY state is the reporting by the.... Investigative Media and the insertion of the Federal Government!

But do not despair...keep writing on this blog about all that you know and absolutely mention names....if true...because this will eventually motivate the above 2 groups I have mnetioned. It also helps to expose those... that forever ... were assured that no one would ever reveal their trash...worldwide, and now so fortunately...they have to face those that view this blog and can intelligently interpret that what is being stated is criminal and attached to them.

Names and truth are vital...so keep up what the media is too weak and judicially bought to perform...and report in black and white. If you are afraid...just get creative and no one will know where you report from and you will definitely save many lives, careers and finances.

You in the know... must report what you have on this blog...help the poor citizens who are suckered and destroyed daily..by the JUSTICE SYSTEM OF NY STATE!

Manhattan Victim said...

A similar situation happened to me in NY State Supreme Court. I could not get the press that this person has been able to get. This same thing is going on all over the country and the lawyers are getting away with it. The system doesn't work, it has melted down with corruption.

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