Destroying Our Faith in Our Government

USA TODAY EDITORIAL - March 3, 2009:

Our view on filling court seats:

Mining case shows sooty side of big-money judicial elections
Public confidence suffers when special interests finance court races

You've got to give mining executive Don Blankenship credit for this much: By spending $3 million on venomous ads to unseat a West Virginia Supreme Court justice, Blankenship has inadvertently done what no reform group ever could: He has vividly illustrated how big money corrupts judicial elections. It puts justice up for sale to the highest bidder — or at least raises that suspicion. That's the only reasonable interpretation of the long-running battle — which lands in the U.S. Supreme Court today — between the nation's fourth largest coal mining company, A.T. Massey Coal, where Blankenship is CEO, and Hugh Caperton, the owner of a defunct West Virginia mining company.

In 2002, Caperton won a $50 million verdict against Massey after a jury agreed with Caperton's claim that Massey had fraudulently run him out of business. Massey appealed to the state's Supreme Court, but not before Blankenship used $3 million of his own money for ads to unseat a judge he considered anti-business and replace him with a judge he liked. Once on the bench, the new justice, Brent Benjamin, provided a crucial vote to overturn the $50 million verdict against Massey. Benjamin refused to recuse himself from the case — as Caperton had asked — saying he could be impartial. There oughta be a law, right? But there isn't, either against a judge hearing a case involving someone who bankrolled ads for his election, or against special interests deluging candidates for the bench with millions of dollars to buy friendly justice. Judicial races, once staid, low-budget affairs, have in the past decade turned into mudslinging, multimillion-dollar brawls that have shaken public confidence in justice. All over the nation, Republicans and business interests often vie against Democrats, trial lawyers and labor unions to shop for judges who will vote their way.

West Virginia might be the worst example, but it's certainly not the only one. In 2004 in Illinois, business interests and trial lawyers spent $9 million on a Supreme Court race. The business-backed candidate who won soon cast crucial votes in two high-stakes cases, both times in favor of business interests. Even if the Illinois judge, or Benjamin in West Virginia, voted strictly on the merits, their actions undermined the justice system's credibility. In the West Virginia case, the U.S. Supreme Court could offer some relief. Caperton argues that Benjamin should have removed himself from the case because of Blankenship's huge expenditures. We agree. Any judge who is blind to such an obvious conflict of interest cannot be trusted. Huge donations taint any decision he might make in favor of a contributor. In virtually all cases, however, judges have the last word on whether they will step aside. Regardless of how the Supreme Court rules, a better system is needed.. Beyond that, the underlying problem — special interests buying justice — won't be resolved until special-interest money is banished from judicial selection. About two dozen states do this by using "merit selection" to pick judges for their highest courts. Publicly financed judicial elections, used in North Carolina and New Mexico, are also proving their worth. Every system has drawbacks. But nothing could be worse than putting "for sale" signs on the doors of the nation's courts.

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Federal Judge Michael Mills: "But you destroyed the faith of the people in their government."

Nowlin to serve thirty months in prison
The Oxford Eagle - by Alyssa Schnugg - February 1, 2008

Despite numerous letters from prominent community members and a glowing report of cooperation from the U.S. Attorney’s Office, insurance agent Ken Nowlin was sentenced Thursday to spend 30 months behind bars in a federal prison for conspiracy. Nowlin was charged in June with conspiracy for paying former Lafayette County Supervisor Gary Massey a “commission” during Massey’s term as supervisor. In late July Nowlin pleaded guilty to the charge and had been awaiting his sentencing hearing which was held Thursday afternoon at the Federal Courthouse in Oxford before U.S. District Judge Michael Mills. The Ecru insurance agent told Mills he was sorry for his actions. “I’d like to apologize to you, Judge (Glen H.) Davidson, the court, Lafayette County, my family and colleagues,” Nowlin said before the judge. “I’m sorry I made this terrible mistake ... I know I broke the law ... Somehow I was mislead.” “Who mislead you?” Mills asked. “An elected official, your honor,” Nowlin replied.

U.S. Assistant Attorney Dave Sanders told Mills that Nowlin has fully cooperated with the investigation by supplying documents and testifying before a grand jury against Massey. “Mr. Nowlin has met with us on several occasions and sat down and clarified some things,” Sanders said. “It’s a complicated case and he’s always been cooperative.” According to the Federal Sentencing Guidelines, Nowlin faced up to 30 months in prison. The U.S. Attorney’s Office filed a motion for downward departure in Nowlin’s favor, asking the court to consider a sentence less than the guidelines stipulate since Nowlin was so cooperative. But despite the request and his cooperation, Mills sentenced Nowlin to the maximum sentence of 30 months.

“Up until this offense your record was exemplary,” Mills said to Nowlin. “I’ve received many letters from some impressive people on your behalf ... But you destroyed the faith of the people in their government.” Nowlin was also sentenced to pay $275,942 in restitution back to Lafayette County. Nowlin’s attorney, Tony Farese, told Mills that Nowlin had already paid the full restitution on Tuesday. Mills allowed Nowlin to remain out of custody on bail until March 31 when he will have to report to a prison facility that will be determined at a later date. Massey and Nowlin were originally charged in June for conspiracy, public corruption and money laundering in a 53-count indictment, which alleged Massey accepted payments in excess of $827,000 during his term as supervisor from 1996 -2003, for the Lafayette County Employee Health Care Contract paid through Nowlin, the agent of record at the time.

Massey pleaded guilty in September to one count of conspiracy and two counts of public corruption. He is still awaiting a sentencing date. Sanders announced during Thursday’s hearing that the remaining 52 counts against Nowlin will be dropped by the U.S. Attorney’s Office. Before he became a supervisor in 1995, Massey was the insurance agent of record for Lafayette County. Federal prosecutors claim Massey used his influence to get Nowlin the job as insurance agent of record in exchange for the commission. Prosecutors said Nowlin would receive payment for services in two checks made out to his office from plan administrator Total Plan Services. Nowlin took the checks and told his office to write a separate one to Massey for a “consulting fee.”