U.S. Supreme Court says West Virginia justice should have recused

Justin Anderson and Ann Knef Jun. 9, 2009, 7:00am




WASHINGTON -- The U.S. Supreme Court in a 5-4 decision said West Virginia Supreme Court Chief Justice Brent Benjamin should have stepped aside in a case involving Massey Energy.

"Under our precedents there are objective standards that require recusal when 'the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable,'" Justice Anthony Kennedy wrote for the majority on Monday. "Applying those precedents, we find that, in all the circumstances of this case, due process requires recusal."

Hugh Caperton, operator of Harman Mining Company, had sought Benjamin's recusal from hearing a case involving Massey's appeal of a $50 million verdict against it for fraudulently harming Harman's business.

The state Supreme Court twice overturned the verdict in Massey's favor. Benjamin refused on both occasions, even though Massey chief Don Blankenship spent about $3 million on a campaign aimed at unseating Benjamin's Democratic opponent in the 2004 election, former Justice Warren McGraw.

Caperton contended that Benjamin was biased toward Massey because of Blankenship's campaign expenditures targeting McGraw.

The ruling left some legal observers questioning how it will impact cases in which plaintiff attorneys have made significant campaign donations to the presiding judge.

"The political contribution in Caperton certainly was unseemly," wrote James Copland of PointofLaw. "And it was on the outer bound of what we typically see in contested judicial elections. But I question whether it was as 'extraordinary' as Justice Kennedy and the justices in the majority seemed to think.

"Such oversized contributions from plaintiffs' lawyers in judicial campaigns are the norm, rather than the exception."

Copland and others were reminded of the costly Illinois Supreme Court race of 2004, which set a national record of more than $9 million in contributions. Republican Lloyd Karmeier, whose campaign was funded by a variety of business interests, defeated Democrat Gordon Maag, whose contributions came largely from trial lawyers. Each side raised more than $4 million.

Copland pointed out that asbestos firm SimmonsCooper of East Alton "poured" more than $1 million into Maag's campaign.

"Had Maag been elected, would he have had to recuse himself in all cases involving SimmonsCooper?" Copland wrote. "If not, why not?"

Ed Murnane, president of the Illinois Civil Justice League, is a staunch advocate of non-partisan judicial elections. In a commentary, Murnane wrote such elections are "a better way than recusal to prevent the appearance of impartiality."

He also wrote that the "Karmeier-Maag election, and the battle over Illinois court cases after that election, will be dragged out by the Illinois news media (and by the trial lawyers) in the aftermath of the Caperton v. Massey decision."

"The Caperton v. Massey decision (a 5-4 ruling) will focus new light on similar cases in which contributors to a judicial campaign may be involved in a future case before the Court. Should judges be forced to recuse themselves if their campaign received contributions from a party to litigation before the court?"

In the West Virginia Caperton case, former Justice Spike Maynard did recuse himself from re-hearing it after photos surfaced in early 2008 showing himself and Blankenship together while vacationing on the French Riviera. Former Justice Larry Starcher also recused himself from the re-hearing based on his previous public comments critical of Blankenship.

Starcher had urged Benjamin to step down, too, saying that Blankenship had created a "cancer in the affairs of this court."

U.S. justices Kennedy, Stephen Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens concluded that Blankenship's campaign expenditures were indeed "significant and disproportionate" to other efforts in the 2004 Supreme Court election.

Kennedy in the opinion noted that Blankenship spent some 300 percent more than Benjamin's own campaign.

Massey and Benjamin both had contended that it was McGraw's infamous speech at a Labor Day rally in Boone County during which he railed against Republicans, not Blankenship's money, that cost him the election.

Kennedy said it would be difficult to reach a conclusion about why Benjamin won the election. But Kennedy said it was foreseeable that Blankenship was moving to elect a judge he knew would be deciding whether to overturn the $50 million verdict.

"Although there is no allegation of a quid pro quo agreement, the fact remains that Blankenship's extraordinary contributions were made at a time when he had a vested stake in the outcome," Kennedy wrote. "Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when-without the consent of the other parties-a man chooses the judge in his own cause.

"And applying this principle to the judicial election process, there was here a serious, objective risk of actual bias that required Justice Benjamin's recusal."

The majority also discounted arguments from Massey and groups that filed briefs in support of the coal company, that decision in Caperton's favor would unleash a flood of recusal motions and interference in judicial elections.

Kennedy wrote that the Blankenship-Benjamin situation was an "extreme" one and that there was no evidence of other campaign situations that were similar. He said the court's previous decisions in recusal cases have not had adverse effects, because each case contained extreme circumstances.

Chief Justice John Roberts, in a dissenting opinion, said he feared the majority's ruling would undermine the "need for a fair, independent and impartial judiciary." Roberts was joined in his dissent by justices Antonin Scalia, Samuel Alito and Clarence Thomas.

Roberts wrote that until the Caperton decision, the court had only recognized two instances that require judicial recusal -- when a judge has a financial stake in the outcome of a case and in certain criminal contempt proceedings, like when a defendant openly shows disdain for a judge in court.

"Today, however, the court enlists the Due Process Clause to overturn a judge's failure to recuse because of a 'probability of bias,'" Roberts wrote. "Unlike the established grounds for disqualification, a 'probability of bias' cannot be defined in any limited way.

"The court's new 'rule' provides no guidance to judges and litigants about when recusal will be constitutionally required. This will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be."

Roberts said this will only further erode public confidence in judicial independence, and leaves state courts to wrestle with issues that U.S. Supreme Court did not provide any guidance on. Roberts lists 40 such issues in his dissent, ranging from how much in campaign contributions is too much to whether parties are entitled to discovery in judicial recusal proceedings.

"These are only a few uncertainties that quickly come to mind," Roberts wrote. "Judges and litigants will surely encounter others when they are forced to, or wish to, apply the majority's decision in different circumstances.

Monday's opinion requires state and federal judges simultaneously to act as political scientists (why did candidate X win the election?), economists (was the financial support disproportionate?),and psychologists (is there likely to be a debt of gratitude?)."

Roberts also questioned whether Blankenship's spending in the 2004 race presented an "extreme" situation. Roberts noted that another group, Consumers for Justice, spent $2 million supporting McGraw in the race. Blankenship's spending on other state races seems to go against the notion that Blankenship spent the money with the appeal of the $50 million verdict in mind.

Roberts said he's not convinced that Blankenship's money played a greater role in Benjamin's victory than the wide politicization of McGraw's Labor Day speech, his refusal to debate Benjamin or that all but one of the state's major newspapers endorsed Benjamin.

"It is an old cliche, but sometimes the cure is worse than the disease," Roberts wrote. "I am sure there are cases where a 'probability of bias' should lead the prudent judge to step aside, but the judge fails to do so. Maybe this is one of them.

"But I believe that opening the door to recusal claims under the Due Process Clause, for an amorphous 'probability of bias, will itself bring our judicial system into undeserved disrepute, and diminish the confidence of the American people in the fairness and integrity of their courts. I hope I am wrong."

Justice Antonin Scalia, in a separate dissent, echoed Roberts' concerns, saying that the majority's opinion has done little but create a "vast uncertainty" about recusal in the 39 states that elect judges.

Scalia said that while Caperton argued that the justices should take up the case to preserve public confidence in courts, the decision will have the opposite effect.

"What above all else is eroding public confidence in the nation's judicial system is the perception that litigation is just a game, that the party with the most resourceful lawyer can play it to win, that our seemingly interminable legal proceedings are wonderfully self-perpetuating but incapable of delivering real-world justice," Scalia wrote.

"The court's opinion will reinforce that perception, adding to the vast arsenal of lawyerly gambits what will come to be known as the Caperton claim."

Massey has a case pending in U.S. District Court challenging the constitutionality of the state Supreme Court's recusal method. That case was stayed pending the outcome of the Caperton case.

The court's ruling means the Caperton case will go back to West Virginia for further proceedings.

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