Benjamin talks about Caperton; says there is 'no magic bullet' to judicial independence

By Bethany Krajelis | Aug 3, 2012

Quince and Benjamin

CHICAGO - Shortly after the U.S. Supreme Court handed down its decision in Caperton v. Massey, West Virginia Supreme Court Justice Brent Benjamin said attendants of a local judicial gathering asked him for his take on the court's blockbuster ruling.

Benjamin, whose decision not to recuse himself from the case spurred the court's 2009 opinion, said he told his colleagues that, "I don't want any judge to ever tell me again that I don't know what it's like to be reversed."

Although Benjamin declined to disqualify himself from hearing an appeal in the case, the majority of the U.S. Supreme Court determined that due process required him to do so.

The defendant in the case, Hugh Caperton, president of Harman Mining Co., asked for Benjamin's recusal, arguing that it was necessary because the CEO of the defendant, A.T. Massey Coal Co., had spent $3 million to help Benjamin's 2004 campaign.

On Aug. 3, Benjamin discussed Caperton and his thoughts on recusal in Chicago, where he joined three other high court justices from across the nation to serve as panelists at a judicial independence forum at the American Bar Association's (ABA) annual meeting.

Benjamin said one of the "craziest" things he read about the case that put him and judicial recusal under the national spotlight was in the Economist. Underneath a photograph of himself, Benjamin said the newspaper included a headline that read, "Should Benjamin have taken the money?"

After the audience at Friday's forum let out a collective chuckle, Benjamin said, "I have never seen $3 million. I will never see $3 million, noting that he drives a 1997 Toyota.

Looking back at his 2004 race, Benjamin said it brought the issue of independent expenditures to the forefront. An independent political action committee, which received most of its money from former Massey CEO Don Blankenship, spent more than $3 million on advertising and other efforts to help Benjamin defeat incumbent Justice Warren McGraw.

Benjamin said because the court in Caperton didn't call for a bright-line rule on judicial recusal, judges now have to be concerned with the actions of third parties because of the possibility that the public may perceive judicial bias.

"Caperton left it to all of us ... to connect the dots, so to speak," he said.

Following the 2009 ruling, a handful of states put judicial recusal standards in place, something the ABA pushed for in its passage of House Resolution 107.

For instance, Georgia and Tennessee imposed a rule that requires a second justice to make the final decision on whether to recuse a justice from a case. Most states currently leave that decision solely to the justice being asked to recuse him or herself.

Carol Hunstein, the chief justice of Georgia's Supreme Court, spoke at Friday's forum along with North Carolina Supreme Court Justice Mark Martin and Florida Supreme Court Justice Peggy Quince.

Robert Peck, a law professor and president of the Center for Constitutional Litigation in Washington D.C., moderated the two-hour discussion.

"It's really important for judges to avoid even the appearance of impropriety," Hunstein said, adding that while her court has always tried to do so, she felt it was important to create a unified rule in Georgia after Caperton. "I think it's a really good rule."

Hunstein said she recused herself from a case in which she received campaign donations from one of the parties. Even though she knew she could be impartial, Hunstein said, "The real question is what is everyone else going to think?"

Quince said Florida's Supreme Court has not created any judicial disqualification rules since the Caperton ruling came down nearly three years ago, but that standards on recusal are already laid out in a state statute and a court rule.

These standards, she said, only apply to trial judges since they are subject to election. Quince said Supreme Court justices in Florida face merit retention, in which voters must approve their retention after the governor selects their names from a list submitted by a nominating committee.

Quince said she and two other justices are up for merit retention in November. They also happen to be named as defendants in a lawsuit that seeks to get the trio of justices booted from the ballot.

On top of the Caperton-related money issues they will have to pay attention to in their campaigns, Quince said they will have to be careful about who they hire to represent themselves in the lawsuit in order to prevent any concerns over bias.

"It's left us with this quandary," Quince said. "Who do we get to represent us and our campaign that's not going to force us to recuse ourselves later?"

Martin, of Florida's Supreme Court, said his court's ethical rules require recusal when impartiality may arise. Although his state offers public financing for judicial races, he said judges still face post-Caperton issues since attorneys often contribute to their campaigns.

Benjamin said West Virginia's high court has discussed the idea of creating a rule that imposes a duty on attorneys to disclose information, such as campaign contributions. He said some of his colleagues have dubbed it the "Benjamin rule."

Fixing the public's perception of the judiciary is a two-way street, Benjamin said. Judges, he said, don't want to be blindsided when they walk into the courtroom either.

While the panelists acknowledged that attorneys might be apprehensive to file recusal requests or disclose concerns, they agreed that it's necessary. After all, they said, attorneys are often in better positions to know the ins-and-outs of a specific case than judges who have numerous cases on their plates.

"If it weren't for the Caperton attorney filing a motion, we wouldn't have had the Caperton case," Benjamin said.

Even if attorneys are nervous to ask for the recusal of judges they will have to appear before again, Benjamin said "they still have to do it" if the situation calls for it.

Both Benjamin and Martin said public education can also go along way in assuring the public the judiciary is independent, despite the fact that many of them run on partisan ballots and receive campaign donations from interested parties.

Martin boasted about a voting guide his state puts out and Benjamin said his colleagues have made more of an effort to educate the public on the court's duties.

But, when it comes to appeasing the public's concern over judicial independence, Benjamin said, "I wish I could tell you there was a magic bullet, but I haven't found one."

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