W.Va. Case Tests When Judges Should Step Aside

The Supreme Court hears arguments Tuesday in the case of a West Virginia state supreme court justice who participated in a lawsuit involving a major campaign contributor. The party, which eventually lost, is appealing, on the ground that the justice should have recused himself. The U.S. Supreme Court will consider whether judges must recuse themselves when they might be seen to have a bias, even when they don't have a personal stake in the outcome of the case.

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The U.S. Supreme Court takes up a question today that hits close to home for the justices: When should a judge disqualify himself or herself from sitting on a case? U.S. Supreme Court justices are appointed for life, but in most states, some or all judges are elected, with all the potential conflicts that political campaigns sometimes suggest.

So, the Court must consider this scenario: When a judicial candidate wins election to the bench with the help of millions of dollars from the CEO of a company, does the Constitution require that judge disqualify himself from ruling in a case that involves the political donor?

Here's NPR legal affairs correspondent Nina Totenberg.

NINA TOTENBERG: If the facts sound like a movie script, well, that's because they mirror John Grisham's 2008 bestseller "The Appeal," only this is not fiction.

Hugh Caperton owned a small high-grade coal company in West Virginia. Its competitor, Massey Coal, the fourth-largest coal company in the nation, wanted Caperton's business. Massey forced Caperton into bankruptcy through a series of actions, like buying up the land around Caperton's mine, leaving Caperton with no road or rail access.

Caperton sued Massey Coal and won a $50 million jury award. Massey appealed for years, and when the case was finally en route to the State Supreme Court, the company's CEO and president, Don Blankenship, spent more than $3 million to defeat a controversial incumbent on that court and to elect a little-known West Virginia lawyer. After a rough campaign, the Blankenship candidate, Brent Benjamin, was elected.

Hugh Caperton's lawyers then sought to have the new justice disqualify himself from the case, but Justice Benjamin refused three times. Hugh Caperton.

Mr. HUGH CAPERTON (Former Coal Company Owner): I remember thinking to myself how in the world is this going to be a fair trial?

TOTENBERG: In the end, Justice Benjamin would twice cast the deciding vote in favor of Massey Coal, overturning the jury verdict and against Caperton. In a subsequent written explanation, he said the canons of judicial ethics only required him to disqualify himself if he had a financial interest in the case, which he did not.

Justice BRENT BENJAMIN (West Virginia Supreme Court): The fact that Mr. Blankenship or anybody else supported my campaign, I appreciate them, but it doesn't change the way I believe.

TOTENBERG: That was Justice Benjamin in an interview with West Virginia Public Broadcasting. One of Benjamin's fellow justices, Larry Starcher - now retired -didn't see things that way.

Justice LARRY STARCHER (Retired, West Virginia Supreme Court): These huge expenditures of money in a particular race is nothing but an effort to buy a seat on the Supreme Court, and I think that's what happened in that election.

Mr. DON BLANKENSHIP (CEO, Massey Coal): I've never bought a vote. All I did was set out to make the public aware of the issues.

TOTENBERG: Massey's CEO Don Blankenship contributed only $1,000 of his money directly to the Benjamin campaign. But the $3 million he spent independently accounted for roughly 60 percent of the money spent for Benjamin. Blankenship notes that plaintiffs' lawyers spent lots of money, too - $1.5 million in independent expenditures came from lawyers like Hugh Caperton's attorney, whose firm gave $30,000 to the campaign against Benjamin.

Still, Massey Coal's CEO, Don Blankenship, spent an amount that dwarfed anyone else's. So, given the size of his one-man crusade, how would he have felt if the shoe were on the other foot?

Mr. BLANKENSHIP: I've been in that situation for 20-something years. I've been, you know, a manager at Massey where you wonder and worry whether you're getting a fair shake and the other side is contributing heavily to the judge. But I've never felt like then I should whine about it.

TOTENBERG: Indeed, political contributions to judicial campaigns are not new, but they are growing exponentially, and the campaigns are growing in intensity, too. Now, Hugh Caperton, the bankrupt coal company owner, is in the U.S. Supreme Court contending he was denied his constitutional right to a fair hearing.

Ted Olson, who served as solicitor general in the Bush administration, is representing Caperton and his bankrupt company. He will tell the justices today that nobody can prove actual bias, only the probability of bias. And in this case, where Don Blankenship spent more money to benefit Justice Benjamin than all of Benjamin's other supporters combined, that probability exists.

Mr. TED OLSON (Attorney; Former Solicitor General, the Bush Administration): I think that this case presents a circumstance where almost everyone would look at it and say that's not right. You can't get a fair hearing from a judge who receives such an overwhelming amount of money from someone who is coming before that judge.

Mr. ANDREW FRYE (Attorney): The standard is what would a (unintelligible) reasonable person think, not what does the public think.

TOTENBERG: Andrew Frye is representing Massey Coal and Don Blankenship in the Supreme Court today. He will tell the justices that because Blankenship is not himself a party to the case and is not a lawyer in the case, his campaign spending is irrelevant. Blankenship's personal spending, Frye argues, does not translate into bias on Justice Benjamin's part.

Former Texas State Chief Justice Tom Phillips has filed a brief in the case on behalf of the Conference of Chief Justices. Technically, the conference has not taken a position for or against disqualification in this case. But the brief argues that campaign support can be equivalent to a judge owning stock in a company that's before him.

The question, says former Chief Justice Phillips, is not what is within the heart and soul of the judge.

Mr. TOM PHILLIPS (Former Chief Justice, Texas Supreme Court): The question is, is the relationship between the judge and the facts of this case such that a reasonable person going into that court for trial would think the deck would be stacked against them to such an extent that they're being denied the promise of a fair and impartial trial?

TOTENBERG: Massey Coal's lawyer, Mr. Frye, warns that there's a practical problem, if the Supreme Court forces disqualification in a case like this.

Mr. FRYE: It would apply across the board to a lot of different situations where the judges arguably owe their appointment to a party before them. So, it would work as sea change in the existing practices.

TOTENBERG: Should a judge disqualify himself, for example, when a case involves a governor or president who appointed him? Should a judge disqualify himself if a case involves a newspaper that endorsed him during the election campaign? And just how much in campaign spending is enough to force disqualification?

Caperton's lawyer Ted Olson argues that our system is based on constitutional minimums.

Mr. OLSON: That's why we have a constitution. We have federal constitutional rights when we step before a judiciary to have a fair hearing in a fair tribunal. If state laws aren't sufficient to do that, the Constitution gives the Supreme Court the power to say where the line should be drawn.

TOTENBERG: And just as the Supreme Court has gradually set the minimums, for example, on punitive damages, so to, he argues, can it start down that road with judicial campaign spending. The question is of huge significance, given that 39 states elect at least some of their judges. And in the last eight years, campaign spending on judicial elections has doubled.

Indeed, spending on judicial races has alarmed enough people that in this case, business groups and their natural enemies, plaintiffs' lawyers, have teamed up in favor of a new constitutional rule on disqualification.

On the one hand, the justices have never before entered the political thicket of campaign contributions to judges. On the other, usually warring parts of American society have never before so clearly viewed the merger of campaign cash and courtroom as such a threat to judicial independence.

Nina Totenberg, NPR News, Washington.

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