Supreme Court case focuses on issue of judges' bias

The Baltimore Sun

WASHINGTON - Hugh Caperton, a small coal mine owner from Slab Fork, W.Va,. was driven into bankruptcy after he ran up against the huge A.T. Massey Coal Company, but he got a measure of revenge when a jury awarded him $50 million in damages.

When Massey appealed to the West Virginia Supreme Court, however, Caperton knew he was in trouble. Massey's chief executive, Don Blankenship, had spent $3 million of his own money to elect a new justice. "The deck was stacked against us," Caperton said. As he feared, the newly elected Justice Brent Benjamin cast the deciding vote in a 3-2 ruling that overturned the verdict against Massey.

Now, 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, lawyer's groups and legal ethicists, most of whom decry the trend toward campaign-style races for judgeships.

In 38 states, including Maryland and California, some judges are elected. Nineteen states besides West Virginia and Illinois elect the justices of their supreme courts. Most are in the Great Lakes region - from Pennsylvania to Wisconsin - or across the Deep South, from Georgia to Texas.

The amount of money flowing into these races has more than doubled in the past decade, and most of it comes from businesses or trial lawyers. It has created the perception that justice can be bought, or 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 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, they stress. And Benjamin has voted against Massey in other, more recent cases, they note.

They and others are skeptical of the notion that judges should step aside based on an "appearance" of bias or because they owe a "debt of gratitude" to someone. If that standard were adopted, U.S. Supreme Court justices could be asked to bow out of cases involving presidents who nominated them, they say.

But Stephen Gillers, a legal ethics expert at New York University, said the justices should focus on the facts of this 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. Massey bought the processing firm that handled Caperton's coal and then bought the land around his mine.

For a time, Blankenship expressed interest in buying Caperton's company. After taking a close look inside the company, Blankenship backed away from a deal.

"It was a ruse," Caperton says.

Benjamin was a little-known Republican lawyer in Charleston, the state capital, when he sought to unseat Justice Warren McGraw in 2004. Blankenship gave just $1,000 directly to his campaign, but he spent nearly $3 million to pay for ads that attacked McGraw as "radical" and "soft on crime."

Benjamin won a narrow victory, becoming the first Republican since World War II to win election 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." However, if questioned, they decide for themselves whether their impartiality might "reasonably" be in doubt.

Justice Benjamin also said he had no personal relationship with Don Blankenship.

Two other justices did step aside, and were replaced by two judges named by Benjamin. Chief Justice Elliot "Spike" Maynard was photographed vacationing on the Riviera with Blankenship. The other, Larry Starcher, known as a liberal Democrat, stepped aside after he was quoted as saying the controversy over Benjamin and Blankenship "makes me want to puke." But the majority said the lawsuit should have been decided in western Virginia, where the coal processing firm was located, rather than in West Virginia.

Dejected, Caperton and his lawyers petitioned the Supreme Court to review the case. They won the support of the Brennan Center in New York 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. Why else would you give a lot of money to a judicial candidate?," asks Bert Brandenburg, executive director of Justice At Stake, a public-interest group which sees judicial elections as a threat to impartial justice.

The solution, says Caperton's Washington lawyer Ted Olson, is to require judges to step aside from a case when they owe an obvious "debt of gratitude" to one of the parties.

"You can't eliminate judicial elections. The people have no interest in changing that," says Olson, who formerly represented the Bush administration before the Supreme Court. "You can tell judges you have to take yourself out of a case if a reasonable person would question your ability to be impartial."

The Supreme Court will hear arguments in Caperton v. Massey on March 3.

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