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CANON 5:  A judge or judicial candidate shall refrain from inappropriate political activity.

CANON 2:  A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities.
-- Model Code of Judicial Conduct, 2004 Ed.

The Tribulation of Hon. Brent D. Benjamin

Justice, West Virginia Supreme Court
The American Bar Association justifies its preference for appointment of judges by pointing out egregious abuses of judicial discretion by elected judges.  A current example is the conflict of interest exhibited by Justice Brent D. Benjamin in Caperton et al. v. Massey Coal Co., now before the U.S. Supreme Court as Case No. 08-22.  This case focuses on the disqualification of Benjamin who was elected to his seat with the aid of more than $3 million in campaign contributions from Don L. Blankenship, CEO of Massey Energy, the parent company of Massey Coal Co.

Justice Benjamin twice cast the pivotal vote in a 3-to-2 majority to dismiss a $50 million verdict against Massey for fraudulent business tactics against a rival mining company, and he adamantly refused to disqualify himself from the case, explaining that his judgment was based on the merits.

The appearance of Justice Benjamin's conflict of interest in the Massey case has been exploited by establishment judicial advocacy groups such as the Brennan Center for Justice and Justice at Stake which have joined in a chorus [see PDF]1 calling for his recusal — a development that the American Bar Association welcomes in its campaign to replace the election of judges with an appointive process over which it would exert great influence.

U.S. Supreme Court Is Asked to Fix Troubled West Virginia Justice System
October 12, 2008

WASHINGTON — The justice system in West Virginia is broken and the United States Supreme Court should take steps to fix it, according to a pile of briefs in three cases awaiting the court's attention.

The chief justice of the West Virginia Supreme Court lost an election in May, after pictures of him vacationing in Monte Carlo surfaced in the newspapers. He was with a powerful coal-company executive who had business before the court.

A second justice has called the executive, Don L. Blankenship, stupid, evil and a clown who was "trying to buy influence like buying candy for children." That justice, Larry V. Starcher, has disqualified himself only selectively from cases involving Mr. Blankenship's company, Massey Energy.

A third justice, Brent D. Benjamin, won his seat with the help of more than $3 million from Mr. Blankenship but has refused to disqualify himself from cases involving Massey, and twice joined a 3-to-2 majority throwing out a $50 million verdict against the company.

The United States Supreme Court is likely to announce this week whether it will hear the first of the cases, about whether the Constitution's due process clause requires Justice Benjamin to step aside in the $50 million Massey case.

The case, Caperton v. A. T. Massey Coal Company, No. 08-22, has attracted supporting briefs from the American Bar Association and several other groups urging the court to hear the case.

"If the public believes that judges can be bought," said Keith R. Fisher, a lawyer for the bar association, "that is really poisonous and undermines public confidence in an independent judiciary."

James Sample, a lawyer with the Brennan Center for Justice at New York University School of Law, which also filed a supporting brief, called Mr. Blankenship's campaign spending "a brazen attempt to purchase influence in a specific pending case."

Justice Benjamin did not respond to a request for comment. In a long opinion issued in July explaining his decision not to disqualify himself, he said he had judged the case on the merits and that only proof of a judge's actual bias, as opposed to the appearance of a conflict, requires recusal.

Massey has filed a brief urging the Supreme Court not to hear the case, calling the matter "a grand conspiracy theory." The Massey brief said the United States Supreme Court "has never adopted a 'looks bad' due process test."

The plaintiffs in the case are mining companies that say they were driven out of business by fraud committed by Massey. They are represented in the Supreme Court by Theodore B. Olson, a former United States solicitor general.

"Individuals and entities that have business before the courts of the United States must be assured that the judges who handle their cases handle them truly, squarely and fairly," Mr. Olson said.

Mr. Olson argued and won the leading decision in this area, Aetna Life Insurance v. Lavoie, which was decided in 1986. But that case established only that the Constitution can require judges with a financial stake in the outcome of a case to disqualify themselves. Caperton, by contrast, turns largely on whether millions of dollars in campaign support from an interested party creates an appearance of impropriety so strong that recusal is required.

Massey takes a different position in a second appeal to the United States Supreme Court, this one urging the court to disqualify Justice Starcher, he of the intemperate remarks. "There would be no inconsistency" in granting that appeal while turning back the one concerning Justice Benjamin, a Massey brief said, because Justice Starcher's bias was manifest while Justice Benjamin's conflict of interest, if there was one, was a question of appearances only.

Justice Starcher has acknowledged having said some harsh things, and in an opinion in April he apologized for his remarks about Mr. Blankenship. "He is obviously an intelligent person," Justice Starcher wrote of Mr. Blankenship.

But Justice Starcher added that he would disqualify himself only if Justice Benjamin did. If that is a violation of due process, he wrote, "so be it." Should the United States Supreme Court hear the matter, he continued, "we will surely be told that $3,500,000 in electoral support by the C.E.O. of an active litigant in the court is sufficient to create 'an appearance of impropriety.' "

In a telephone interview on Thursday, Justice Starcher said he could keep an open mind in cases involving Massey and Mr. Blankenship.

"I don't have any bias against them in a legal sense," Justice Starcher said. He proposed an analogy. "I don't smoke," he said. "I don't advise my children to smoke. But I don't get off tobacco cases."

Justice Starcher added that the defeat of the chief justice, Elliott E. Maynard, and the series of Massey cases have strained personal relationships on the court. "Some of the justices still barely speak to each other," he said. "It's a little tense."

The respondents in the second case, Massey Energy v. Wheeling Pittsburgh Steel Corporation, No. 08-218, are also represented by Mr. Olson. His brief is due Oct. 22, and he said it was premature to discuss what it would say about Justice Starcher.

The petition in that case and a third one, NiSource v. Estate of Tawney, No. 08-219, also attack a distinctive aspect of West Virginia justice: companies hit with enormous punitive damages awards there have no right to an appeal.

Only two states, West Virginia and Virginia, do not guarantee at least one level of appellate review in civil cases. But Virginia caps punitive damages at $350,000.

West Virginia was responsible for three of the seven largest verdicts in 2007, according to The National Law Journal. Yet when two of those verdicts — one for some $400 million, the other for about $220 million — reached the West Virginia Supreme Court, the justices declined to hear appeals.

Andrew L. Frey, a lawyer for Massey, said the failure to allow at least one complete appeal violated due process.

"The risk of error if you leave it to a single judge, particularly an elected judge with a local constituency to accommodate, is too great," Mr. Frey said.

It is not at all clear, however, that the Constitution guarantees a right to an appeal in a civil case. In criminal cases, the Supreme Court has repeatedly said there is no constitutional right to an appeal. And the relatively cursory review provided by the West Virginia Supreme Court over whether to hear an appeal at all may satisfy any constitutional requirement that there be appellate review.

The U.S. Supreme Court heard oral arguments in the Caperton case on March 3, 2009 [see PDF].  On June 8, 2009, in a surprising 5-to-4 decision, the Supreme Court ruled in favor of Caperton and against Massey [see PDF], leading some observers to predict a flood of new appeals from litigants claiming a biased judge.

Copyright 2008, The New York Times Company

From: Adam Liptak, "U.S. Supreme Court Is Asked to Fix Troubled West Virginia Justice System," The New York Times, October 12, 2008, http://www.nytimes.com/2008/10/12/washington/12scotus.html, accessed 02/11/09.  Video clips were from http://www.abcnews.go.com/video/playerindex?id=4612112, accessed 03/08/09.  Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.

  1. Of the 19 Amicus Curiae briefs submitted to the U.S. Supreme Court, 14 argued in favor of Caperton and 5 argued in favor of Massey.  The unusally large number of Amici Curiae suggests the importance of the Caperton case to the legal profession and demonstrates how pressure can be applied to influence the justices of the high court.  See: Brennan Center for Justice, "Caperton v. Massey: Amicus Briefs in Support of Petitioners, with Excerpts; Amicus Briefs in Support of Respondents; and Filings in Support of Supreme Court Cert," posted January 5, 2009, http://www.brennancenter.org/content/resource/caperton_v_massey, accessed 02/13/09.










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