Gavel Grab

Hugh Caperton’s longtime battle with the former A.T. Massey Coal Company, which resulted in a landmark 2009 Supreme Court decision about runaway judicial election spending and impartial courts, isn’t fading into history.

The conflict and the role of Caperton’s two Pittsburgh attorneys is the topic of a book scheduled for publication soon, called “The Price of Justice.” It presents a compelling tale that is sympathetic to Caperton, according to a Pittsburgh Post-Gazette review.

The book by Laurence Leamer also delivers a decidedly unsympathetic view of the West Virginia Supreme Court. Regarding businessman Caperton’s legal dispute with then-Massey Chief Executive Officer Don Blankenship, the review says:

“With a careful attention to detail, Mr. Leamer chronicles intrigue inside the West Virginia Supreme Court of Appeals, which three times took up Massey’s appeal of the $50 million awarded to [Caperton's] Harman Development. From Justice Elliott ‘Spike’ Maynard, who vacationed with Mr. Blankenship on the Riviera then ruled with the majority in throwing out the $50 million verdict against Massey, to Justice Brent Benjamin, who refused to recuse himself Read more

Hugh Caperton (photo), plaintiff in a landmark 2009 Supreme Court decision about runaway judicial election spending and impartial courts, has won a significant round in his long-running legal dispute with the former A.T. Massey Coal Company.

The Virginia Supreme Court has ruled that Caperton and his coal companies can proceed with a 2010 lawsuit against Massey in a Buchanan County, Va. court, according to the West Virginia Gazette. Although a West Virginia jury awarded in 2002 a $50 million verdict in favor of a Caperton company in similar litigation, the West Virginia Supreme Court voted on three different occasions to overturn that verdict. Caperton contends his companies were harmed financially after Massey reduced the quantity of coal that it had agreed to purchase.

In November 2009 the West Virginia court issued its ruling  after Justice Brent Benjamin had recused himself due to the U.S. Supreme Court’s decision in Caperton v. Massey. The U.S. Supreme Court ruled that excessive campaign spending in a judicial election could force elected judges to step aside from some cases involving campaign supporters. Then-Massey Chief Executive Officer Don Blankenship had spent $3 million to help Benjamin win election. Read more

A state Senate committee pared back a House-passed bill to make permanent a public financing program for West Virginia Supreme Court candidates. The revised version would extend the program through 2016, when the next Supreme Court elections are held.

The Senate Judiciary Committee amended the legislation after concerns were expressed about adequate funding for the program, the Associated Press reported.

To learn more about the legislation, see Gavel Grab. The pilot public financing program for judicial elections was adopted after West Virginia became a poster child for campaign finance reform advocates, in light of the U.S. Supreme Court’s 2009 ruling in Caperton v. Massey.

The U.S. Supreme Court ruled then that a West Virginia Supreme Court justice could not participate in a case involving a coal company whose CEO had spent $3 million to help elect him. The high court said the “probability of bias” violated an opposing litigant’s right to a fair, impartial hearing.

Three of four candidates seeking election to two seats on the West Virginia Supreme Court said they support non-partisan judicial elections.

Democratic candidate Tish Chafin and Republicans Allen Loughry and John Yoder discussed their views at a forum sponsored by the South Charleston Chamber of Commerce, according to a State Journal article. The fourth candidate, incumbent Justice Robin Jean Davis, a Democrat, did not attend the forum.

“I think that it’s absolutely, entirely appropriate for you to expect political responses from your governors and from your legislators,” Loughry said. “The judiciary should be the nonpolitical branch of government.”

Another reform discussed at the forum involves judicial recusal. Chafin said Caperton v. Massey, a judicial election spending case from West Virginia that resulted in a landmark U.S. Supreme Court decision, gave the state a “black eye.” You can learn more about the candidates’ views on recusal reform from Gavel Grab.

At a West Virginia Supreme Court candidates’ forum before a pro-business audience, there was debate over the best way to protect fair and impartial courts through judicial recusal.

Four candidates for two seats on the court appeared at the event on Wednesday before the West Virginia Chamber of Commerce’s Annual Meeting and Business Summit, according to a West Virginia Record article.

Democrat Tish Chafin, a former State Bar president, has proposed changing the rules that apply to preventing justices from considering cases that could involve a conflict of interest. She proposes that a justice who declines to step aside in such a case could be taken off the case by action of the other four justices and a specially appointed judge (see Gavel Grab).

Currently, a justice can recuse voluntarily from hearing a case or elect to step aside if a party to the case requests it.

Conflict of interest concerns raised by spending to influence West Virginia court elections were highlighted by the U.S. Supreme Court in a 2009 decision, Caperton v. Massey. It was because of the backlash from that case that she has proposed the change, Chafin said.

“We need to step up and change the rules,” she said. “One case can erode confidence in the judiciary. It’s about ‘perceived bias’ and improving public perception of the Court.” Read more

Ever since spending exploded on state supreme court elections in 2000, one of the most urgent debates has involved judicial recusal—whether and when elected judges should step aside from cases involving campaign supporters.  No case crystallized that debate more starkly than Caperton v. Massey.

On Friday, the West Virginia justice at the center of that case, Brent D. Benjamin, forcefully defended his role in hearing a case involving the company of a coal executive who spent $3 million to help put Benjamin on the state’s high court. He said that despite the expenditures, he had no ties to Massey Coal Co., or its chief executive, Don Blankenship, and therefore was able to hear the case impartially.

Speaking at the American Bar Association’s annual meeting in Chicago, Justice Benjamin said his overall record showed no favoritism toward Massey Coal Co. “If you’re talking about bias, my batting average over four years was that my decisions were 80 percent against Massey. … I was told during the campaign that Don Blankenship didn’t think too highly of me. That’s probably even more true now.” Read more

Competing proposals to reform recusal rules for state Supreme Court justices are surfacing in West Virginia, where conflict of interest concerns raised by spending to influence court elections were highlighted by the U.S. Supreme Court in a 2009 decision.

According to a (Charleston, W.Va.) Daily Mail article, Chief Justice Menis Ketchum said he is working on developing a recusal proposal. He said he favors giving an independent person or a group of people the authority to decide whether a justice should be taken off a case, when potential conflict of interest questions are raised.

Tish Chafin, a candidate seeking the Democratic nomination for one of two seats on the court,  has announced a proposal whereby a justice who declines to step aside in such a case could be taken off the case by action of the other four justices and a specially appointed judge. Written decisions on all recusal motions would be required and would be made public.

To change the existing recusal rules, a vote by the full court would be required.

In 2009, the U.S. Supreme Court found in Caperton v. Massey that there was a risk of bias when a West Virginia  justice voted on a case involving a coal company whose chief executive had spent millions to help the justice win election. Caperton moved the issue of recusal to the national stage.

Justice at Stake and the Brennan Center for Justice have praised the Tennessee Supreme Court’s decision to strengthen that state’s judicial recusal rules.

The state’s new Code of Judicial Conduct, enacted this week, prohibits judges from hearing cases involving campaign supporters in which “the judge’s impartiality might reasonably be questioned.” The code also requires judges to issue written explanations if they decline to step down from a case, and allows litigants to appeal a judge’s decision.

In a statement issued today, JAS Executive Director Bert Brandenburg said, “The Tennessee Supreme Court should be applauded for taking this important step forward. Tennessee’s new, forward-looking rules will help ensure public faith in the court system, and provide a model for the rest of the nation to follow.”

Added Maria De Silva, research associate for the Brennan Center, “As spending on high court elections continues to skyrocket, judges and litigants need a clear way to address recusal questions related to campaign contributions. Tennessee’s new disqualification rules are a step in the right direction that will help shore up public confidence in the judiciary.”

In a new Slate commentary, election law expert Rick Hasen argues that a single, “unnecessary” sentence by Justice Anthony M. Kennedy has led to ”the unraveling of campaign finance law.” Hasen’s article examines two landmark Supreme Court cases in which Justice at Stake filed briefs–Citizens United and Caperton v. Massey.

Here is the sentence from Justice Anthony Kennedy’s majority opinion in Citizens United that Hasen targets: “We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”

Hasen asks the provocative question of whether a majority of the court, including Justice Kennedy, even believes the Citizens United sentence at issue, given an earlier ruling about third-party spending in judicial elections, in Caperton v. Massey. Hasen explains:

“The Citizens United decision is at odds with Kennedy’s opinion from just six months earlier in Caperton v. Massey, recognizing that a $3 million contribution to an independent group supporting the election of a West Virginia supreme court justice required that the justice recuse himself from a case involving the independent spender supporting his candidacy. The Caperton Court pointed to the ‘disproportionate’ influence of that spending on the race and at least an appearance of impropriety.”

Justice at Stake filed an amicus brief in Caperton and hailed the Supreme Court’s ultimate ruling. It filed an amicus brief in Citizens United, and when a decision was issued, warned that it threatened a cash deluge from corporate treasuries in judicial elections — and a grave threat to America’s courts.

While JAS focused on judicial elections, the initial impact of Citizens United is being felt at the federal level. Hasen said Justice Kennedy’s opinion has spawned federal “Super PACs,” the independent-expenditure committees that can receive contributions of unlimited size. Super PACs are likely to replace political parties “as a conduit for large, often secret contributions” in this election cycle, Hasen wrote.

Hasen operates Election Law blog.

The American Bar Association’s recent action to urge strong judicial recusal guidelines for states won praise from a New York Times editorial, entitled “Progress on Fair Courts.”

The resolution was adopted by the ABA House of Delegates at the organization’s annual meeting in Toronto. It urges states to establish clear procedures for dealing with judicial disqualification and for greater transparency about judges who receive campaign cash and lawyers and litigants who donate it (see Gavel Grab).

With its vote, the ABA “took overdue action to protect judicial fairness and impartiality in the face of skyrocketing special-interest spending in state judicial elections,” the editorial said.

A central part of the resolution urges state judiciaries, the editorial said, “to develop a prompt appeals process to avoid leaving any final decision about a judge’s impartiality to the challenged judge.” A second part sets out disclosure recommendations that can help shine a light on possible conflicts of interest for judges accepting campaign donations.

The editorial commended then-President Stephen Zack of the ABA for winning an agreement that satisfied different segments of the organization, including judges. It concluded:

“It is dismaying that two years after a landmark ruling by the Supreme Court in a case involving judicial campaign spending, few state court systems have put in place rigorous rules for recusal. The A.B.A.’s new resolution is advisory and will not change things overnight. Still, for the organization to advocate for strong action on recusal is an encouraging development — one leaders of state judiciaries should find hard to ignore.”

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