Should judges step aside when campaign cash is involved?

A West Virginia case before the US Supreme Court could clarify when judges must recuse themselves.

By , Staff writer of The Christian Science Monitor

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    CONFLICT? Critics say West Virginia Supreme Court justice Brent Benjamin benefited when a coal company executive spent $3 million on a judicial election.
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Judges are expected to avoid not only direct financial conflicts of interest in cases before them but also the appearance of a conflict. The safeguard is designed to enhance public confidence in the nation's jurists as fair and impartial arbiters of the law.

If a judge accepted a $3 million gift from one party in a lawsuit, the judge would clearly be obligated to step aside. But what if the $3 million was spent in the context of a hard-fought judicial election?

That's the question at the center of a potential landmark case from West Virginia set for oral argument at the US Supreme Court on Tuesday involving judges, recusal, and the credibility of the judiciary.

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At issue is whether a newly elected justice on the West Virginia Supreme Court of Appeals should have stepped aside in a case involving a coal company executive who spent $3 million to help defeat the former occupant of that justice's seat on the state high court.

The underlying case was a template for John Grisham's bestselling 2008 legal thriller "The Appeal."

The case is being closely watched because it arises at a time of sky-rocketing campaign spending in judicial elections. A high court decision could set new standards for when judges are required to excuse themselves from deciding cases involving individuals who made substantial contributions to their campaigns.

Or it could leave the recusal decision solely in the hands of the judge – in the same way that US Supreme Court justices decide entirely on their own whether to sit on a case or step aside.

"This was bound to happen, if not in West Virginia then somewhere else," says Bert Brandenburg, executive director of Justice at Stake, a group opposed to the proliferation of money in judicial elections.

"As big money becomes the new normal it just won't be that surprising if a new generation of judges comes of age feeling much more comfortable with a river of interest group money swirling around them and pouring into our courts of law," Mr. Brandenburg said during a recent panel discussion hosted by the American Constitution Society.

Critics say any judge who benefits from large campaign contributions or independent expenditures targeting an opponent may feel a debt of gratitude that could find expression later from the bench.

Others say people don't become judges to get rich or engage in corruption. They do it because they care about the law. As such, they deserve a presumption of impartiality, these analysts say.

The case stems from a long-running dispute between Hugh Caperton, a mining executive, and Don Blankenship, chairman and CEO of the Massey Coal Co. Mr. Caperton sued Blankenship's company for a series of behind-the-scenes dealings that Caperton says drove his mining business into bankruptcy. Caperton won a $50 million jury verdict for illegal contract interference and fraud.

Massey filed an appeal with the West Virginia Supreme Court of Appeals, the state's highest and only appellate court.

Two years earlier, the five-justice West Virginia high court had been at the center of a $3 million campaign by Blankenship, Massey's CEO, to unseat incumbent Justice Warren McGraw.

The effort featured a barrage of negative television ads accusing Justice McGraw of voting to release a child molester so he could work in a school.

McGraw lost the election. A West Virginia lawyer, Brent Benjamin, won the high court seat and was sworn in as a justice in January 2005.

Even before Massey's appeal reached the West Virginia Supreme Court in October 2006, Caperton asked Justice Benjamin to step down from consideration of the case. He said the justice had been the beneficiary of Massey's $3 million campaign to unseat McGraw. It created a "constitutionally unacceptable appearance of bias," his lawyers said.

Justice Benjamin refused to step aside. Eventually, the West Virginia Supreme Court of Appeals voted 3 to 2 to throw out the $50 million verdict against Massey. Benjamin voted in Massey's favor. Calls for recusal continued. Two justices bowed out, but not Benjamin. On rehearing, the state high court again voted 3 to 2 to throw out the $50 million verdict. Again, Benjamin voted in Massey's favor.

The issue before the Supreme Court is whether Benjamin is required under the Constitution's due process clause to step aside, or whether he acted properly in rejecting recusal motions and ultimately deciding the case.

"Justice Benjamin's decision not to recuse himself was constitutionally flawed and should be reversed," writes Caperton lawyer Theodore Olson in his brief to the court. "[Hugh Caperton] had a constitutional right to a panel of neutral and detached judges to decide this appeal."

Lawyers for Massey counter that judges are required to step aside in cases where they might benefit financially, but that a "probability of bias" does not trigger a constitutional mandate to step aside.

"The [$3 million] expenditures at issue were not solicited by Benjamin and, except for a $1,000 contribution to his campaign, were made entirely independently," writes Massey lawyer Andrew Frey, in his brief to the court.

Mr. Frey adds that despite allegations of bias favoring Massey, "Justice Benjamin has voted against Massey affiliates in at least five other cases, including one involving a $243 million judgment against the company."

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