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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.

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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.

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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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