Benjamin ruling could affect court review
June 9, 2009

CHARLESTON — A U.S. Supreme Court ruling that faults state Justice Brent Benjamin for not recusing himself from a case involving a generous campaign supporter may aid a pending review of West Virginia's court system, but legal experts differ on its overall effect.

Massey Energy Co. Chief Executive Don Blankenship spent at least $3 million to help elect Benjamin in 2004. Benjamin later sided with the Richmond, Va.-based coal producer in a 3-2 ruling that overturned a $50 million verdict won by Harman Mining Co. and its president, Hugh Caperton, in a contract dispute.

Benjamin had refused to step aside despite repeated requests from Harman and Caperton, who appealed to the U.S. Supreme Court and prevailed in Monday's 5-4 decision.

The U.S. justices found that Blankenship's spending "had a significant and disproportionate influence on the outcome."

"The Supreme Court said, 'Enough is enough,"' said Bert Brandenburg, executive director of the nonpartisan Justice at Stake Campaign, which filed a brief on Harman and Caperton's behalf. "Today's ruling is a critical first step. But states that elect judges must get to work now, to keep campaign cash out of our courts of law."

But Putnam County Circuit Judge O.C. Spaulding, head of West Virginia's association of judges and justices, noted that the ruling sets no definite line that a campaign benefactor must cross to trigger recusal.

"That's the difficulty of this decision: what's large enough?" Spaulding said Monday.

State Democratic Party Chairman Nick Casey also questioned the ruling's effect on West Virginia's method of electing its judiciary in partisan balloting.

"I don't think it's an indictment of our selection process," said Casey, a lawyer.

But Monday's ruling also arrives after Gov. Joe Manchin commissioned the latest in a series of studies of the state's court system.

"Today's Supreme Court decision is one more piece of information that needs to be considered in making recommendations about our judicial system and any reforms that the commission may recommend," Manchin spokesman Matt Turner said.

Turner said the review and any changes that might be adopted to the court system "are important to ensure that our citizens have confidence in their judicial system in West Virginia."

State GOP Chairman Doug McKinney criticized the ruling for its reliance on the "perception" of bias.

"The Supreme Court has today established a new recusal standard based on perception rather than on actual bias," McKinney said. "The result will likely be a flood of recusal requests that will further create a bottleneck of backed up cases in our judicial system."

McKinney also noted that Monday's majority wrote that it "does not question Justice Benjamin's subjective findings of impartiality and propriety and need not determine whether there was actual bias."

Echoing McKinney, Benjamin said in a Monday statement that, "in focusing on the issue of due process, the Supreme Court's majority opinion recognizes that there is no 'white line' to guide judges like me in resolving the issue of an elected judge's duty to remain on a case versus the need to remove oneself due to external factors."

The ruling said that "the risk that Blankenship's influence engendered actual bias is sufficiently substantial that it must be forbidden if the guarantee of due process is to be adequately implemented," adding later that "there was here a serious, objective risk of actual bias that required Justice Benjamin's recusal."

Benjamin is the West Virginia court's sole Republican. State voters added Menis Ketchum and Margaret Workman to the five-seat bench in November. The pair displaced then-Chief Justice Elliott "Spike" Maynard in the Democratic primary, after he was hit by conflict-of-interest allegations arising from vacation photos of him with Blankenship in Monaco while Massey had cases pending before the court.

The death of Justice Joseph Albright in March, amid treatment for esophageal cancer, puts his seat on the 2010 ballot. Senate Judiciary Chairman Jeff Kessler hopes the ruling will sway Manchin to include in any upcoming special session a proposal requiring greater disclosure of independent political spending, and limiting that of corporations.

Federal judges have twice temporarily barred enforcement of previous versions of this legislation, which had been spurred largely by Blankenship's 2004 spending.

"I'm encouraged by the fact that the highest court in the land has now clearly established that it has great concerns about the influence that such great amounts of money can have," said Kessler, D-Marshall and a lawyer.

"The next question becomes, how do we know about the role of money and who is behind that money if we don't know who they are?"

Kessler said he will also urge Manchin to propose a public financing option for Supreme Court races. His committee endorsed such a measure during the recent regular session, but it failed to advance.

The U.S. Supreme Court appeal had attracted more than 16 "friend of the court" briefs from dozens of individuals and groups, mostly in support of Harman and Caperton. James Bopp, a lawyer for the James Madison Center for Free Speech, which filed a brief on Massey's behalf, agreed that Monday's decision's seemed tailored to the case at hand.

"If the people who are hostile to judicial elections are able to expand the decision, it would making have judicial elections very difficult, but as written this decision is extremely narrow and seems only to apply to the most extreme situation," Bopp said.

Monday's ruling sends the case back to the state Supreme Court, which "will follow the United States Supreme Court mandate," spokeswoman Jennifer Bundy said.

Copyright 2009,

From: Lawrence Messina, "Benjamin ruling could affect court review," The Herald-Dispatch, Huntington, West Virginia, June 9, 2009,, accessed 06/09/09.  Lawrence Messina writes for The Associated Press.  Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.
The New Standard is "The Probability of Bias"
June 10, 2009

What a surprise it was to learn how the U.S. Supreme Court ruled in the case of Caperton v. Massey Coal Co.

That case focused on the disqualification of West Virginia Supreme Court Justice Brent D. Benjamin, who was elected to his seat with the aid of more than $3 million in campaign contributions from the CEO of Massey Energy, the parent company of Massey Coal Co. Justice Benjamin, who refused to disqualify himself from the case, subsequently cast the pivotal vote in a 3-to-2 majority to dismiss a $50 million verdict against Massey, claiming that his judgment was based solely on the merits.

Caperton appealed the case to the U.S. Supreme Court.

Historically, judges have had ultimate discretion over whether to disqualify themselves when there is an apparent conflict of interest, and they often rule in cases that involve a party who has helped to finance his or her election. I reasoned that Justice Benjamin did not engage in an activity that differed in principle from the conduct of countless judges who have taken campaign contributions from parties who later appeared before them as litigants. Only the degree of the apparent conflict of interest differentiated Benjamin from the others, and I predicted that the high court would find it impossible to define limitations to a principle that it basically supports.

Nevertheless, five of the justices found that the extreme facts of the case raised the probability of actual bias, and they ruled that Justice Benjamin should have disqualified himself in order to meet the 14th Amendment's guarantee of "due process of law." The justices may have been influenced, in part, by pressure exerted by numerous groups that submitted Amicus briefs that sided with Mr. Caperton.

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,, accessed 02/13/09.

Four of the justices strongly dissented and predicted that the decision to favor Caperton could lead to the court system being flooded with challenges by litigants claiming an appearance of bias by judges. Chief Justice John Roberts wrote that, with its standard of probable bias, the decision of the majority provides no clear guidance to judges. "How much money is too much money?" he asked.

Justice Antonin Scalia added, "...the principal consequence of today's decision is to create vast uncertainty with respect to a point of law that can be raised in all litigated cases in (at least) those 39 states that elect their judges."

The outcome of the Caperton case will surely boost public awareness to the influence of campaign contributions on judicial outcome. It will also provide additional justification that can be used by the legal establishment in its campaign to replace the democratic process of judicial elections with an appointive process. What better way to allow bar associations to select their own candidates for judgeships.

Exerpted from: Carl Bernofsky, "The New Standard is the 'Probability of Bias', OpEdNews, June 10, 2009,  Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.

Additional Reading

  1. Jess Bravin and Kris Maher, "Justices Set New Standards for Recusals," The Wall Street Journal, June 9, 2009.

  2. Nathan Koppel, "Court's Ruling on 'Probable Bias' by Judges Spotlights Political Reality," The Wall Street Journal, June 10, 2009.

  3. "Judges and 'Bias' – The Supremes trample on state courts," [Editorial], The Wall Street Journal, June 10, 2009.

  4. Mark Sherman, "Court says judges must avoid appearance of bias," The Herald-Dispatch, Huntington, West Virginia, June 9, 2009.

  5. Adam Liptak, "Justices Tell Judges Not to Rule on Major Backers," The New York Times, June 9, 2009.

  6. Warren Richey, "Supreme Court: Judges must step aside when there's perception of bias," The Christian Science Monitor, June 8, 2009.

  7. Brennan Center for Justice, "Supreme Court Reverses Decision in Caperton v. Massey," [Press Release], June 8, 2009, supreme_court_reverses_decision_in_caperton_v_massey1, (delete space), accessed 06/09/09.

  8. Jeff Patch, "'Probability of bias' and 'I know it when I see it'," [Blog], Center for Competitive Politics, June 9, 2009,, accessed 06/10/09.

  9. Don Blankenship, "Don L. Blankenship Addreses the U.S. Supreme Court Ruling on Caperton v. A.T. Massey Coal Company, No. 08-22," [Press Release], PR Newswire, June 10, 2009.










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