“Lawyers for Massey suggest that the case is a Trojan horse whose real intent is to do away with judicial elections because any spending in such elections is suspect.”

Case May Alter Judge Elections Across Country
February 15, 2009

MATEWAN, W.Va. — Don L. Blankenship, the chief executive of the nation's fourth-biggest coal mining company, is not shy about putting his money where his mouth is when it comes to West Virginia politics.

In 2004, he spent $3 million on tough advertisements attacking a justice of the State Supreme Court who was seeking re-election. Some of the advertisements said the justice had agreed to free a sex offender.

"I thought we would beat him more easily than we did," Mr. Blankenship said, reflecting on how hard it was to persuade voters.

Brent D. Benjamin won that election and went on to join the 3-to-2 majority that threw out a $50 million jury verdict against Blankenship's company, Massey Energy.

The question of whether Justice Benjamin should have disqualified himself is now before the United States Supreme Court.

The case, one of the most important of the term, has the potential to change the way judicial elections are conducted and the way cases are heard in the 39 states that elect at least some of their judges. In many states, campaigns for court seats these days rival in both expense and venom what goes on in, say, a governor's race. Yet it is commonplace in American courtrooms for judges to hear cases involving lawyers and litigants who have contributed to or spent money to support their campaigns.

Mr. Blankenship, a large man with small eyes that betray nothing, does not often sit for interviews. When ABC News tried to ask him questions last year about pictures showing him in Monte Carlo with yet another State Supreme Court justice, he shoved a cameraman and suggested that someone was "liable to get shot" if the journalists persisted.

But Blankenship seemed eager to tell his side of things over a barbecue chicken lunch in a restaurant here and in the warren of trailers that serve as his office just over the Kentucky line. It is just foolishness, he said, to think that he had spent millions of dollars to gain an advantage in a particular case.

"I've been around West Virginia long enough to know that politicians don't stay bought, particularly ones that are going to be in office for 12 years," he said, referring to the terms of State Supreme Court justices. "So I would never go out and spend money to try to gain favor with a politician. Eliminating a bad politician makes sense. Electing somebody hoping he's going to be in your favor doesn't make any sense at all."

"Massey always has cases," he added. Indeed, the company is a frequent plaintiff, and it has attracted lawsuits over environmental, workplace safety and labor issues.

"If someone wanted to accuse me of something," Blankenship continued, "they would accuse me of trying to elect Benjamin to rule in our favor in hundreds of cases, not one case."

But that is precisely what some people here, including a retired member of the State Supreme Court, say happened. "We have one justice who was bought by Don Blankenship," Justice Larry V. Starcher said of Justice Benjamin in 2006, while the two men were colleagues on the court. "It makes me want to puke."

When the United States Supreme Court agreed to hear the case in November, much of the legal establishment cheered. Here was an opportunity, bar associations and law professors said, to draw a line separating big money from judicial decision making.

But briefs from Massey and its supporters suggest that the case, Caperton v. A. T. Massey Coal, No. 08-22, which will be argued on March 3, is more complicated than it first appears.

Mr. Blankenship was, for starters, not a party to the state court fraud case that gave rise to the $50 million verdict. He is not an especially large shareholder of Massey, and he does not stand to win or lose very much — about $175,000, by Massey's estimates — from its outcome.

On the other hand, Massey has paid Blankenship handsomely over the years — $23.7 million in salary, bonus, options and other compensation in 2007, by some estimates — and it is hard to disentangle his interests from those of the company.

His direct contribution to the Benjamin campaign was only $1,000, although that is the maximum allowed by law, and he spent most of the $3 million, paid from his own pocket, on television advertisements aimed at defeating the incumbent justice, Warren R. McGraw.

Blankenship said he was surprised they were not even more effective. "When you've got to choose between a guy who released a pedophile and a coal executive, it's a tossup," he said.

Blankenship, who has long been an active participant in the state's political life, said he had no social or other relationship with Justice Benjamin, who has voted against Massey at least five times.

"Brent Benjamin, rightfully or wrongfully, thinks I had nothing to do with his election," Blankenship said.

Justice Benjamin, now the court's chief justice, declined to be interviewed for this article. In rulings discussing whether he should have disqualified himself from the case, he said he could be fair and impartial.

In a memorandum on Jan. 30, though, Chief Justice Benjamin did temporarily disqualify himself from all Massey cases, saying "it would be personally and judicially disrespectful to the United States Supreme Court and its justices for me to proceed."

Lawyers for Massey suggest that the case is a Trojan horse whose real intent is to do away with judicial elections because any spending in such elections is suspect. "Any impartiality concerns raised by campaign spending are inherent in the state's decision to hold judicial elections," James Bopp Jr. wrote in a brief supporting Massey for the James Madison Center for Free Speech.

The briefs on Massey's side add that states should be allowed to run their legal systems as they see fit. It would be impossible, they say, to fashion a sensible rule to determine when contributions or independent expenditures should require recusal under the federal Constitution's due process clause. The other side says it has no problem with elections or financial support. But in rare cases involving especially large amounts from the people involved, they say, judges should be required to disqualify themselves.

Mr. Blankenship's advertisements, which said Justice McGraw had released a pedophile, were rough and arguably misleading. They concerned a youth who had been sexually abused from the age of 7 by two adult family members and a teacher before going on, at the age of 14, to abuse a younger half-brother. The youth was released on probation soon after he turned 18.

"I'm just a West Virginia country lawyer running for office," Justice McGraw said. Of the advertisements, he said: "They say our court set a child molester loose in our schools. It's absolutely untrue. I'm embarrassed to go out in public. They've absolutely destroyed me."

Blankenship cheerfully conceded that his real objection was to Justice McGraw's rulings against corporate defendants. "Being the street fighter that I am," he said, he had instructed his aides to find a decision that would enrage the public.

When they returned with an unsigned opinion in the sex abuse case, which Justice McGraw had joined, Mr. Blankenship said he knew he had hit pay dirt. "That killed him," Blankenship said of Justice McGraw, smiling.

Copyright 2009, The New York Times Company

From: Adam Liptak, "Case May Alter Judge Elections Across Country," The New York Times, February 15, 2009, http://www.nytimes.com/2009/02/15/washington/15scotus.html?_r=3&hp, accessed 03/04/09.  Audio clip from: Cecelia Mason and Scott Finn, "Plaintiff speaks out in Caperton v. Massey Supreme Court Case," West Virginia Public Broadcasting, March 2, 2009, http://www.wvpubcast.org/newsarticle.aspx?id=8407, accessed 03/04/09.  Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.

Justices Hear Arguments on Money-Court Nexus
March 4, 2009

WASHINGTON — The Supreme Court appeared split along familiar ideological lines at an argument Tuesday over whether a state court judge should have disqualified himself from an appeal of a $50 million jury verdict against an energy company whose chief executive had spent $3 million to elect him.

The more liberal justices expressed concern about the role money has come to play in judicial elections. The more conservative ones suggested that there was no principled way to decide when campaign spending required disqualification.

And Justice Anthony M. Kennedy emerged, as he so often does in important cases, as the likely swing vote.

The state court judge, Justice Brent D. Benjamin of the West Virginia Supreme Court, twice joined 3-to-2 majorities to throw out the $50 million verdict against his supporter's company, Massey Energy.

In questions to both sides, Justice Kennedy seemed to be searching for a legal standard that would ensure respect for the judiciary without upending the legal systems of the 39 states that elect judges.

"It just doesn't seem to me," he told Theodore B. Olson, a lawyer for the companies that had sought Justice Benjamin's recusal, "that the standard you offer us is specific enough."

Mr. Olson said recusal should be required whenever an objective observer concluded that there was a probability of bias, although Olson used other similar formulations as well. Olson added that courts might take account of several factors in making the determination, including the timing of the contribution, its size and the proportion of total spending it represented.

Justice Ruth Bader Ginsburg added another factor, saying the plaintiffs in the underlying case viewed the energy company executive, Don L. Blankenship, as the "prime culprit" in the conduct that led to the $50 million verdict. Mr. Olson's clients, former competitors of Massey, said the company had used fraud to drive them out of business.

Later, Justice Kennedy told Massey's lawyer, Andrew L. Frey, that an apparently more relaxed standard, appearance of bias, might do the trick. "The appearance standard has much to recommend it," Justice Kennedy said. "Now, of course, it has to be controlled; it has to be precise."

By the end of the argument, Justice Kennedy's position appeared to have hardened. "Our whole system is designed to ensure confidence in our judgments," he said. "And it seems to me litigants have an entitlement to that under the due process clause" of the Constitution.

Justice Antonin Scalia, however, said he did not "favor a constitutional rule that is a sliding scale."

Justice John Paul Stevens responded, "Of course, you can stop at what is obviously improper."

At several points in the argument, Justice Stevens asked unusually cutting questions, sometimes with a hint of exasperation.

"We have never confronted a case as extreme as this before," he said. "This fits the standard that Potter Stewart articulated when he said 'I know it when I see it' " in an obscenity case.

Former Justice Sandra Day O'Connor, who has made judicial independence her signature issue since retiring from the court, was present Tuesday to hear the arguments in the case, Caperton v. A. T. Massey Coal Company, No. 08-22.

The West Virginia Supreme Court recently released a summary of Justice Benjamin's voting in 19 cases involving Massey. It said the justice had voted against the company more than 80 percent of the time.

Justice Scalia explored the nature of the relationship between Mr. Blankenship and Justice Benjamin.

"This contributor never even met the judge, did he?" Justice Scalia asked Mr. Olson, who said the answer was not clear.

Justice Scalia's question appeared to be based on an assertion in a brief Massey filed with the court in January. It said "there is no indication that Blankenship and Justice Benjamin even knew one another, before or after the election."

But Mr. Blankenship said in an interview last month that he had met with Mr. Benjamin before the election. Blankenship said that his spending had been mainly intended to oust the incumbent justice, Warren McGraw, but that he nonetheless wanted to meet the justice's opponent.

"I thought, If I want to beat this guy I ought to know who's running against him," Blankenship said, adding that the meeting did not go well.

"When he got through talking to me, I said, 'Mr. Benjamin, I don't know who you are, but if you go around talking to business people about raising money, you need to do more listening than you do talking'," Mr. Blankenship recalled. "I said, 'I've hardly been able to find out anything about you, but I don't like McGraw.' "

Copyright 2009, The New York Times Company

From: Adam Liptak, "Justices Hear Arguments on Money-Court Nexus," The New York Times, March 4, 2009, http://www.nytimes.com/2009/03/04/washington/04scotus.html, accessed 03/06/09.  Video clips from: ABC News, "W.Va. Supreme Court Scandal," April 11, 2008, 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.









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