Nov. 18, 2008
NEWS ANALYSIS: Supremes to Decide If Justice For Sale in West Virginia
By Tony Rutherford
Huntingtonnews.net Reporter
Washington, DC. (HNN) – Enormous campaign contributions on behalf of a specific candidate allows that person to purchase unmitigated amounts of advertising, whether through the broadcast media or others (print, on line) and literature. When Massey Coal lost a $50 million dollar decision in Boone County, its CEO Don Blankenship vowed to appeal to West Virginia’s ONLY appellate court --- The West Virginia Supreme Court of Appeals.
Fortunately for the U.S. Supreme Court petitioners, they selected a law firm with a much experienced attorney in presenting and arguing cases before the nine justices --- Theodore Olson, former Solicitor General of the U.S. under the Bush Administration AND the attorney who successfully represented George W. Bush and Dick Cheney in Bush v. Gore, which resolved the election in the now President’s favor.
Since the Solicitor General, a subordinate to the Attorney General in the Department of Justice, conducts litigation on behalf of the United States in the Supreme Court, Olson had justice’s scales tipping ever so slightly in his favor --- as Supreme Court watchers know, usually, a suggestion from the Solicitor General means the nine justices will accommodate him by granting cert.
So, one might conceive that the $3 million campaign funding by Massey’s Blankenship to win election of West Supreme Court Justice Brent Benjamin has been trumped by the opposition hiring an attorney well known and respected by the nine justices. Still, it took numerous friend of the court briefs and editorials (including the New York Times) to persuade the U.S. Supreme Court to hear the distasteful case where the refusal of a judge to step aside casts more than an appearance of impropriety when he later casts the deciding vote which nullifies a $50 million judgment against Blankenship’s corporation.
Specifically, the U.S. Supreme Court has agreed to hear the case which would answer the following question of constitutional law:
Justice Brent Benjamin of the Supreme Court of Appeals of West Virginia refused to recuse himself from the appeal of the $50 million jury verdict in this case, even though the CEO of the lead defendant spent $3 million supporting his campaign for a seat on the court --- more than 60% of the TOTAL amount spent to support Justice Benjamin’s campaign --- while preparing to appeal the verdict against his company. After winning the election to the court, Justice Benjamin cast the deciding vote in the court’s 3-2 decision overturning the verdict. The question presented is whether Justice Benjamin’s failure to recuse himself from participation in his principal financial supporter’s case violated the Due Process Clause of the Fourteenth Amendment.
The Petition explains that Benjamin refused to step down despite “photographs were made public showing the chief justice of the West Virginia Supreme Court of Appeals vacationing with Mr. Blankenship on the French Riviera while Massey’s appeal was pending. When the chief justice and another justice subsequently recused themselves ( Larry Starcher, Spike Maynard) for purposes of a rehearing, Justice Benjamin now became the “chief” judge and appointed two replacement judges. Again, Benjamin would cast the deciding vote in a 3-2 decision overturning the verdict against Massey.
Olson argued in one of the briefs, “The improper appearance created by money in judicial elections is one of the most important issues facing our judicial system today. A line needs to be drawn somewhere to prevent a judge from hearing cases involving a person who has made massive campaign contributions to benefit the judge. We certainly believe that, in this case, acting Chief Justice Benjamin cross the line.”
A New York Times editorial stated: “Judicial neutrality and the appearance of neutrality are basic elements of due process. Not every contribution to a judicial campaign triggers due process concerns significant enough to require recusal, but Mr. Blankenship’s outsized campaign expenditures surely did. Situations like the Massey Energy case create an unmistakable impression that justice is for sale.”
While heavy hitters and superstar Supreme Court attorney Olson argued for acceptance, Benjamin has vigorously defended his decision: “"It has long been recognized that there is 'a presumption of honesty and integrity in those serving as adjudicators.' Due process therefore requires recusal only in those rare cases wherein a judge or justice has a 'direct, personal, substantial (or) pecuniary interest' in the outcome of the case."
A professor from American University’s law school --- Amanda Frost, who is considered a judicial recusal expert --- opined to WV Public Radio that “39 states elect their judges, people obviously contribute to campaigns. The court isn’t about to strike that down as a violation of due process. Then the question is, if giving some money is O.K., then why is giving too much money not O.K.?”
However, Frost stated an ongoing political contribution problem to judge’s campaigns --- most contributions are going to come from people who have cases before these judges.
For further reading of the facts and briefs in this case, click:
http://www.brennancenter.org/content/resource/caperton_v_massey
or
http://www.brennancenter.org/content/resource/selected_press_massey
Now that the Supreme Court has agreed to hear the case, the parties will file additional briefs on the case merits. The Oral Arguments will likely come in the Spring.
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NEWS ANALYSIS: Supremes to Decide If Justice For Sale in West Virginia
By Tony Rutherford
Huntingtonnews.net Reporter
Washington, DC. (HNN) – Enormous campaign contributions on behalf of a specific candidate allows that person to purchase unmitigated amounts of advertising, whether through the broadcast media or others (print, on line) and literature. When Massey Coal lost a $50 million dollar decision in Boone County, its CEO Don Blankenship vowed to appeal to West Virginia’s ONLY appellate court --- The West Virginia Supreme Court of Appeals.
Fortunately for the U.S. Supreme Court petitioners, they selected a law firm with a much experienced attorney in presenting and arguing cases before the nine justices --- Theodore Olson, former Solicitor General of the U.S. under the Bush Administration AND the attorney who successfully represented George W. Bush and Dick Cheney in Bush v. Gore, which resolved the election in the now President’s favor.
Since the Solicitor General, a subordinate to the Attorney General in the Department of Justice, conducts litigation on behalf of the United States in the Supreme Court, Olson had justice’s scales tipping ever so slightly in his favor --- as Supreme Court watchers know, usually, a suggestion from the Solicitor General means the nine justices will accommodate him by granting cert.
So, one might conceive that the $3 million campaign funding by Massey’s Blankenship to win election of West Supreme Court Justice Brent Benjamin has been trumped by the opposition hiring an attorney well known and respected by the nine justices. Still, it took numerous friend of the court briefs and editorials (including the New York Times) to persuade the U.S. Supreme Court to hear the distasteful case where the refusal of a judge to step aside casts more than an appearance of impropriety when he later casts the deciding vote which nullifies a $50 million judgment against Blankenship’s corporation.
Specifically, the U.S. Supreme Court has agreed to hear the case which would answer the following question of constitutional law:
Justice Brent Benjamin of the Supreme Court of Appeals of West Virginia refused to recuse himself from the appeal of the $50 million jury verdict in this case, even though the CEO of the lead defendant spent $3 million supporting his campaign for a seat on the court --- more than 60% of the TOTAL amount spent to support Justice Benjamin’s campaign --- while preparing to appeal the verdict against his company. After winning the election to the court, Justice Benjamin cast the deciding vote in the court’s 3-2 decision overturning the verdict. The question presented is whether Justice Benjamin’s failure to recuse himself from participation in his principal financial supporter’s case violated the Due Process Clause of the Fourteenth Amendment.
The Petition explains that Benjamin refused to step down despite “photographs were made public showing the chief justice of the West Virginia Supreme Court of Appeals vacationing with Mr. Blankenship on the French Riviera while Massey’s appeal was pending. When the chief justice and another justice subsequently recused themselves ( Larry Starcher, Spike Maynard) for purposes of a rehearing, Justice Benjamin now became the “chief” judge and appointed two replacement judges. Again, Benjamin would cast the deciding vote in a 3-2 decision overturning the verdict against Massey.
Olson argued in one of the briefs, “The improper appearance created by money in judicial elections is one of the most important issues facing our judicial system today. A line needs to be drawn somewhere to prevent a judge from hearing cases involving a person who has made massive campaign contributions to benefit the judge. We certainly believe that, in this case, acting Chief Justice Benjamin cross the line.”
A New York Times editorial stated: “Judicial neutrality and the appearance of neutrality are basic elements of due process. Not every contribution to a judicial campaign triggers due process concerns significant enough to require recusal, but Mr. Blankenship’s outsized campaign expenditures surely did. Situations like the Massey Energy case create an unmistakable impression that justice is for sale.”
While heavy hitters and superstar Supreme Court attorney Olson argued for acceptance, Benjamin has vigorously defended his decision: “"It has long been recognized that there is 'a presumption of honesty and integrity in those serving as adjudicators.' Due process therefore requires recusal only in those rare cases wherein a judge or justice has a 'direct, personal, substantial (or) pecuniary interest' in the outcome of the case."
A professor from American University’s law school --- Amanda Frost, who is considered a judicial recusal expert --- opined to WV Public Radio that “39 states elect their judges, people obviously contribute to campaigns. The court isn’t about to strike that down as a violation of due process. Then the question is, if giving some money is O.K., then why is giving too much money not O.K.?”
However, Frost stated an ongoing political contribution problem to judge’s campaigns --- most contributions are going to come from people who have cases before these judges.
For further reading of the facts and briefs in this case, click:
http://www.brennancenter.org/content/resource/caperton_v_massey
or
http://www.brennancenter.org/content/resource/selected_press_massey
Now that the Supreme Court has agreed to hear the case, the parties will file additional briefs on the case merits. The Oral Arguments will likely come in the Spring.
Share This Story:
Make HNN Your Homepage (IE Users Only)
