Update: Great news! In a 5-4 decision released today, the SCOTUS reversed the West Virginia Supreme Court. Justice Kennedy authored the opinion and was joined by Justices Souter, Stevens, Ginsberg and Breyer. Chief Justice Roberts and Justice Scalia authored dissents.
Original Post: Any fan of Damages would undoubtedly be intrigued with Caperton v. A.T. Massey Coal Company, Inc. – a case before the US Supreme Court. Robert Rothman, the chair of the ABA’s section on Litigation, has a good article examining this case within the larger context of campaign contributions for the election of state court judges.
Here’s the broader context first.
With a high-profile case now pending before the U.S. Supreme Court, we may soon have guidance on whether, and under what circumstances, a campaign contribution to a successful judicial candidate will cause disqualification in cases involving the contributors. The Court’s grant of certiorari last November in Caperton v. A.T. Massey Coal Company, Inc., comes amid increasing focus on the impact of skyrocketing judicial campaign fundraising and independent campaign committee expenditures on the public’s perception of judicial fairness and impartiality.
The American Bar Association’s Standing Committee on Judicial Independence recently issued a draft of a report of the Judicial Disqualification Project, in which it observes that “In the past five years, disqualification has emerged as a major part of both the problem and the solution in the ongoing national effort to preserve and promote an independent judiciary.” In particular, the report notes that in several highly publicized cases, judges have been severely criticized for refusing to disqualify themselves from cases “where the judge had an undisclosed financial interest in, received sizable campaign contributions from, or had a personal relationship with one of the parties.”
Why the increasing concern? As the ABA report notes, “With interest groups pouring money into judicial elections, it is unsurprising that the public thinks that judges are influenced by the campaign contributions they receive.” Surveys in Texas, Ohio, and Pennsylvania found that 80 to 90 percent of respondents believed judicial decisions are influenced by campaign contributions—and these surveys were taken well before the current boom in contributions.
And the facts of this case:
The dispute involves two coal companies, Harman Mining Corporation and A.T. Massey Coal Company. Harman sued Massey in the Circuit Court of Boone County, West Virginia, alleging unlawful interference with Harman’s business and fraud in connection with negotiations to purchase the Harman Mine. In August 2002, the jury returned a verdict in favor of Harman for approximately $50 million in compensatory and punitive damages.
For a variety of reasons, Massey’s petition for discretionary review in the West Virginia Supreme Court was not filed until October 2006. During the interim, there was a contested election for a seat on the West Virginia Supreme Court, which is the sole appellate court in a state that does not allow appeals as a matter of right. In that election, Brent Benjamin defeated the incumbent, Warren McGraw. During the campaign, the president, chief executive officer, and chairman of Massey, Don L. Blankenship, contributed $2.46 million to an organization known as And for the Sake of the Kids, an independent group that actively opposed the reelection of Justice McGraw. Blankenship also spent more than $500,000 supporting the Benjamin campaign through payments to media outlets for advertising.
Even before Massey filed its petition in the West Virginia Supreme Court, Harman filed a motion asking Justice Benjamin to recuse himself. Justice Benjamin declined, finding there was no objective evidence of bias and that the motion was based on “surmise, conjecture, and political rhetoric.” Thereafter, he voted to grant review and, subsequently, with the 3-2 majority, to reverse the judgment against Massey.
While a motion for reconsideration was pending, photographs became public showing another member of the majority, Chief Justice Elliott Maynard, with Blankenship on the French Riviera during the pendency of the appeal. The chief justice and one other justice, who had been in the minority and publicly critical of Blankenship, then recused themselves from further participation in the case. Justice Benjamin, however, denied a renewed recusal motion from Harman and, as acting chief justice, appointed two new members of the court to fill in for the recused justices. He then voted to reconsider the appeal and, on reconsideration, again sided with the majority in a 3-2 decision reversing the judgment against Massey.
As we have seen in the Blagojevich affair, appointments can be as tainted as elections and the money that powers them. Yet, it will be interesting to see how the SCOTUS manages the competing concerns of free speech, free and fair elections and judicial independence (both real and perceived).