Lots of questions follow Supreme Court's Benjamin decision: Majority failed to set contribution limits, guidelines regarding bias, dissenting opinion states

Jun 09, 2009 (Charleston Daily Mail - McClatchy-Tribune Information Services via COMTEX) -- MEE | Quote | Chart | News | PowerRating -- CHARLESTON, W.Va. -- Some observers were reminded of the U.S. Supreme Court's vague "I know it when I see it" approach when the high court ruled Monday that West Virginia Supreme Court Justice Brent Benjamin should have disqualified himself from a high-profile case involving Massey Energy.

By a 5-4 vote, the high court on Monday found that elected judges must step aside from cases when large campaign expenditures by interested parties create the appearance of bias.

Justices reviewed a 2006 civil appeal, Caperton v. Massey, in which Benjamin twice joined 3-to-2 majorities to shoot down a $50 million verdict against Massey. The case generated a storm of controversy, even inspiring a John Grisham novel, due to what many perceived as a conflict of interest on the part of Benjamin, who refused to remove himself from the case.

But the high court's decision lacks concreteness and any clear principles that can be applied by other court systems, said Blair Gardner, an attorney with the Charleston law firm of Jackson Kelly. The court did not say for how big a campaign contribution a justice should remove himself from a case nor did it set any specific guidelines or restrictions regarding bias.

Critics of the ruling compare it to another U.S. Supreme Court decision that involved ambiguity.

"I know it when I see it" is a phrase made famous by the U.S. Supreme Court in 1964. In a concurring opinion, Justice

Potter Stewart wrote, "I know it when I see it" when trying to define obscenity.

The expression was praised as an example of candor but also has been criticized because it lacks any clearly defined parameters.

Now 45 years later, that same logic issued by the highest court in the country could lead to negative ramifications in the legal system, including a surge in recusal requests and general confusion surrounding judicial bias, Gardner said.

There is no clear understanding of when or under what circumstances a justice needs to disqualify himself from a case, he noted.

"The court's opinion will prove very difficult to apply," said Gardner, who joined Jackson Kelly in 2001 after serving as vice president of external affairs and assistant general counsel for Arch Coal.

Justice Anthony Kennedy in the majority opinion stated, "Not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge's recusal, but this is an exceptional case."

Massey Chairman Don Blankenship spent $3 million on a campaign to oust Benjamin's opponent, Warren McGraw, in 2004, although he contributed only $1,000 to Benjamin's actual campaign committee. Benjamin wound up beating McGraw by 53 percent to 47 percent.

Kennedy referred to the Benjamin-Caperton-Massey saga as an "extreme case" and wrote, "His (Blankenship's) contributions eclipsed the total amount spent by all other Benjamin supporters and exceeded by 300 percent the amount spent by Benjamin's campaign committee."

Kennedy was joined by justices Stephen Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens in the majority opinion.

Gardner said he found the dissenting opinion, by Chief Justice John Roberts, more compelling.

Roberts raised 40 questions, which are unanswered by the majority's ruling and left for the lower courts to wrestle with.

Some of his questions include, "How much money is too much money?" "Must a judge recuse from cases involving, say, abortion rights if he has received disproportionate support from individuals who feels strongly about either side of the issue?" and "What procedures must be followed to challenge a state judge's failure to recuse?"

Roberts said the majority's decision will lead to an increase in allegations that judges are biased, however groundless those charges may be.

Justices Samuel Alito, Antonin Scalia and Clarence Thomas joined Roberts in his dissent.

"The chief justice is probably correct," Gardner said. "The dissenters really nailed it. It will provide many issues for litigants to use on both sides -- plaintiff and defendant.

"I always enjoy reading the opinions Justice Kennedy writes, as he's always thoughtful. It's clear the context of this case really troubled him. The principal responsibility of the U.S. Supreme Court is to define the principles applied by the lower courts. After reading the opinion, I'm having a difficult time knowing what those principles will be."

Kanawha County Commission President Kent Carper, a Democrat and 30-year attorney, agreed that the majority opinion leaves questions unanswered.

"Everyone's looking for a perfect world where we don't elect judges and pluck them from someplace in nirvana," Carper said. "They're perfect folks and we're looking for a perfect system to second guess-whether a judge should stay on a case or not. In law, you usually have a fine line. Not in this decision."

Carper, who said he supported McGraw and did not vote for Benjamin, said he believes the ruling is an unfair swipe at West Virginia's chief justice.

"It does a disservice to the judges we have who do an excellent job day in and day out from the lowest court to the highest court," he said. "From what I've seen of Justice Benjamin, he does an excellent job. He's an excellent jurist."

Carper called the court's decision nothing more than "a nice academic piece of work."

Gov. Joe Manchin did not state whether he supported or disapproved of the ruling, but said it would help West Virginia make adjustments to its judicial system. Manchin has stated his desire for judicial reform in the state and wants to study nonpartisan election of judges. He has established a commission to look at the matter.

West Virginia is one of 39 states that elect some or all of their judges.

"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 Independent Commission on Judicial Reform may recommend," Manchin said in a prepared statement Monday.

"The commission's study and any subsequent changes to the organization of our court system are important to ensure that our citizens have confidence in their judicial system in West Virginia."

The chairmen of both major political parties in West Virginia also weighed in.

Nick Casey, chairman of the West Virginia Democratic Party and an attorney for 32 years, said while the court didn't give any real guidelines or instructions to the lower courts, cases with the appearance of bias should be easily identifiable.

"The case was clearly extraordinary, in terms of sheer dollars," Casey said. "Does this change the rule book? They seemed to indicate it really doesn't because of the sheer size and uniqueness of this one case.

"They didn't say that the current system had any problems. They didn't criticize Benjamin, our campaign limits or the way we select judges."

Doug McKinney, chairman of the state GOP, however, bashed the ruling.

"The Supreme Court has established a new recusal standard based on perception rather than on actual bias," he 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."

The court's decision stopped short of criticizing Benjamin and his actions on the bench.

Kennedy wrote, "We do not question his subjective findings of impartiality and propriety. Nor do we determine whether there was actual bias."

In the dissenting opinion, Roberts indicated it wasn't even clear if Blankenship's money affected the outcome of the election.

"I would give the voters of West Virginia more credit than that," he said.

In a prepared statement, Benjamin said Monday following the court's decision, "I am pleased that the Supreme Court has not questioned my ethics, my integrity, or my personal impartiality or propriety. As a personal matter, that is very important to me, and I appreciate the fact that the justices made a specific point of clarifying that issue."

Benjamin also acknowledged 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 Caperton-Massey case heads back to the West Virginia Supreme Court, and it is likely Benjamin now will recuse himself from hearing it.

Massey was involved in a decade-old business dispute with Hugh Caperton, owner of rival Harman Mining. Caperton accused Massey of unlawfully interfering with his business.

A jury agreed, and in 2002 awarded Harman Mining $50 million in compensatory and punitive damages. Massey waited four years to appeal.

Contact writer Jake Stump at jakestump@dailymail.com or 304-348-4842.

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