Massey Energy case upset

Jun 09, 2009 (Pittsburgh Post-Gazette - McClatchy-Tribune Information Services via COMTEX) -- MEE | Quote | Chart | News | PowerRating -- A sharply divided U.S. Supreme Court yesterday ruled that a West Virginia State Supreme Court justice should not have participated in a case involving his largest campaign contributor.

By a 5-4 vote, the court sent the case involving coal company owner Hugh Caperton and Massey Energy back to the West Virginia Supreme Court, which overturned a 2002 lower court verdict ordering Massey to pay Mr. Caperton $50 million in damages.

Casting the deciding vote in the state court's 3-2 decision was Chief Justice Brent Benjamin, who received $3 million in campaign contributions from Massey CEO Don Blankenship.

The U.S. Supreme Court said the contributions "had a significant and disproportionate influence in placing the judge on the case" and created "a serious, objective risk of actual bias that required Justice Benjamin's recusal."

"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," wrote Justice Anthony Kennedy, who authored the majority opinion.

Mr. Caperton and his business, Harman Development, were represented by Pittsburgh attorneys Bruce Stanley and David Fawcett. They echoed the comments of reform groups concerned by the alarming growth in judicial election campaign spending and the potential threats the contributions pose to the integrity of the judicial system.

"It speaks an important message about the potentially corrupting influence of big money in judicial campaigns," said Mr. Stanley, of Reed Smith.

Said Mr. Fawcett, of Buchanan Ingersoll & Rooney, "If the court had allowed this case to stand, then people with money would have been granted a license to contribute vast sums of money to elect judges to effect results in specific cases."

Mr. Caperton's case took 11 years to reach the nation's highest court. Over that time, former justices, the American Bar Association and other professional organizations, businesses and court reformers have become concerned that the growing sums being spent on judicial elections are undermining the integrity of court systems.

"The Supreme Court has reaffirmed the fundamental principle that money should not influence the courts and that justice should not be for sale," said James Sample of the Brennan Center for Justice at New York University's School of Law.

Justice Kennedy was joined by Justices John Paul Stevens, David Souter, Ruth Bader Ginsberg and Stephen Breyer. Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel Alito dissented, with Chief Justice Roberts and Justice Scalia writing separate opinions.

"The standard the majority articulates -- 'the probability of bias' -- fails to provide clear, workable guidance for future cases," Chief Justice Roberts wrote. "It is also far from clear that Blankenship's expenditures affected the outcome of this election."

He believes the decision will prompt other parties to seek to disqualify other judges on similar grounds, clogging the courts and diminishing public confidence in them. University of Pittsburgh law professor Arthur Hellman shares those concerns.

"There are many reasons to be concerned about what this decision will lead to," he said.

Justice Kennedy discounted those fears in his opinion, saying recusal standards that apply to state courts can be more demanding than requirements of the constitutional due process rights Mr. Caperton invoked. West Virginia's Code of Judicial Conduct requests a judge to recuse himself when his impartiality "might reasonably be questioned," he wrote.

Lynn A. Marks of Pennsylvanians for Modern Courts said the court recognized the perception problems campaign contributions can cause but is also worried about the prospect of attorneys filing so-called "Caperton motions."

"The best solution is to get judges out of the fund-raising business altogether and end the poisonous campaign contribution game by changing to merit selection," Ms. Marks said.

The court sent the case back to the West Virginia Supreme Court "for further proceedings not inconsistent with this opinion."

What that means is not clear to Mr. Caperton's attorneys, except that however the state court handles the matter, "It is clear [Justice Benjamin] cannot touch this case in any manner," Mr. Fawcett said.

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