In a West Virginia case (Caperton v. Massey), now before the U.S. Supreme Court, 27 former chief justices and justices of 19 state Supreme Courts have urged the High Court to rule that a judge must recuse himself or herself from a case in which a party has made a substantial financial contribution to the judge’s election. The former justices explain in an amici brief filed in the Caperton case:
Substantial financial support of a judicial candidate — whether contributions to the judge’s campaign committee or independent expenditures — can influence a judge’s future decisions, both consciously and unconsciously. Amici believe that the only way to preserve a litigant’s due process right to adjudication before an impartial judge is to require that a judge recuse from a case not only when the judge consciously perceives the judge’s own partiality, but also when there exists a reasonable appearance of partiality or impropriety.
Texans for Public Justice (TPJ), an Austin-based government watchdog group, joined in a separate amici brief filed with the Supreme Court on January 6th by the Justice at Stake Campaign in Washington, D.C. Craig McDonald, TPJ’s director, says the Justice at Stake Campaign is a loose federation of organizations working for judicial selection reforms.
The High Court will hear arguments on March 3rd in the Caperton challenge, which arises out of the refusal of acting Chief Justice Brent Benjamin of the West Virginia Supreme Court of Appeals to step aside from a multimillion-dollar appeal involving his major campaign contributor. Don Blankenship, chairman and chief executive officer of Massey Energy Co., appealed a $50 million jury award for tortious interference with existing contractual relations, fraudulent misrepresentation and fraudulent concealment in a suit against his company by Hugh M. Caperton of Harman Mining. With post-trial interest, the award grew to $76 million.
Between the verdict and Blankenship’s filing of the appeal in 2006, there was a hotly-contested battle for a seat on the state high court between incumbent Justice Warren McGraw and Brent Benjamin, who was a lawyer in private practice at the time. Blankenship reportedly made campaign expenditures of $3 million in that race, the bulk of which went to a 527 organization, “And for the Sake of the Kids,” working to defeat the incumbent, about $517,000 of which was in direct support of Benjamin. The rest was used as these 527 groups always do. The $3 million total reportedly was $1 million more than the total amount spent by all of the candidate’s other campaign supporters and three times the amount spent by Benjamin’s own campaign committee. After the election, now Chief Justice Benjamin cast the deciding vote in a 3-2 ruling in favor of Blankenship’s company.
In their amici brief, authored by Charles Wiggins of Wiggins & Masters in Bainbridge Island, Wash., the former justices argue that due process does not require a judge to recuse from any case in which a party gave financial support to the judge’s election. But they draw a distinction when the support is very large and they contend:
Rather, amici submit that due process is only triggered by substantial financial support for a judge’s election. Amici do not believe it is necessary for the court to define specifically what constitutes substantial financial support. Suffice it to say that the massive financial support provided by respondent Blankenship to the election of Justice Benjamin triggers due process concerns under any reasonable definition of substantial financial support.
All 27 former justices, according to Wiggins, believe that Chief Justice Benjamin’s participation in the coal company case appeal created an appearance of impropriety, and they would have recused themselves in similar circumstances. I believe the justices are correct and hopefully the justices on the High Court will feel the same way.
Source: National Law Journal
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