Say, Judge. Can I Buy Me One of You?

This week the NY Times featured yet another editorial (at least the second since September) calling on the Supreme Court to grant certiorari in Caperton v. A.T. Massey Coal (08-22), a case raising important issues of judicial impartiality and due process of law. The case reportedly has been considered by the Justices at four conferences so far this Term without a decision being made as to whether the Court will review the case, and will likely be considered again at this morning’s conference.

The case concerns an elected judge on the West Virginia Supreme Court, Brent Benjamin, who refused to recuse himself from hearing an appeal seeking to overturn a $50 million verdict against Massey Energy and a number of co-defendants, even though Massey’s CEO, Don Blankenship, spent $3 million in support of Benjamin’s election. The plaintiffs who had won the original lawsuit have now asked the U.S. Supreme Court to hear the case and determine whether Justice Benjamin’s refusal to recuse himself violated the Due Process Clause of the Fourteenth Amendment.

In their petition to the Court, the plaintiffs/petitioners allege that Don Blankenship campaigned vigorously for Brent Benjamin’s election to the West Virginia Supreme Court at the same time that his company’s appeal was pending, donating a total of $2.5 million to the campaign through an organization called “And For the Sake of the Kids,” as well as paying for another half million dollars’ worth of highly negative campaign advertisements against Benjamin’s opponent, the incumbent justice. Shortly after the election, when Massey’s case was heard by the state supreme court, the newly-elected Justice Brent Benjamin refused to recuse himself, instead casting a deciding vote in a 3-2 ruling to overturn the $50 million verdict against Massey.

That could have been the end of the story. However, according to the cert. petition, photos emerged shortly after the decision showing Don Blankenship on vacation in Monte Carlo with the West Virginia Supreme Court’s Chief Justice, Elliot E. Maynard, who had also voted with the majority in favor of Massey. The case was then scheduled to be re-heard, this time with both Maynard and another justice (who had been loudly critical of the relationship between Blankenship and Benjamin) recusing themselves. For the second time, however, Justice Benjamin refused to recuse himself, and once again cast a deciding vote in another 3-2 ruling to overturn the $50 million verdict against Massey. According to the petitioners, the two Justices who dissented wrote that they were “unable to stand silent” regarding the failure of Benjamin to step aside, stating:

It is now clear, especially from the last motion for disqualification filed in this case…that there are now genuine due process implications arising under federal law, and therefore under our law, which have not been addressed.

The petitioners have asked the Supreme Court to hear the case and “to clarify the circumstances in which due process requires the recusal of an elected judge who has benefited from a litigant’s substantial campaign expenditures.” CAC and its predecessor organization, Community Rights Counsel, have worked tirelessly to expose the ways in which special, private interests seek to buy influence with the judiciary, in particular through privately-sponsored junkets for federal judges. CAC will continue to watch this case carefully to see if the Court grants certiorari.

[Update 11.14.08 2:30] The Court has granted cert. in this case. Today’s orders are available here, courtesy of SCOTUSBlog.

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