I’d Like to Hire You Counselor, But First Tell Me What You Contributed to the Judge in the Last Election?

by Lee Gesmer on March 14, 2009

“We will sell to no man … Justice” Magna Carta (1297)

“If you think aficionados of a living Constitution want to bring you flexibility, think again. You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That’s flexibility.” Supreme Court Justice Antonin Scalia

“In civilized life, law floats in a sea of ethics” Former Supreme Court Justice Earl Warren

…. “nor shall any State deprive any person of life, liberty, or property, without due process of law” … Fourteenth Amendment to the United States Constitution

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Should the Supreme Court extend the Due Process Clause of the Fourteenth Amendment to create a constitutional right to a fair tribunal in the state courts? That’s the issue facing the Court in Caperton v. A.T. Massey Coal Co., which was argued before the Court last week.

The facts are straightforward – in fact, John Grisham adapted them for his novel The Appeal.

Justice Brent D. Benjamin, Supreme Court West Virginia

Caperton won a $50 million judgment against the A.T. Massey Coal Co. in state court in West Virginia in 2002. Unhappy with this outcome, the Massey CEO, Don Blankenship, authorized an appeal to the West Virginia Supreme Court of Appeals (the highest state court in West Virginia). But Blankenship believed that one of the judges on that court was anti-business, and he realized that there would be a judicial election in time to unseat that judge before the appeal was heard. Blankenship helped raise several million dollars in support of the candidate he endorsed, Brent Benjamin. That’s a lot of money for a judicial election in West Virginia, and no surprise, Benjamin won. And, now-“Justice” Benjamin was the “swing vote” in a 3-2 decision that ruled in favor of Massey Coal, overturning the $50 million judgment. During the proceedings Caperton repeatedly asked Justice Benjamin to withdraw from the case based on conflict of interest (or, as lawyers prefer to say, “recuse himself”), but Benjamin, who had sole say on this issue, refused.

Caperton appealed to the federal courts, claiming that he had been denied due process under the 14th Amendment to the U.S. Constitution when Justice Benjamin refused to withdraw from the panel deciding the case. In response, Massey argued (as it had below) that campaign contributions alone were not enough where the contributions had gone to Benjamin’s campaign fund (not to Benjamin personally), and there was no evidence that Justice Benjamin had any “actual” bias.

This is a difficult case for the Court, because the facts are so one-sided in favor of Capterton. Would you like a judge sitting on your case, knowing that his election was probably due to the other side’s overwhelming financial support? This is a classic example of a situation where “hard cases make bad law.” Yet, if the Court accepts Capterton’s argument it may open the floodgates to challenges to judges in state courts throughout the country. As in so many constitutional cases decided by the Court, the question is where to draw the line for the guidance of the lower courts, and how to avoid opening a Pandora’s box of litigation the issue.

It’s easy to think of situations that might face the courts if the Supreme Court rules in favor of Caperton, and several of the Supreme Court judges (Roberts and Scalia), did just this during oral argument. What if the contribution had been made by members of a trade group that had an interest in ongoing litigation? How few members would the trade group have to have before constitutional problems arose? How much contribution money is too much?

More fundamentally, what basis is there to conclude that the Constitution authorizes the federal courts to sit in judgment on judicial disqualification proceedings in the state courts? Does the Constitution empower the federal courts to guard against abuses of this nature by state court judges? What judicial “standard” (or test) should the court create to be applied in future cases? Isn’t this something the states are better left to regulate themselves? Won’t the political process itself eliminate judges who can be bought? After all, the case involving Judge Benjamin has received massive amounts of adverse publicity, and by now, Justice Benjamin may regret his decision not to have recused himself from this case.

The transcript of oral argument (linked below), is quite entertaining. This a “hot bench,” and Ted Olsen, arguing for Capterton, barely got one sentence into his argument before being challenged by Justice Scalia who (with some help from Chief Justice Roberts) had him under attack throughout his argument. It’s not surprising that these two “conservative” justices were hostile to the new due process rights which Mr. Olsen was advocating. The outcome of this case will be of great interest, regardless of the ruling.

Link to the transcript of oral argument in Caperton v. A.T. Massey Coal Co., March 3, 2009

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