Seattle University Law is hosting a conference today on Judicial Independence. The focus is examining the tensions between judicial electioneering and justice “for sale”. Speakers for the conference include Justice Sandra Day O’Connor, distinguished state court judges and legislators.
The first panel is covering the case Caperton v. Massey
In 1998, Harman Mining Company filed a lawsuit against A.T. Massey Coal Company alleging that Massey fraudulently canceled a coal supply contract with Harman Mining. In August 2002, a jury found in favor of Caperton and awarded $50 million in damages.
While the case was awaiting hearing in the West Virginia Supreme Court of Appeals, A.T. Massey’s Chief Executive Officer, became involved in the election campaign pitting incumbent Supreme Court Justice Warren McGraw against Charleston lawyer Brent Benjamin. Blankenship created a non-profit corporation called “And for the Sake of the Kids” through which he contributed over $3 million dollars in Benjamin’s behalf. This amounted to more than the total amount spent by all other Benjamin supporters and Benjamin’s own campaign committee. Much of the money went to an advertising campaign aimed at questioning McGraw’s impartiality. McGraw further damaged his campaign during a speech at the 2004 United Mine Workers of America’s Labor Day rally in Racine, West Virginia in which he alleged that Republican operatives were following him “looking for ugly”. The speech, sometimes referred to as the “Scream at Racine” or the “Scream from Racine”, was featured in several campaign advertisements run by the West Virginia Republican Party and may have played a large role in McGraw’s defeat in November 2004.
In 2007, when the case came before the West Virginia Supreme Court, Caperton petitioned for Justice Benjamin to recuse himself because of Blankenship’s contributions during the campaign. Benjamin declined and was ultimately part of the 3 to 2 majority that overturned the $50 million verdict.
Blankenship also petitioned for Justice Larry Starcher’s recusal due to a perceived public feud in which Starcher allegedly called Blankenship “stupid” and “a clown,” and accused Blankenship of buying a seat on the West Virginia Supreme Court. Starcher also refused to withdraw from the case, prompting a lawsuit from Massey Energy over the West Virginia’s Supreme Court’s recusal procedures. Caperton then asked for and was granted a rehearing of the case.
Around the same time, Justice Spike Maynard recused himself when photos of him vacationing with Blankenship in the French Riviera while the case was pending appeared in the media. Although Maynard was heavily favored to win reelection in 2008, the photos were featured heavily in the campaign and Maynard was defeated in the primary.
In April 2008, the West Virginia Supreme Court again ruled in favor of Massey with Benjamin again joining the 3 to 2 majority.
Caperton filed a petition with the United States Supreme Court arguing that Blankenship’s 2004 campaign expenditures on behalf of Benjamin’s election raised an appearance of partiality on Benjamin’s part, which required him to disqualify and, in the absence of that, denied Harman Mining due process of law.
In June 2009, the United States Supreme Court found for Caperton and Harmon Mining, remanding the case back to the West Virginia Supreme Court. Writing for the majority, Justice Kennedy called the appearance of conflict of interest so “extreme” that Benjamin’s failure to recuse himself constituted a threat to the plaintiff’s Constitutional right to due process under the Fourteenth Amendment. The Court also noted that “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. We conclude that there is a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”
For more about the case and most of the case documents check out SCOTUS WIKI coverage of Caperton. Now on to the speakers and a few key points from them:
Bert Brandenberg is the ED of the Justice at Stake Campaign. Justice at Stake is a nonpartisan campaign working to keep our courts fair and impartial. Justice at Stake Campaign partners educate the public and work for reforms to keep politics and special interests out of the courtroom—so judges can do their job protecting our Constitution, our rights and the rule of law. Here are a a few of the more interesting points from his Intro:
Andrew Siegel gave a great simple over view of the decision and the dissent.
Richard Hasen isthe William H. Hannon Distinguished Professor of Law at Loyola Law School in Los Angeles. Hasen also writes the Election law blog.
- Different fist amendment standards may apply to Judicial elections then to elections for political office.
- The vagueness in Caperton may prevent further conflicts as parties will avoid getting close to the excluded conduct… Note Rowe: I am very leery of this argument.
Kathleen Sullivan is a Professor of Law and Former Dean of Stanford law, she is also one of the primer scholars on constitutional law.
- The most important sentance in the case is “There is a serious risk of actual bias when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.” Emphasis added
- Caperton was a no brainer case, (Siegle concurred with this settlement, although it was a 5-4 provision)
- There are three constitutional interests that can over rule first amendment with regards to elcetions: rule of law, separation of powers, due process.
- Do we want ex-ante “before the event” or ex post “after the event” solutions here?
Sullivan argued for ex-ante regulation as both a way to ensure that judges can perform their jobs and to help limit the problems with judicial campaigns.
Q&A:
Q: should the standard for recusal be actual bias or a perception of bias?
Q:Directed at Bret Brandenberg: Should we even have elections?
A: Justice at stake is agnostic on this issue. We are for reform in any type and eleminaing elections is one type of reform.
Q: Is this case different in retention elections (elections where there is no candidate opposing the judge)?
A from Hansen: The issue of spending abuse is possible in retention election but less likely. less money is generaly spent on retention elections. Note Rowe: it is also tougher to get a judge elected for a specific cause if retention is the only question on the ballot.
comment from audience: Caperton motions are very unlikely because they could alienate the judge or other judges that the judge works with
Sullivan: the next generation does not read news papers, and the decentralized nature of the internet could help fight mass media bias
When asked about how to focus the elections debates on real issues Siegel responded: The sound bite culture does not facilitate the right kind of debate, and we are not even sure what the right kind of debate even is… (Note: Rowe this is, true but depressing)
This was a great panel over all. It was videotaped I will see about posting a link when it is online. Copyright note: the summary of Caperton was remixed from wikipedia it is available under the Creative Commons Attribution-ShareAlike License.
