Would you know bias when you see it? A majority of Supreme Court justices don’t seem to, particularly when it concerns their own judicial profession. Brad Smith, Professor of Law at Capital University Law School and former Chairman of the Federal Election Commission (FEC), discussed the case of Caperton v. Massey Coal at the Cato Institute’s Supreme Court Review on September 17, 2009.
The case involved Massey Coal’s decision not to purchase Caperton’s mine located in Buchanan County, VA, after an extended period of negotiations. Caperton, alleging fraud and tortuous contract interference, eventually won a $50 million jury verdict against Massey. Massey CEO Don Blankenship appealed and the case made its way to the West Virginia Supreme Court.
Smith noted an article from the February 2009 edition of the ABA Journal, in which author John Gibeaut opined:
“Blankenship appealed until the last cow straggled home. Besides his efforts in the courtroom, Blankenship also plunged into judicial politics—West Virginia-style—raising some $3 million in 2004 on behalf of an unknown Charleston lawyer named Brent D. Benjamin, who wanted a seat on the West Virginia Supreme Court of Appeals, the state’s highest court. Both sides knew the case undoubtedly would wind up there.”
The article further alleged that Benjamin “violated Caperton’s 14th Amendment due process right by accepting the millions in campaign support from Blankenship, then deciding the case anyway.”
Smith called such statements contained in the ABA Journal article “seriously misleading” and “outright false.”
“Benjamin, for example, was not an unknown attorney. He had been the state treasurer for the West Virginia Republican Party for a couple of years. He was nineteen years an attorney at one of the largest law firms in the state [and] frequently mentioned as a possible candidate. He was supported by the Republican Party during the Republican primary. The U.S. Chamber of Commerce had rated the race as one of the ten most important Supreme Court races of the year, making sure that it would be a high profile race and that any nominee would be well-funded,” Smith said.
Indeed, it did turn out to be a close race. Benjamin’s opponent, Warren McGraw , who had spent nearly four decades in West Virginia politics, won his Democratic primary challenge by a narrow 56 percent of the vote.
“Blankenship did not raise money on behalf of Justice Benjamin,” Smith argued. “Benjamin did not ‘accept’…campaign support from Blankenship and in fact could not have ‘rejected’ Blankenship’s support even had he wanted to.”
According to Smith, the reason is because Blankenship’s contributions consisted almost entirely of “independent spending,” which was done without approval or request from Benjamin’s campaign.
“Blankenship did not contribute $515,000 in direct support to Benjamin’s campaign. He contributed the legal maximum under West Virginia law of $1,000,” Smith said. “About 1/515th of what the article said he contributed. Other donors contributed over 840,000 dollars to Benjamin’s campaign-not just 330,000.”
The ABA article also gives short shrift to Benjamin’s actual behavior concerning the case.
“In fact, when we look at this case, we see that Judge Benjamin’s behavior was…impeccable,” Smith said. “He had no pecuniary interest in the case. There’s no evidence that prior to the case he had ever met Blankenship. [Benjamin] made no public comments at any time exhibiting any bias on the case. Since being on the West Virginia Supreme Court, Benjamin had voted against Massey at least 5 other times…”
One of those five cases found Benjamin upholding a $243 million judgment against Massey (almost five times the amount of the judgment issued in Caperton). Caperton’s lawyer’s argued that such past rulings were not relevant because, unlike in the previous cases, Benjamin was now the “deciding vote.”
“Of course, when you are deciding whether or not to recuse yourself, you don’t know that you’re going to be the deciding vote,” Smith pointed out. “So that would be a difficult situation.”
In West Virginia, there is no intermediary Court of Appeals, so trial court decisions are appealed directly to the West Virginia Supreme Court. While it is understandable that the circumstances of the Caperton case may make some people uneasy, it is important to remember the actual standards that judges are held to.
“Historically, the standard for due process has been that a judge has to have an actual pecuniary interest in the matter, or knowledge of the parties involved or have otherwise behaved improperly, and [here] none of those things is true,” Smith said. “So Judge Benjamin was being asked to recuse himself on something he did not do and had absolutely no control over.”
This did not stop Caperton from alleging in his brief that a “judge tainted by the probability of bias cannot constitutionally immunize his actions by the simple expedience of failing to vote in the manner that bias suggests.” Judges deciding whether to recuse themeselves from a case would do well to remember this well-reasoned argument for future reference.
In spite of the difficulty for Caperton’s lawyers to provide a workable standard for recusal, the Supreme Court ruled that Caperton’s Due Process Rights were violated. Smith says that he is prepared to see a lot more “Caperton motions” on similar grounds, especially if trial courts are willing to hear an increasing number of such appeals.
“If the big concern is judicial integrity, encouraging Caperton appeals will in of itself lead to a decline in the perceptions of judicial integrity because people will be treated to a constant series of motions accusing judges of bias,” Smith argued.
In such cases, the judge will then have a choice of two actions. One is to admit the alleged bias and recuse themselves or argue that they are not biased, which can prove to be a double-edged sword in the court of public opinion.
“It is worth noting that every major campaign finance reform group lined up on the side of Caperton in this case,” Smith said. “What they hoped was that the idea of a perception of gratitude, which was…used in arguing on behalf of Caperton, would be enough to establish a need for limits.”
Whether this case proves to be the “Trojan Horse” of campaign finance reform remains to be seen. Perhaps campaign finance reformers should consider adding tort reform provisions to their well-meaning pieces of legislation.
Brittany Fortier is an intern at the American Journalism Center, a training program run by Accuracy in Media and Accuracy in Academia.
