Amici Urge Recusals in Cases of Substantial Election Contributions
By Marcia Coyle
The National Law Journal
January 12, 2009
In a controversial West Virginia challenge, 27 former chief justices and justices of 19 state Supreme Courts are urging the U.S. Supreme 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.
"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," the former justices explain in an amici brief filed in Caperton, et al. v. A.T. Massey Coal Co., et al .
"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."
Former Texas Supreme Court Justice Raul Gonzalez is one of the 27 former chief justices and justices who joined in the amici brief, filed Jan. 6. Gonzalez, now an Austin solo, says he joined in the brief because he hopes the U.S. Supreme Court's decision in Caperton will "provide guidance for all states that elect judges."
Texans for Public Justice (TPJ), an Austin-based government watchdog group, joined in a separate amici brief that the Justice at Stake Campaign in Washington, D.C., filed with the Supreme Court on Jan. 6. 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 3 in the Caperton challenge, which stems from 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 then-attorney Brent Benjamin. Blankenship reportedly made campaign expenditures of $3 million in that battle, the bulk of which went to a so-called §527 organization, And for the Sake of the Kids, working to defeat McGraw, about $517,000 of which was in direct support of Benjamin.
The $3 million total reportedly was $1 million more than the total amount spent by all of Benjamin's other campaign supporters and three times the amount spent by Benjamin's own campaign committee. After the election, 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.
"Rather, amici submit that due process is only triggered by substantial financial support for a judge's election," they contend, adding, "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 Benjamin's participation in the coal company case appeal created an appearance of impropriety, and they would have recused themselves in similar circumstances.
Massey Coal's response on the merits and any supporting amici briefs are due by the end of this month.
Marcia Coyle is a staff reporter at The National Law Journal, a Texas Lawyer affiliate in which this article originally appeared. Texas Lawyer senior reporter Mary Alice Robbins contributed to this article.