Recusal Fight Highlights Judicial Election Concerns

The appeal of a $50M verdict involving key donor draws fire
The spotlight has returned to the issue of judicial election reform, thanks in part to a West Virginia high court judge who declined to recuse himself from hearing the appeal of a judgment against a company whose owner contributed at least $3 million to the judge's election. Justice Brent D. Benjamin's principal campaign donor was the Massey Energy Co.'s CEO, who gave money to groups involved in the campaign while a $50 million jury award against Massey was pending on appeal before the state's high court.

Peter Geier

The National Law Journal

2006-05-04 12:00:00 AM

A West Virginia high court judge who declined to recuse himself from hearing the appeal of a $50 million judgment against a company -- despite the fact that its owner contributed at least $3 million to the judge's election -- has turned a spotlight back on judicial election reform.

Supreme Court of Appeals Justice Brent D. Benjamin unseated incumbent Justice Warren McGraw in a November 2004 election. The contest was highlighted by seven soft money-generating committees that raised a total of nearly $7 million for judicial candidates.

Benjamin's principal donor, Don L. Blankenship, chairman and CEO of Massey Energy Co. of Richmond, Va., contributed at least $3 million to a pair of committees that ran advertisements attacking Benjamin's opponent, as well as funds through other groups, according to the Institute on Money in Politics of Helena, Mont., a nonpartisan group that monitors state campaign finance.

During this time, a $50 million jury award against the Massey Energy Co. for tortious interference and fraud in a coal contract dispute with Hugh M. Caperton and Caperton's three companies had been pending on appeal before West Virginia's five-member high court. Caperton v. A.T. Massey Coal Co. Inc., No. 98-C-192 (Boone Co., W.Va., Cir. Ct.).

In court pleadings, Caperton's counsel argue that Blankenship's support for Benjamin could undermine the appearance of the justice's impartiality.

Caperton's attorney, Bruce E. Stanley of Reed Smith's Pittsburgh office, and David B. Fawcett of Pittsburgh's Buchanan Ingersoll, who represents Caperton's companies, declined to comment on a pending matter.

Benjamin also declined to speak on a matter before him.

Deborah Goldberg, director of the Democracy Program at New York University School of Law's Brennan Center for Justice, compared the situation to the imbroglio over Illinois Supreme Court Justice Lloyd A. Karmeier.

Karmeier, who also denied motions to recuse, allegedly got multimillion-dollar campaign contributions from parties interested in the appellate outcomes of Avery v. State Farm Mutual Insurance Co., 216 Ill. 2d 100 (2005), a consumer class action that drew a $1 billion award, and Price v. Philip Morris Inc., No. 76236 (2005), a $10 billion judgment over light cigarettes.

SITUATION TO GET WORSE?

Charles G. Geyh, a professor at Indiana University School of Law-Bloomington, said polls show that the public thinks campaign spending in judicial elections influences judges' decisions.

The funding of judicial elections by special interest groups suggests that things "are only going to get worse before anyone does anything about it," said Geyh, who is also a co-reporter on the American Bar Association's Joint Commission to Evaluate the Model Code of Judicial Conduct.

State Supreme Courts all agree that judges must recuse themselves if their impartiality might be questioned. But no state has adopted the ABA model code provision that sets limits for determining when recusal is proper, he said.

Few would say that a $100 or $200 contribution to a judge from a lawyer or group is going to "buy justice," Geyh said, "but you do cross the line at some point. When you're talking about $3 million, I think there may be a 'perception issue.' "