WASHINGTON — Twenty-seven former chief justices and justices of 19 state supreme courts are urging the U.S. Supreme Court in a controversial West Virginia challenge to rule that a judge must recuse himself or herself from cases 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 amicus brief filed in Caperton v. A.T. Massey Coal, No. 08-22.
“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.”
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 office 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 Section 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 amicus 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 amicus briefs are due by the end of this month.