Caperton V Massey, or can you buy a judge?

[Pox]

This is a big one, the court just heard it.

Justice Brent Benjamin of the Supreme Court of Appeals of West Virginia refused to recuse himself from the appeal of the $50 million jury verdict, even though the CEO of the lead defendant spent $3 million supporting his campaign for a seat on the court—more than 60% of the total amount spent to support Justice Benjamin's campaign—while preparing to appeal the verdict against his company. After winning election to the court, Justice Benjamin cast the deciding vote in the court's 3-2 decision overturning that verdict.
According to Theodore B. Olson, former Solicitor General of the United States and counsel of record for the Petitioners, "The improper appearance created by money in judicial elections is one of the most important issues facing our judicial system today. A line needs to be drawn somewhere to prevent a judge from hearing cases involving a person who has made massive campaign contributions to benefit the judge. We certainly believe that, in this case, acting Chief Justice Benjamin crossed that line."
http://www.brennancenter.org/content/resource/caperton_v_massey/

more here: http://www.slate.com/id/2212798/

Oral arguments: (Scalia is a taint)
http://www.supremecourtus.gov/oral_arguments/argument_transcripts/08-22.pdf


How should the court rule on this and why?

[Pharon]

This case is a perfect example of why judges should be appointed (preferably for life), and not elected. There's already way too much of a money influence on the other two branches as it is.

Oh, and I love this gem by Scalia -- sometimes I seriously think he's losing his mind. Either that or he really thinks everyone else in America is stupid enough to buy into his bullshit:

The clash of two titans of the Supreme Court bar—former Solicitor General Theodore Olson and seasoned lawyer Andrew Frey—is a long blur of interruptions, evasions, and ellipses. As Olson, representing Caperton, attempts to wax lyrical about the "constitutional right to a fair tribunal," Justice Antonin Scalia cuts him off to ask when the court has ever promised anything like that.

Olson says that an ordinary person may begin to doubt the neutrality of a judge if, oh, say, "that judge has just been put on the bench during the pendency of the trial of the case by his opponent's contribution of $3 million …" Scalia says Olson has it all wrong. When people contribute millions of their own dollars to judicial-election campaigns, it's because "they want me to be a good judge … and I'm showing my gratitude by being a good judge." That's the only expectation they have.

http://www.slate.com/id/2212798

[Morfin]

My thoughts on the case.

Here are the basic facts from the Slate article that Pox linked:

In 2002, a West Virginia jury determined that the A.T. Massey Coal Co. had fraudulently forced competitor Hugh Caperton into bankruptcy. Massey's CEO, Don Blankenship, promptly appealed, having warned Caperton: "We spend a million dollars a month on lawyers, and we'll tie you up for years." West Virginia has only one appellate court—its Supreme Court. Concerned about his odds on appeal, Blankenship spent $3 million of his own money to take out sitting Justice Warren McGraw by backing his opponent in a 2004 judicial election.So McGraw loses to Brent Benjamin. Massey's case then comes in front of the West Virginia Supreme Court. Benjamin refuses to recuse himself. Benjamin ends up being the deciding vote in a 3-2 decision overturning the $50 million verdict.

The question is whether Benjamin, by not recusing himself from the case, deprived Blankenship of its constitutional due process rights.

In general, recusal is based either on statute or canons of judicial ethics, based on whether the judge believes that there is a conflict of interest. The issue is what is in the judge's proverbial "heart of hearts."

Blankenship is seeking a due process principle that a court would decide the due process issue. Massey wants the matter to be left as is, that is, allowing the judge to make the determination.

The issues are several. First, whether this is a constitutional issue or one that should be left to the states to legislate. Second, if it is constitutional issue, whether the standard should look at the judge's decision or one of appearance. The first issue involves two sub-issues. The first sub-issue is whether the matter should be left to the states to decide how they wanted to deal with campaign donations, in terms of size and potential influence peddling. The second sub-issue goes to whether setting up a standard would create greater complications, such that the matter should be left to the states, rather than create a standard that will be complicated.

The second issue is whether the decision is the judge's or should be based on the appearance or an objective, reasonable person standard. Currently, most states follow judicial canons of ethics which require the judge to decide for himself/herself whether there is any conflict or appearance of conflict -- but the issue is subjective -- what he believes -- and is final with that judge: If the judge refuses to recuse himself/herself, there is no appellate recourse. Caperton argues that, instead of a subjective, actual bias standard, that the Court should apply one that is objectively-based -- what would a reasonable person believe, or would the reasonable person believe there was a probabilty of bias or appearance of bias.

The oral arguments provide a good perspective on what the justices are thinking. Justice Scalia spoke of the states being able to prevent problems with campaign donation limits, and that this would simplify the matter or, to look at it from a different perspective, avoid a morass of cases based on some necessarily-vague "probability of bias" standard. Justice Souter commented similarly, asking whether the political process was handling the matter such that the judicial branch should stay its hand. We can assume that Justice Thomas will rule consistent with Scalia.

Justice Breyer, in his questioning, appeared to favor a "probability of bias" standard. Massey's attorney argued that this would make it difficult to set up a standard and Justice Breyer responded with, "Why is it any different than a 4th Amendment "probable cause" standard, which is nebulous and far from clear-cut.

Justice Kennedy pointed out that, if the Supreme Court, got involved and set up a standard, suddenly bias motions would be a routine part of the pretrial process. Therefore, it is of great importance that they get the standard correct.

Justice Stevens, by his questioning, was more concerned about protection of the appearance of impropriety and protecting the public's faith in the courts and judiciary. He wrestled with Massey's attorney about whether actual bias needed to be shown or whether an appearance of bias was sufficient. Kennedy and Breyer agreed.

Justice Souter seemed to be past the involvement question and concerned with the appropriate standard. Ginsburg as well.

I believe that we are going to see the Court rule that this is a constitutional, due process issue, with the majority including Souter, Ginsburg, Stevens, Kennedy, and Breyer. However, this may be a 5-4 decision, so it could just as easily end up that the Court decides that this is something best left for the states to handle. There is going to be a standard for recusal set up, probably multi-factoral, including "debt of gratitude" and whether a a reasonable person would believe there was a likelihood of bias.

[Morfin]

Supreme Court Tells Judges Not to Rule on Major Backers

WASHINGTON (AP) -- The Supreme Court ruled Monday that elected judges must step aside from cases when large campaign contributions from interested parties create the appearance of bias.

By a 5-4 vote in a case from West Virginia, the court said that a judge who remained involved in a lawsuit filed against the company of the most generous supporter of his election deprived the other side of the constitutional right to a fair trial.

With multimillion-dollar judicial election campaigns on the rise, the court's decision Monday could have widespread significance. Justice at Stake, which tracks campaign spending in judicial elections, says judges are elected in 39 states and that candidates for the highest state courts have raised more than $168 million since 2000.

The West Virginia case involved more than $3 million spent by the chief executive of Massey Energy Co. to help elect state Supreme Court Justice Brent Benjamin. At the same time, Massey was appealing a verdict, which now totals $82.7 million with interest, in a dispute with a local coal company. Benjamin refused to step aside from the case, despite repeated requests, and was part of a 3-2 decision to overturn the verdict.Link (http://www.nytimes.com/aponline/2009/06/08/us/AP-US-Supreme-Court-Judicial-Ethics.html?_r=1&hp)

I have yet to read the opinion.

[Pox]

This surprises me.

[Hanover Fist]

So would it be smarter to raise money for judges you might think would rule against you to thereby have them eliminated from ruling against you?

[Pharon]

''It is an old cliche, but sometimes the cure is worse than the disease,'' Roberts said. He wrote that it is not clear that Blankenship's money even affected the outcome of the election.

''I would give the voters of West Virginia more credit than that,'' he said.
What a naive thing to say. Of course money influences elections. Otherwise, McCain-Feingold would've never been necessary... and ruled Constitutional by this very Court.

Looks like Roberts needs to go re-read McConnell v. FEC (http://en.wikipedia.org/wiki/McConnell_v._FEC).

[Rover]

Why would he need to read McConnell v. FEC? He didn't participate in that case (that was Rehnquist's court), and if he did, I'd bet he'd rule with the other "conservative" justices. Also, with the FEC v. Wisonsin Right to Life (2007) the Roberts' court has started to chip away at McCain-Feingold.

Read Roberts' opinion in FEC v. WRL. He's a huge campaign finance reform opponent. That decision practically overturned McConnell v. FEC.