West Virginia Debates Effect of Supreme Court Recusal Ruling on Judiciary

June 12, 2009

This week’s U.S. Supreme Court ruling that faults state Justice Brent Benjamin for not recusing himself from a case involving a generous campaign supporter may aid a pending review of West Virginia’s court system, but legal experts differ on its overall effect.

Massey Energy Co. Chief Executive Don Blankenship spent at least $3 million to help elect Benjamin in 2004. Benjamin later sided with the Richmond, Va.,-based coal producer in a 3-2 ruling that overturned a $50 million verdict won by Harman Mining Co., and its president, Hugh Caperton, in a contract dispute.

Benjamin had refused to step aside despite repeated requests from Harman and Caperton, who appealed to the U.S. Supreme Court and prevailed in Monday’s 5-4 decision.

The U.S. justices found that Blankenship’s spending “had a significant and disproportionate influence on the outcome.” But Putnam County Circuit Judge O.C. Spaulding, head of the state’s association of judges and justices, noted that the ruling sets no definite line that a campaign benefactor must cross to trigger recusal.

“That’s the difficulty of this decision: what’s large enough?” Spaulding said.

State Democratic Party Chairman Nick Casey also questioned the ruling’s effect on West Virginia’s method of electing its judiciary in partisan balloting.

“I don’t think it’s an indictment of our selection process,” said Casey, a lawyer.

But Monday’s ruling also arrives after Gov. Joe Manchin commissioned the latest in a series of studies of the state’s court system.

“Today’s Supreme Court decision is one more piece of information that needs to be considered in making recommendations about our judicial system and any reforms that the commission may recommend,” Manchin spokesman Matt Turner said.

He said the review — and any changes that might be adopted to the court system — “are important to ensure that our citizens have confidence in their judicial system in West Virginia.”

State GOP Chairman Doug McKinney criticized the ruling for its reliance on the “perception” of bias.

“The Supreme Court has today established a new recusal standard based on perception rather than on actual bias,” McKinney said. “The result will likely be a flood of recusal requests that will further create a bottleneck of backed up cases in our judicial system.”

McKinney also noted that Monday’s majority wrote that it “does not question Justice Benjamin’s subjective findings of impartiality and propriety and need not determine whether there was actual bias.”

The ruling said that “the risk that Blankenship’s influence engendered actual bias is sufficiently substantial that it must be forbidden if the guarantee of due process is to be adequately implemented,” adding later that “there was here a serious, objective risk of actual bias that required Justice Benjamin’s recusal.”

Benjamin is the West Virginia court’s sole Republican. State voters added Menis Ketchum and Margaret Workman to its five-seat bench in November. The pair displaced then-Chief Justice Elliott “Spike” Maynard in the Democratic primary, after he was hit by conflict-of-interest allegations arising from vacation photos of him with Blankenship in Monaco while Massey had cases pending before the court.

The death of Justice Joseph Albright in March, amid treatment for esophageal cancer, puts his seat on the 2010 ballot. Senate Judiciary Chairman Jeff Kessler hopes the ruling will sway Manchin to include in any upcoming special session a proposal requiring greater disclosure of independent political spending, and limiting that of corporations.

Federal judges have twice temporarily barred enforcement of previous versions of this legislation, which had been spurred largely by Blankenship’s 2004 spending.

“I’m encouraged by the fact that the highest court in the land has now, clearly, established that it has great concerns about the influence that such great amounts of money can have,” said Kessler, D-Marshall and a lawyer.

“The next question becomes, how do we know about the role of money and who is behind that money if we don’t know who they are?”

Kessler said he will also urge Manchin to propose a public financing option for Supreme Court races. His committee endorsed such a measure during the recent regular session, but it failed to advance.

The U.S. Supreme Court appeal had attracted more than 16 “friend of the court” briefs from dozens of individuals and groups, mostly in support of Harman and Caperton. James Bopp, a lawyer for the James Madison Center for Free Speech, which filed a brief on Massey’s behalf, agreed that Monday’s decision’s seemed tailored to the case at hand.

“If the people who are hostile to judicial elections are able to expand the decision, it would making have judicial elections very difficult, but as written this decision is extremely narrow and seems only to apply to the most extreme situation,” Bopp said.

Monday’s ruling sends the case back to the state Supreme Court, which “will follow the United States Supreme Court mandate,” spokeswoman Jennifer Bundy said.


Associated Press Business Writer Tim Huber in Charleston contributed to this report.

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