Benjamin concurs, but does so much more

By Chris Dickerson | Jul 28, 2008


CHARLESTON -- Justice Brent Benjamin easily could have written a simple concurring opinion on a high-profile case, but he opted to do so much more.

Benjamin issued a concurring opinion July 28 in the Harman Mining case against Massey Coal.

Instead of simply stating his specific reasons for voting in the majority of a 3-2 vote when Massey's appeal of a $50 million verdict in favor of Hugh Caperton's company proved successful, the acting chief justice on the case issued a 58-page treatise.

He spells out his reasons for voting the way he did, and the opinion also touches on a number of other topics, such as the state of the state Supreme Court, justice recusals and disqualifications, how West Virginia selects judges, the 2004 Supreme Court election, political action groups and campaign contributions.

To start his opinion, Benjamin quotes Roscoe Pound, a distinguished legal scholar and educator.

"The opinions of the judge of a highest court of a state are no place for intemperate denunciation of the judge's colleagues, violent invective, attributings of bad motives to the majority of the court, and insinuations of incompetence, negligence, prejudice, or obtuseness of fellow members of the court," Benjamin quotes Pound.

Then, Benjamin takes over.

"There is an important difference between a thoughtful, well-reasoned separate opinion or order and one which is grounded in the political manipulation of legal doctrine; and in the case of ensuring a stable, predictable and fair judicial system, that difference matters," he writes. "Judges who use their opinions and orders simply as sensationalistic bombast by which to convey partisan agendas or who pander to emotion rather than legal reason do a disservice to the rule of law and to the institution they serve.

"It is a testament to the strength of our justice system that judges may disagree and do so openly in separate opinions. A well-reasoned and legally sound separate opinion carries with it the opportunity for pointing out differences with the opinions of the other members of the court without undermining public confidence in the judiciary."

A Boone County jury awarded $50 million to Caperton in his case against Massey, a dispute over a broken coal supply contract. However, the state Supreme Court overturned the verdict in November with a 3-2 vote.

Soon after the state Supreme Court's decision, photographs surfaced of Justice Spike Maynard and Blankenship on vacation in Monaco. The two, lifelong friends from Mingo County, said they simply were vacationing at the same place at the same time, and Maynard provided documentation to show he paid his own way.

Still, the justices voted unanimously to rehear Caperton's case. After Maynard voluntarily recused himself from all Massey cases, Caperton demanded Benjamin also step down.

Benjamin refused, arguing that stepping down from a case involving a campaign supporter would start a negative trend. Massey Energy CEO Don Blankenship spent more than $3 million promoting Benjamin in his 2004 race against former Justice Warren McGraw, brother of Democratic state Attorney General Darrell McGraw, through an organization called And For The Sake Of The Kids.

In Maynard's absence, Benjamin became the acting Chief Justice for the case and appointed the replacements for Maynard and Justice Larry Starcher.

In his July 28 concurring opinion, Benjamin says he believes the touchstone of a judicial system's fairness is actual justice, which comes from actual impartiality and is conveyed in well-written legal opinions rooted in the rule of law. He says the public's trust of the judicial system is compromised when politics steers a judicial decision.

"The most important factors therefore affecting the public's perception of actual justice in this Court necessarily are the actual decisions of this Court, and its members, over time, the professional demeanor of this Court's members, and the quality of the written opinions and orders which we produce in specific cases," Benjamin writes.

Benjamin says he thinks the dissenting opinion in this case, written by Justice Joseph Albright and Circuit Judge Donald Cookman (sitting on special assignment) wasn't based solely on the rule of law.

"By baiting emotions, I believe the dissenting opinion adopts a distinctly 'political voice' rather than a 'judicial voice,'" Benjamin writes. "With due respect to my dissenting colleagues, this case does not present a close call on the basis of the rule of law. Because the majority decision possesses such a deep strength of legal authority, I do not believe that the dissenting opinion in any way weakens the authority or substance of the court's decision.

"The law governing the Court's decision of this case is clear."

Benjamin then goes into a discussion of reviewable facts in the case. He says the majority opinion correctly limited its review to the facts that were before the circuit court at the time of its ruling. He says the majority was right in reasoning that the disputed contract contained a stipulation that any disagreements be filed in a county in Virginia, where Caperton filed an additional suit against Massey.

Benjamin then addresses motions filed by Harman and Caperton seeking his disqualification from the case.

"…[B]oth the dissenting opinion and the appellees (Harman, Caperton) focus on appearances – some generated by the media, some generated by a recused member of this Court with a history of verbal discourtesies toward appellant Massey (Justice Larry Starcher), and some generated herein by the appellees themselves," Benjamin writes.

Starcher had called for an investigation into the Maynard-Blankenship friendship and had dissented sharply in the November decision. Court officials said they do not have the power to conduct such an investigation.

On Feb. 19, Starcher recused himself from the case, which ballooned to $76 million with interest, and urged Benjamin to do the same. Starcher publicly has called Blankenship "stupid" and "a clown," leading to a lawsuit filed by Massey against the Supreme Court with the goal of forcing Starcher to disqualify himself from all Massey cases.

In his concurring opinion, Benjamin also says a footnote in the dissenting opinion leads one to conclude that opinion "advocates that the concept of 'appearance-driven' judging should bring about a different substantive outcome in this matter."

"That is disappointing," Benjamin writes. "Justice should not be determined more by the popularity, or lack thereof, of a given litigant or a given result than by the rule of law. Rather, justice must always emphasize the importance and definiteness of the law in the resolution of disputes. In that manner, my participation herein was wholly consistent with due process."

Earlier this month, Caperton asked the U.S. Supreme Court to decide if Benjamin should have stayed on the bench for Massey's appeal.

Caperton's petition, obtained by The West Virginia Record, asks the Justices to answer a question: If Benjamin's refusal to recuse himself violated Harman Mining's 14th Amendment right to due process.

"This Court's review of Justice Benjamin's insistence on participating in this case is warranted to provide authoritative guidance to the lower courts regarding the circumstances in which due process requires recusal of a judge who has benefited from a litigant's substantial campaign contributions and to restore public confidence in the judicial systems of the thirty-nine States that elect their judges," Caperton's attorneys wrote in the petition, filed July 2.

Back to Benjamin's opinion, he also addresses the differences between "apparent or political justice" and "actual justice." He says a court immersed in "apparent or political justice" must curry favor with those with the "loudest or shrillest voices" and those with "the most radical means of gaining public attention."

"In doing so, decisions not only will be biased toward certain groups and their favored positions, but decision-making will necessarily take on an inductiveness, where the desired end-result for a case determines the manner in which the court conducts its legal analysis," Benjamin writes. "Since justice then would be determined by the ebb and flow of political opinion, justice will become more actively policy-driven, and our judges, like terriers jumping for treats, will promote a judicial system decidedly unstable and unpredictable."

He said that style is in direct opposition of the Code of Judicial Conduct.

"Simply stated, a decision which is firmly rooted in legal substance should not yield to a collateral partisan attack which manipulates appearances," Benjamin writes. "Rather, it should rise or fall on its own substantive merits.

"Proper legal decisions should never be mere rationalizations fronting for political correctness. … Partisan rhetoric and resorts to emotion-laden rants betray a contempt for the judiciary's role in a constitutional government. Sadly, such political considerations have, it seems from recent behaviors, institutionalized and entrenched themselves in our Court."

Benjamin says this "politicization of our judiciary" must stop.

"Our judicial system should be resolutely founded on the rule of law, administered by conscientious and dispassionate judges, and legitimized through well-reasoned legal opinions," he writes. "We must do actual justice to achieve actual justice. Public confidence requires no less."

Benjamin then turns to the issue of recusals. He says West Virginia judicial officers have a duty to hear cases except when disqualification is required.

"This 'duty to sit' is not optional," Benjamin writes.

Benjamin also touches on his "apparent conflict" addressed in the dissenting opinion and by Harman and Caperton. He says that standard would lead to a rather bizarre situation.

"A judge with an actual bias or interest in the outcome of a case would nevertheless sit in the case, while a judge with absolutely no bias, prejudice or interest in the outcome of a case could be forced off of the case by the manipulation of appearances outside of the judge's control," Benjamin writes in a footnote. "For example, if a judge develops an actual animosity toward a litigant or to counsel during a case, recusal is not required. … Therefore, under the standard set forth by the dissenting opinion, a judge without any bias whatsoever could be disqualified so long as it could be claimed that there was an 'apparent conflict,' but a judge who had an actual bias could remain on a case so long as that bias developed during the pendency of the case. …

"Furthermore, the only limitation to recusal motions based upon an appearance standard would be the imagination of a party. Would judges who are former legislators be subject to disqualification motions when reviewing legislation passed while they were members of the Legislature? Would judges who are church members be subject to disqualification in cases involving issues such as abortion or 'church and state?' Would former prosecutors be subject to disqualification in criminal cases because they were 'law and order' prosecutors?"

Benjamin then turns to the fact that West Virginia has decided to select judges in partisan elections.

"Incumbent in any state system which selects its judicial officers through the electoral process, particularly through partisan elections, are potential problems," Benjamin writes. "Insofar as all state judicial offices are filled through the electoral process, every judicial officer in this state is subject to having to decide the merits of a case that involves a party or attorney who contributed to or supported, or, conversely, opposed his or her campaign for office. This now includes those who contribute to or support so-called Independent Expenditure Groups who engage in political campaigns completely independent of candidates of office."

In a footnote, Benjamin references a 1995 decision reprimanding then-Circuit Judge Starcher for a violation of judicial ethics regarding improper communications with a party during trial. In a dissent in that case, then-Chief Justice Richard Neely, stated, "In this State, judges get to be judges because they are political leaders."

Benjamin says the people of West Virginia must decide how to select their judges and justices.

"I must disagree, however, with those who believe that politics and partisanship, particularly during an election cycle, have any place in this Court or anywhere in West Virginia's judicial system," he writes. "In a system wherein judicial officers believe it appropriate to harbor political biases and prejudices and to bring those 'personal values' to bear in the determination of cases, one might question whether public pronouncements by such judicial officers are politically-driven and are designed not to serve the rule of law but rather to affect the outcome of litigation or an election thereby elevating 'apparent or political justice' over actual justice.

"The long-term negative impact on the public's perception of the judiciary caused by judicial officers who use their offices to serve political ends or who pander to partisan prejudices is deeply troubling."

Benjamin then discusses the 2004 election in which he defeated McGraw and how critics say Blankenship's campaign against McGraw means Benjamin shouldn't rule on Massey cases.

"I neither have, nor at any time have ever had, any direct, personal, substantial or pecuniary interest, real or otherwise, in the outcome of this case," Benjamin writes. "My campaign was completely independent of any independent expenditure group or individual. …

"The outcome of the 2004 election was due primarily to my campaign's message of fairness, stability and predictability in decision-making, the importance of the rule of law to courts, and the need for judges to exercise civility, integrity and personal professionalism. … The campaign of my opponent, former-Justice McGraw, was devastated by a speech which he gave at Racine, West Virginia, on Labor Day, and by the effective publication of this speech to the people of West Virginia by the Benjamin campaign."

Benjamin also says no improper act or conduct, and no appearance of an improper act or conduct with respect to this case, or any other case, has occurred on his part.

"Nothing in my history as a jurist (including a number of cases involving Massey and/or its subsidiaries) reveals any bias or prejudice for or against any of the parties in this case," he writes. "No attorneys other than the counsel in this case, have ever sought my recusal in a matter involving Massey – including the current administration and West Virginia's Attorney General. …

"Former-Justice McGraw was, and had been for several decades, a colorful and controversial politician in West Virginia and had an extremely contentious Democratic primary race in 2004 where significant electoral support went to his opponent, Circuit Judge Jim Rowe."

Benjamin notes that the determination of whether a justice should recuse himself from a case is left to the discretion of the individual justice.

"Although I declined to recuse myself from this case, this Court did not invoke its authority … to remove me from the case," he writes. "Simply put, I do not have, nor was there any evidence to show that I had a 'direct, personal, substantial, pecuniary interest' in this case."

Benjamin stresses that McGraw's speech at Racine was the pivotal moment of the 2004 election. During the speech, McGraw "spoke in a screaming and unflattering manner," Benjamin writes.

"Excerpts from the Racine speech were extensively aired as campaign advertisements by the Benjamin campaign throughout the state," Benjamin writes. "In the relevant text of the speech, Justice McGraw was screaming that people were following him 'looking for ugly.' The McGraw speech at Racine soon became the subject of much conversation around West Virginia. In the final analysis, former-Justice McGraw simply could not defend himself against his own words."

Benjamin says the dissenting opinion and the appellees hinge their theory that he should remove himself from the case on Blankenship's support of And For The Sake Of The Kids.

"If the appellees' argument became the law, every judicial officer in this state would be disqualified from any and every case in which an independent nonparty organization over which the judicial officer had no control received contributions from individuals or groups which included a person or entity affiliated with a party or an attorney in the case, when the independent nonparty organization used its contributions to wage a campaign against the judicial officer's electoral opponent," Benjamin writes. "Conversely, such a standard would likely require a judge also to recuse himself or herself when an independent expenditure group operated against the judge or supported the judge's opponent. Our judicial system would break down under such a standard for disqualification. …

"Direct contributions to a judicial candidate's campaign are an insufficient basis, alone, to require disqualification. Therefore, contributions by a third-person to a completely independent campaign – with no ties to the judicial candidate – do not rise to a due process requirement of disqualification."

In his conclusion, Benjamin a judicial body's integrity is an extension of the integrity of its decisions.

"The simple invitation to guess about hidden motivations of judges or colleagues on the bench caused by a selective recounting of facts or by the trafficking of innuendo and half-truths serves only to indulge suspicions and doubts concerning the integrity of elected officials," he writes. "It serves only politics. It is drama. It is a diversion."

He says some judges, especially in high-profile cases or in states that elect judges, would welcome a "baseless" recusal request.

"The public is legitimately entitled to more – they are entitled to judicial integrity and courage," Benjamin writes. "To surrender to such recusal temptations would justly expose the judiciary to public contempt.

"It is the obligation of officers of the court system to ensure that professionalism, not partisanship, guides their actions and that cases are decided on the basis of the law, not in spite of it."

Benjamin says the timing of this saga is unfortunate in that two of the five seats on the Court are up for election in November.

"During periods when change is possible in the philosophical direction of the Court, the temptation by pundits, members of the media, litigants, candidates, special interest groups, or even members of this Court to politicize this Court and its decision is present," he writes. "Although this Court has endured for 145 years, election cycles can be unsettling to the stability and predictability of the rule of law.

"This puts a heavy burden on the members of this Court to act in the highest standard of judicial professionalism, to refrain from exacerbating tensions, to avoid the highly emotional, to abstain from that which is deeply divisive, and to work judicially and judiciously."

As do judges, Benjamin says attorneys have a duty to the system.

"While counsel must endeavor to represent their clients zealously, they should do so with due regard to the profession they serve," Benjamin writes. "I would be remiss if I did not acknowledge my disappointment in the material omissions from the motions for disqualification filed herein against myself.

"Omitted from the motions herein was any objective consideration of my actual record, my decisions and my behavior in over three years on this Court – the truest measure of a judge."

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