Emch

BY AL EMCH

CHARLESTON -- Chief Justice Brent Benjamin has for months been caught in a vicious cross-fire on a battlefield that he did not choose, in a war he did not start, among combatants with goals that they are willing to sacrifice him to achieve.

Justice Benjamin has done nothing to defend himself because he feels constrained by the dignity and decorum that rightly surround his high office. He correctly believes that a Justice of the Supreme Court of Appeals of West Virginia speaks through his opinions and ought not to be drawn into the kind of "public" debate that properly informs other areas of our "political" system.

Duty and honor bound Justice Benjamin not to defend himself, I invite others to join me in doing so.

In an effort to declaw those who will choose to impugn the motives of the messenger rather than address the merits of the message, let me first make full disclosure: I and my law firm have represented Massey Energy Company and its subsidiaries in various legal matters for many years. We have not, however, represented it in regard to the Caperton matter that provides the ground for the current battle.

But neither I nor any lawyer worth his or her salt is a sycophant for any client. I believe clients -– including Massey -– use lawyers who give them straightforward advice and counsel, and who represent them honestly and with professional integrity, which means advocating strongly but fairly all positions that have merit and counseling the client against those that don't. No sophisticated client will stay long with other than truly "independent" counsel.

This is a long way of saying that my words and views are mine -– not Massey's or Don Blankenship's.

Also, at the risk of publically insulting those whose names appear in the rest of this sentence, on a personal level I consider Justice Benjamin, as well as Justices Davis, Workman, Ketchum, McHugh and Albright, to be "friends." Ditto former Justices Starcher and Maynard. But that does not mean that I or they hang professional integrity in the hallway when we encounter one another in our professional capacities in a legal dispute.

To the contrary, lawyers and judges cultivate and revere the ability –- indeed the necessity -– to disagree honorably on legal issues while maintaining personal collegiality and, often, friendship. It is a core value of our profession.

Now to the defense of Justice Benjamin. The sad thing is that he should not need defending, but the comments that continue to pour out are either absurdly colored by the well-documented biases of those making them (most recently Cecil Roberts) or are framed against Justice Benjamin when in fact they are critical of the imperfections in a system that perversely mandates partisan judicial elections, thus requiring judges to run the muddy gauntlet of politics to attain their posts.

The "problem" is not Justice Benjamin or his conduct since attaining his office; it is the fact that those who have other axes to grind, either about the Caperton case or the system in general, are willing to smear Justice Benjamin if it advances their goals.

Let us first consider the interests of the party who has brought the Caperton matter before the Supreme Court of the United States. Mr. Caperton had his claims reviewed by the Supreme Court of Appeals of West Virginia twice, by no fewer than seven different judges. He lost both times.

Unable to win his appeal on the merits, he pursues this collateral attack on Justice Benjamin as a possible end run. Where in the media reports on this case have we seen an analysis of the substance of the issues involved and the twice-asserted reasoning of our Court in ruling on them? Nowhere. The merits are unassailable, which is why Mr. Capterton attacks Justice Benjamin instead.

As to those who have filed "friend of the Court" briefs supporting Mr. Caperton's position, they simply view this as a vehicle by which they can bring before the United States Supreme Court their general and legitimate grievances about the untidy confluence of partisan judicial elections, politics, and campaign finance laws. Justice Benjamin is just a necessary casualty in their view.

Next, let's correct a misleading statement. Commentators have almost invariably characterized Don Blankenship's expenditures through his foundation And For the Sake of the Kids as "contributing $3,000,000 to Benjamin's campaign" or otherwise suggest that what Don Blankenship did constituted a "campaign contribution" to Justice Benjamin. That is false.

What Don Blankenship did was mount an "issue" campaign against then-Justice Warren McGraw. While this may have benefited Justice Benjamin's campaign, Don Blankenship probably cared much more about who lost the election than he did who won it. More to the point, Don Blankenship acted on his own, as was his legal right. Justice Benjamin did not and could not influence what Don Blankenship did or did not do.

Is Justice Benjamin beholden to Don Blankenship for his election? His concurring opinion to the final Caperton decision certainly explains in logical and comprehensive fashion why he is not. If you want to be fully informed, read it.

Beyond that, it is illogical to suggest that Justice Benjamin would sacrifice his reputation, legacy, and personal integrity to "pay back" a supporter or to "punish" a detractor; victory alone serves both of those goals well enough.

Now let us review for a moment the history and import of efforts to recuse Justice Benjamin and Justice Starcher from Massey cases. Almost as soon as he took office, the issue was immediately and repeatedly raised through motions addressed to Justice Benjamin asking that he recuse himself from all cases involving Massey.

Justice Benjamin, knowing that he was not biased, customarily and in a dignified way, declined to recuse himself from those cases. He did so officially, in writing, and properly declined non-official, "public" comment on the matter.

Justice Starcher, on the other hand, had made non-official, "public" statements many times (dating from well before Justice Benjamin came to the Court) that indicated a clear bias against Don Blankenship and Massey. He also refused to recuse himself from Massey cases in the face of repeated motions –- made by me and others -– that he do so.

After Justice Benjamin was elected, such dueling motions became almost routine -- a tit for tat that lawyers felt compelled to replay each time Massey came before the Court. Unlike Justice Benjamin, however, Justice Starcher's declinations became more and more strident and "public," almost like a crusade.

Finally, in the second round of the Caperton case, Justice Maynard having recused himself, Justice Starcher decided to take the spotlight off his own obvious bias and turn it on Justice Benjamin by laying his own recusal on the table publically like a poker chip and asking that Justice Benjamin call his bet. Justice Benjamin, having conducted himself at all times throughout the history of the situation with dignity, decorum, and judicial restraint, chose not to play in that unseemly game.

Should Justice Benjamin, knowing that he was not biased and having never acknowledged any "appearance of impropriety" in the past, have reversed course and recused himself as Justice Starcher did? Can the "appearance of impropriety" be seeded and grown by litigants and the media and others over time so as to overwhelm the absence of actual bias and force a judge to recuse himself? I would hope not, but we are watching.

That Justice Benjamin did not accede to years of routine requests that he recuse himself from Massey cases is a testament to his confidence in his impartiality and his faithfulness to fulfill the duties of the high office to which he had been elected; it was a principled decision.

His final refusal to recuse himself from a notorious case in the face of an ever escalating frenzy of attention, stirred by a disgruntled litigant and fueled by the tasty combination of one Justice's oft-expressed disdain for Don Blankenship and another's long-time friendship with him (both circumstances having led, albeit by very different routes, to recusal), is a testament to Justice Benjamin's integrity and his belief that an appearance of impropriety that did not exist when he took his oath of office could not be manufactured thereafter.

The fact is that neither Don Blankenship, Mr. Caperton, the press nor anybody else ought to be able to force a Justice of the Supreme Court of Appeals to turn away from his or her public duty if there is no tie or fact that indicates an actual bias on the part of that Justice. We have a system presently, like it or not (I for one do not like it, by the way), that elects our judges and Justices.

Recusal by a Justice is entirely in the discretion of that Justice, just as it is with the Justices of the Supreme Court of the United States. Our rules dictate the circumstances when recusal is mandated; the rest is discretionary. To make it otherwise opens a process that is now a dignified respecter of judicial integrity to the slings and arrows of advocacy and the pursuit of partisan agendas that ignore the merits, as witnessed by the current "debate" focused on Justice Benjamin's decision not to recuse.

The core of the real debate circling around Justice Benjamin concerning his sitting or not sitting on the Caperton case is not about personal bias for or against a party litigant; it is about judicial philosophy. That was really what drove Don Blankenship and those others who supported And for the Sake of the Kids to mount the issues campaign that they did in that election.

Warren McGraw was viewed by many as a liberal, populist, result-oriented justice who looked at a case, determined what he thought should be the result, and then molded the law as necessary to achieve that result. The asserted problem with such justices is that their decisions create instability and uncertainty as opposed to the predictability that comes from governance by statute and known legal precedent.

Justice Benjamin is described as having a more conservative judicial philosophy, meaning that he defers to the Legislature or Executive branches of government when appropriate, applies the constitutional and statutory law and common law (meaning judge-created) legal principles in existence, and develops "new" elements of the latter in small increments over time and in carefully-reasoned ways that logically build on prior precedent as related to the facts before him in a particular case.

This provides stability and predictability, and sets guidelines and standards so that citizens can conform their conduct to known rules rather than personal predilections. A preference for or adherence to a particular judicial philosophy is an important consideration in choosing a justice no matter how it is done, but it is not an appropriate basis upon which to seek recusal once the choice has been made.

If the Supreme Court of the United States rules that an "appearance of impropriety" such as to require recusal by a judge may be determined by forces external to the judge's own conscience, and can therefore be controlled and orchestrated by those external forces, it will place our system on a slippery slope that knows no boundaries. It will empower both parties and external forces to attempt to implement a philosophical preference through an asserted "appearance of impropriety," with all its attendant allegations, argument, and other negative baggage, and will deemphasize the paramount importance of assuring fair and impartial justices who demonstrate intellectual integrity regardless of philosophy.

If spending some "substantial" amount of money in connection with an election campaign produces an automatic "appearance of impropriety," where then do we draw the due process line? Just what is substantial? Does it depend on the scope of the judicial race (circuit or statewide), the total amount spent by all candidates, or what? Should any candidate who wins in the face of a "substantial" expenditure by someone in opposition be recused from cases involving that someone?

If Warren McGraw had won the election, would he have had to recuse himself from cases involving Massey? Is a candidate who wins with the endorsement of the Charleston Gazette or the Daily Mail then presumed to be biased in favor of the publishers? If the UMWA endorses a candidate and that candidate wins, is that candidate then to be recused from considering cases or issues that impact the UMWA or its members? Are lawyer "friends" of justices or judges to be precluded from appearing before them? What is a "friend" anyway?

Must all the campaign contributions, expenditures, volunteer efforts, public statements, fundraisers, and other inconvenient but unavoidable little accoutrements of partisan judicial elections be combed and groomed and pruned and paraded around in every case? And who decides when the "standard" is met for recusal once the individual justice's discretion is superseded? The potential mud in which we would become mired is deep indeed.

Whatever may be your views about partisan judicial elections and the laws that govern how individuals can spend or donate money relating to election campaigns, the focus of your ire ought not to be upon Justice Benjamin, who has conducted himself with dignity and restraint throughout this matter; rather, it should be directed toward the public officials who make the laws, or the Constitution that limits their reach. Attack the system and change IT if we will, but please do not denigrate those who strive honorably to do their duty in it.

Emch is a member and former CEO of Jackson Kelly, and he has practiced in Charleston and West Virginia for more than 30 years. Contact him at aemch@jacksonkelly.com.

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