Benjamin

McGraw

Blankenship

Cohen

Caperton

CHARLESTON -- A Washington, D.C.-based court reform group says a new poll shows that average citizens believe elected judges should step aside in cases where one of the litigants was a major campaign supporter.

Justice at Stake is tying the poll to a pending U.S. Supreme Court case targeting West Virginia Supreme Court Chief Justice Brent Benjamin's decision to stay on an appeal involving Massey Energy.

The case argues that Benjamin should have stepped aside in the case because Don Blankenship, Massey's CEO, spent millions on an ad campaign that some credit with Benjamin's 2004 win over former Justice Warren McGraw.

The telephone poll, conducted by Harris Interactive, found that 68 percent of respondents doubted that a judge could be impartial in a case where one of the litigants spent at least $50,000 in an effort to elect the judge. Seventy-three percent doubted a judge's fairness when $1 million was spent on such an effort.

Blankenship spent about $3 million to unseat McGraw in an independent campaign called "And for the Sake of the Kids."

The poll also found that 85 percent of respondents believed a judge in such a situation should step down from hearing a case involving a major campaign supporter.

Benjamin -- in a Massey appeal trying to overturn a $50 million circuit court verdict against it -- twice refused to step aside from hearing the case, arguing he could be impartial. The court overturned the verdict on two occasions.

Another 81 percent of the poll respondents believed that it shouldn't be up to the judge whether or not he or she stepped aside in a case involving a major campaign supporter.

The West Virginia Supreme Court, like the U.S. Supreme Court, leaves that decision up to the individual members of the court when there is a request for recusal filed.

The poll was conducted between Feb. 12 and Feb. 15 among 1,006 adults over the age of 18.

Charles Hall with Justice at Stake said the poll shows a need for reform to restore public confidence in courts.

"Independent groups often are the biggest money engines in judicial elections," Hall said. "Our nation's most senior state supreme court justices believe these expenditures can create a likelihood or appearance of bias and therefore need to be addressed by the courts."

Hall said a number of reforms could be enacted to remedy the situation, like creating a "recusal court" made up of a panel of judges who would decide whether a peer should hear a certain case.

Some observers have indicated that it was Benjamin's campaign's ad that showed footage of McGraw giving an angry, politics-laden speech at a 2004 Labor Day Democratic rally in Boone County. Benjamin, himself, has pointed to that ad as the decisive factor in his win.

But Hall believes the influence of Blankenship's campaign can't be ignored.

"In 2008, four of the five most expensive ad campaigns were run by independent groups," Hall said. "It is possible, indeed likely in Justice Benjamin's case, that he owes his election to the extraordinary financial weight of Don Blankenship's campaign."

Blankenship, while saying his ads targeting McGraw certianly damaged the candidate, told the New York Times earlier this month that he did not run his campaign to gain favor with Benjamin.

He said he did it to remove a justice whom he believes was unfair to corporate defendants.

Blankenship told the Times that the notion he "bought" Benjamin's favor with the campaign is wrong.

"I've been around West Virginia long enough to know that politicians don't stay bought, particularly ones that are going to be in office for 12 years," Blankenship was quoted as saying. "So I would never go out and spend money to try to gain favor with a politician. Eliminating a bad politician mades sense. Electing somebody hoping he's going to be in your favor doesn't make any sense at all."

Steve Cohen, executive director of West Virginia Citizens Against Lawsuit Abuse, said he agrees there needs to be a broad discussion on judicial recusal. But the discussion has to go both ways.

"One thing is certain: There needs to be a balanced discussion about the role of campaign contributions and judicial recusal for all litigants involved, and not just one," Cohen said. "Personal injury lawyers have given millions in direct campaign contributions to state Supreme Court justices over the past decade."

Cohen alleged that the campaigns of Justices Margaret Workman and Menis Ketchum -– both elected in November -– benefited by about $300,000 in donations from plaintiffs lawyers.

"And yet, there have been no similar calls for recusal despite the fact that several direct campaign contributors currently have cases pending before the Supreme Court," Cohen said. "This discussion can address the difficulties of reconciling judicial selection with First Amendment protections."

Arguments in the U.S. Supreme Court case –- Caperton v. Massey –- will be heard on March 3. A number of groups -– including Justice at Stake -- former jurists and public officials have weighed in with briefs on both sides of the issue. It's arguably one of the most-watched cases in the legal community.

Meanwhile, Gov. Joe Manchin during his State of the State address, announced he would create a commission to study possible changes to the state's court system. One possible study topic would be whether to change the way the state selects its judges and justices.

Currently, they are seated through partisan elections.

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