THEIR VIEW: Supreme Court muddies water in Benjamin decision

By The West Virginia Record | Jun 18, 2009


MORGANTOWN -- The United States Supreme Court's decision that West Virginia Supreme Court Justice Brent Benjamin should have stepped aside in cases involving Massey Energy resolves that particular issue, but it opens the door to many more disputes over when a judge should recuse himself.

The high court's 5-4 decision found that the mere perception of partiality can violate the due process rights of a litigant. In this case, Massey Energy CEO Don Blankenship's personal investment of $3 million to defeat Justice Warren McGraw and thus help Benjamin get elected creates "an extraordinary situation where the Constitution requires recusal."

The decision stemmed from the West Virginia Supreme Court's 3-2 ruling (Benjamin voting with the majority) to throw out a verdict against Massey that would have cost the company more than $80 million. The plaintiff, Hugh Caperton and Harman mining, appealed to the U.S. Supreme Court claiming Benjamin should not have heard the case because he could not be impartial.

Interestingly, U.S. Supreme Court Justice Anthony Kennedy, who wrote the majority opinion, said "We do not question his (Justice Benjamin's) impartiality and propriety. Nor do we determine whether there was actual bias."

In fact, Benjamin had ruled against Massey 81 percent of the time, so the evidence would support the argument that Blankenship's involvement in the 2004 Supreme Court race did not curry favor with Benjamin.

Instead the high court said in this case the risk of bias was enough to strike him from the case. Kennedy added, referring to an earlier case, that this unconstitutional probability of bias "cannot be defined with precision."

That sounds like a formal version of how in 1964 Justice Potter Stewart described hard-core pornography: "I know it when I see it."

In his dissent, Justice John Roberts launched into Kennedy's assessment that the probability of bias cannot be defined "in any limited way." So then, Roberts asks, what rules are judges and litigants supposed to follow in determining whether a judge can remain impartial?

Roberts outlines no fewer than 40 questions that are likely to arise when these kinds of cases come up in the future. His first questions are the most intriguing: "How much money is too much money? What level of contribution or expenditure gives rise to a 'probability of bias?'"

Subjectivity will fill in the sprawling gaps left by the court's unwillingness to be more specific.

I came up with a couple of my own questions.

If Warren McGraw had defeated Brent Benjamin in 2004 despite Blankenship's spending, would McGraw have been forced to recuse himself is cases involving Massey Energy?

Would McGraw's unhinged tirade at a United Mine Workers rally in Boone County have created the "probability of bias" when cases involving the UMWA or labor unions came before the court?

The answer is, using the U.S. Supreme Court's decision, the argument could legitimately be made that McGraw's perceived partiality would violate due process.

As Justice Roberts concluded, the high court's decision will lead to more allegations that judges are bias even when those allegations are groundless. And "The end result will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case."

Kercheval is vice president of operations for MetroNews and the host of Talkline, which has become a signature program of the network.

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