Federalist Society explores impact of Caperton decision

By John O'Brien | Apr 27, 2010


WASHINGTON (Legal Newsline) - Though Hugh Caperton ultimately lost his $50 million case against Massey Energy, the case is beginning to have an effect on how several states view judicial recusal standards, a new publication by the Federalist Society says.

Caperton and his Harman Mining Co. won the $50 million award in a West Virginia court before the state Supreme Court overturned it three times. Along the way, the U.S. Supreme Court ruled last year that state Supreme Court Justice Brent Benjamin should have recused himself because of campaign support he received from Massey CEO Don Blankenship in 2004.

"Before this ruling, the 14th Amendment required recusal only when the judge had a financial interest contingent on the outcome of the case, or if the judge had participated in a previous stage of the case and was likely biased from that participation," an article in the Federalist Society's spring issue of State Court Docket Watch says.

Attorney Stephen Klein authored the article. It makes mention of the impact the ruling has had on eight states.

In Nevada, the state Judicial Conduct Code Commission recommended the adoption of a new rule that mandates a judge's disqualification during cases involving parties that have spent $50,000 for campaign support.

In Washington, the Supreme Court Code of Judicial Conduct Task Force published a proposal that would require disqualification when "an adverse party has provide financials upport... for any of the judge's judicial election campaigns within the last six years in an amount excess of 10 times the dollar amount of the campaign contribution limit established by (law)."

In Michigan, the state Supreme Court amended court rules in adherance with the Caperton decision but did not set a specific contribution amount, much like the U.S. Supreme Court did not set a specific amount.

In California, the Commission for Impartial Courts issued a report that recommended disqualification for a judge involving a party who has indirectly or directly donated $1,500 to the judge's campaign.

In Wisconsin, the state Supreme Court adopted a rule that says "campaign donations from people and groups with cases before the court are not, by themselves, enough to force judges off cases."

In Florida, a joint effort of the Judicial Ethics Advisory Committee and the Rules of Judicial Administration and Ethics Committee are considering new recusal standards.

In Georgia, a bill was introduced that required recusal of cases involving parties or attorneys that made "an influential action concerning a campaign of the judge presiding over the party's case during the election of such judge." It did not pass.

In Montana, a bill was introduced that required recusal in cases involving parties that spent more in campaign support than is allowed for direct contributions. It also did not pass.

"The legal community will continue to debate whether the decision is a benefit or a detriment to the judiciary, but there can be little doubt as to its impact," Klein wrote.

"The president of the (American Bar Association) contends Caperton is not 'the final word on this issue' of judicial recusal. Given the myriad responses of states — by courts, committees, legislatures and scholars — to where judicial campaign finance support ends and undue influence begins, Caperton is likely just the beginning of a discussion for a new paradigm for judicial recusal."

West Virginia, too, was affected by the case. A pilot program that will publicly finance elections for two Supreme Court seats in 2012 is in place.

"One thing that I am proud of is that through our efforts to bring Massey to justice, we have raised the consciousness of the citizens of West Virginia about how critical it is for us to get money out of judicial elections so that we can put the blindfold back on Lady Justice in our great state," Caperton told the West Virginia Record in March.

Caperton's case involved a coal supply agreement. A 3-2 decision in 2007 in favor of Massey overturned the verdict before Caperton complained about the relationship between Blankenship and then-Justice Spike Maynard. The two, lifelong friends, had been photographed together in Monaco, where they claim they had been vacationing separately at the same time.

In March 2008, the justices (minus Maynard) again voted 3-2 in favor of Massey, and Caperton complained that Benjamin shouldn't have participated because Blankenship spent millions of dollars supporting his 2004 campaign.

The issue came before the U.S. Supreme Court in March 2009, and it ruled in a 5-4 vote that Benjamin should have recused himself, setting the stage for a third decision.

That decision, like the other two, focused on a forum-selection clause in a coal supply contract between the two parties. It said all disputes arising from the contract must be brought in a county in Virginia.

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