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High court agrees to hear judicial-ethics case

By The Associated Press
11.17.08

WASHINGTON — The Supreme Court has stepped into a sensitive dispute over a state judge's decision to participate in a case that involved a key campaign supporter.

The justices typically avoid cases about judicial ethics, but they agreed on Nov. 14 to review the actions of a West Virginia Supreme Court justice whose vote overturned a $50 million verdict against a company that is run by the most generous backer of his election.

The high court's decision to hear the case comes amid growing concern over the role of money in electing state judges. Campaign spending on state Supreme Court elections rose by 25% to nearly $20 million from 2006 to 2008, according to a national justice reform group.

Don Blankenship, the chief executive of Massey Energy Co., spent more than $3 million to help elect Justice Brent Benjamin to the West Virginia high court. Benjamin twice was part of 3-2 majorities that threw out a verdict in favor of Harman Mining Co. in its coal contract dispute with Massey.

Harman said Benjamin's participation in the case created an appearance of bias strong enough to violate its constitutional rights.

The American Bar Association and other legal ethics groups have taken Harman's side.

In earlier cases, the U.S. Supreme Court has said that judges must avoid even the appearance of bias.

Benjamin repeatedly rejected calls to recuse himself from the case when it was before the state high court. He has since said that he fairly judged the dispute.

Benjamin issued a lengthy defense of his actions, pointing out that he had no financial interest in the outcome of the case and the campaign money went to an independent group, not his campaign. He had no comment on Nov. 14 after the Court accepted the case for review.

Shane Harvey, Massey vice president and general counsel, said, "We are confident that the Harman case was properly decided by the West Virginia Supreme Court."

David Fawcett, a Pittsburgh attorney who represents Harman and its founder, Hugh Caperton, said, "The question at issue here is central to the future of our court system." Former Solicitor General Theodore Olson is to argue the case for Caperton at the Supreme Court, probably in March or April.

Retired Supreme Court Justice Sandra Day O'Connor has not commented on the West Virginia dispute, but she has bemoaned the role of money in state judicial elections.

"There is too much special interest money and influence in state court elections," O'Connor said recently. "It endangers the public's faith in the justice system. If courts are going to stay impartial, leaders in every state need to get moving on reforms."

Former Colorado Supreme Court Justice Rebecca Love Kourlis, an advocate for ending partisan election of judges, said the case may get "people to pay attention to the problems partisan fundraising creates." Kourlis is executive director of the Institute for the Advancement of the American Legal System at the University of Denver, which provided the figures on spending in judicial elections.

The Supreme Court case stems from a jury verdict in 2002 that concluded Richmond, Va.-based Massey hijacked a coal supply contract from Harman, plunging both it and Caperton into bankruptcy.

Massey contended Harman filed for bankruptcy because of mounting losses at a mining facility and other problems that had nothing to do with Massey.

The case is Caperton v. Massey, 08-22.


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