Supreme Court case with the feel of a best seller

By Joan Biskupic
USA Today

February 16, 2009

BECKLEY, W.Va. — In a small town, a local resident claims wrongdoing by a big corporation and wins a multimillion-dollar award after a jury trial. The corporation's CEO then pumps enough campaign money into a judicial election to get a new judge on the state supreme court. During an appeal, that judge casts a critical vote siding with the corporation — and reversing the resident's victory.

Sound like the plot of a John Grisham novel?

It is — his 2008 best seller, The Appeal. But it also resembles a real dispute between West Virginia coal mining rivals that now is before the U.S. Supreme Court. The decade-long dispute, a reflection of the growing questions surrounding judicial elections, tests whether an elected judge's refusal to take himself off a case involving a chief financial backer is unconstitutional.

The Supreme Court case of Caperton v. A.T. Massey Coal began when Donald Blankenship, chairman and CEO of Massey, lost a $50 million verdict in a fraud lawsuit brought by Hugh Caperton and his small, independent Harman Mining Co. over the cancellation of a long-term coal contract.

As the case moved toward appeals, Blankenship contributed $3 million to help unseat incumbent Democratic Judge Warren McGraw in his race against a Republican, Charleston lawyer Brent Benjamin — 60% of the total spent in favor of Benjamin and against McGraw. Benjamin won. Three years later, when Massey's appeal got to the West Virginia Supreme Court, Benjamin cast a crucial vote to overturn the verdict that had favored Caperton.

"I remember looking up at a judge who had just gotten $3 million … to be elected and thinking, 'How in the world is this fair?' " Caperton says, recalling a state Supreme Court hearing that led to the reversal of his victory.

The notion of impartial judges is central to the U.S. legal system, and the West Virginia case — to be heard by the high court March 3 — has become Exhibit A in the debate over how high-dollar state judicial elections can raise questions about the fairness of some rulings.

A USA TODAY/Gallup Poll this month found 89% of those surveyed believe the influence of campaign contributions on judges' rulings is a problem, and 52% deem it a "major" problem. More than 90% of the 1,027 adults surveyed said judges should be removed from a case if it involves an individual or group that contributed to the judge's election campaign.

The West Virginia dispute spotlights the dramatic rise in campaign money in judicial elections. From 2000 to 2007, $168 million was spent on contested elections for states' highest courts, up from $87 million from 1990 to 1999, reports the New York-based Brennan Center for Justice, a legal group siding with Caperton.

Retired U.S. justice Sandra Day O'Connor, who often speaks about judicial independence, has referred to the caseas an example of possible courtroom bias. More than 40 groups, including the American Bar Association, have weighed in with 11 "friend of the court" briefs supporting Caperton.

Far fewer groups have lined up with Massey. However, seven states have backed Massey in a court filing and urged the justices to let states decide when their judges must disqualify themselves from a case.

Caperton's "attempt to shoehorn" differences in states' judicial policies "into an overarching federal constitutional standard makes little practical sense," the states say.

Thirty-nine states elect at least some of their judges. This differs from federal courts, in which lifetime appointments to the bench are made by the president and confirmed by the U.S. Senate.

The Supreme Court's decision in the West Virginia case could establish new rules for when judges must pull out of a case because of their campaign support. A ruling could make it easier — or more difficult — to challenge judges as potentially biased.

State judicial codes vary over when judges should remove themselves from cases. Many, such as West Virginia, let the judges decide.

Benjamin said the big money that helped get him elected did not go to him directly. It was sent to an independent campaign group that spent millions of dollars to unseat McGraw.

In an opinion explaining why he did not pull out of the case, Benjamin said he had no personal relationship with the people involved and no financial stake in the outcome. (Last month, Benjamin announced he would not take part in any other cases involving Massey until the U.S. Supreme Court rules.)

Attorneys for A.T. Massey Coal, defending the West Virginia Supreme Court ruling in briefs filed with the U.S. Supreme Court, say Blankenship lawfully used his campaign money to try to get rid of an incumbent judge, not to "buy a seat" on the court.

In its own brief, the American Bar Association seeks to change the system. "Few actions jeopardize public trust in the judicial process more than a judge's failure to recuse in a case brought by or against a substantial contributor to the judge's campaign," the group says.

By Steve Brightwell for USA Today
Hugh Caperton saw his $50 million award reversed by the vote of a judge whose campaign was aided by Caperton's foe in court.

A big win in court

Caperton, 53, grew up in the Raleigh County mining town of Slab Fork and aspired to the coal business that was his father's livelihood.

"My first love was coal mining," says Caperton, who took over now-defunct Harman Mining in 1993.

In 1997, large rival Massey — the fourth-largest producer in the country — bought Wellmore Coal Corp. and canceled a contract that Wellmore had with Harman, under which Harman supplied a large Pittsburgh steel mill. Massey then negotiated to buy Harman but suddenly pulled out of the deal.

Caperton sued, alleging fraud, unlawful interference with his business and misrepresentation. A Boone County, W.Va., jury sided with Harman.

"It felt like we had won the Super Bowl and the World Series all at once," Caperton says. (A Virginia jury earlier had awarded $6 million to the Virginia-based Harman in a breach-of-contract case against Wellmore Coal.)

Massey said it would appeal the West Virginia verdict. At the same time, a state judicial election began taking shape. Blankenship's $3 million toward the Benjamin-McGraw race went largely to the independent group And for the Sake of the Kids, which had targeted McGraw.

Blankenship, 58, says he considered McGraw's decisions bad for business.

"I thought West Virginia needed to change its business climate and we needed to do better as a state," he says. Asked whether he was hoping to reverse the $50 million verdict, he says, "I wasn't focusing on Harman at all."

Blankenship likens the millions spent on the judicial race to the money he has poured into business-friendly legislative efforts over the years. He says he had met Benjamin only a few times.

As the case reached the state Supreme Court, Caperton's lawyers asked Benjamin to stay out of it because of Blankenship's support. Benjamin declined, helping to hand Massey a 3-2 victory. The majority said the lawsuit should not have gotten to a West Virginia jury, largely because it already had been heard in Virginia.

Some people following the case, including former West Virginia justice Larry Starcher, who voted against Massey, have noted similarities between the case and The Appeal.

In Grisham's novel, a Mississippi widow sues a chemical company that dumped carcinogens in the water for causing the cancer deaths of her husband and son.

She wins a $41 million verdict. The CEO of the chemical company then finances the election of a judge to the Mississippi Supreme Court, hoping to reverse the verdict. The CEO gets his man on the bench and the verdict is overturned.

In January 2008, when Grisham promoted his book on NBC's Today Show, host Matt Lauer asked whether the plot was plausible.

"It's already happened," Grisham replied. "It happened a few years ago in West Virginia. A guy who owned a coal company got tired of getting sued. He elected his guy to the Supreme Court. … So it happens."

Massey's attorney, Andrew Frey, rejects any comparison to Grisham's fiction.

"This case involves no secret skullduggery of the kind there described, but simply the rough-and-tumble of an open and honest election fight of the kind that goes on all the time in our democratic society," he says.

Blankenship shrugs off the comparison. "I've been attacked in many ways … for what I do in West Virginia," he says. "I get used to the ridicule."

'Bubbling up for a long time'

O'Connor, along with several state and national groups, has tried to call attention in recent years to the threat of big money in judicial elections.

The Conference of Chief Justices, a national group of top state judges, says 60% of all state appellate judges and 80% of trial judges face election. In a brief submitted in Caperton v. Massey supporting neither side, the conference characterizes judicial elections as "high-dollar free-for-alls marked by dueling campaign salvos by organized interest groups, often located outside the state of the election."

The conference said there is national uncertainty about standards for when a judge should step out of a case and urged the justices to set parameters.

Legal analysts say the case comes as pressure is building to provide clarity in the law.

"This has been bubbling up for a long time," says Duquesne University law professor Ken Gormley, noting that some state high courts have allowed challenges to a judge based only on actual proof of bias, such as a judge profiting directly from a ruling. Others have said the appearance of bias may be enough.

The Supreme Court rarely has reviewed disputes over when a judge should be disqualified and has never directly looked at the question in the context of campaign contributions.

In a 1927 case, the court established the basic rule that trials should be conducted by an impartial judge. More recently, the court in 1986 reversed a decision written by an Alabama judge in an insurance dispute because the judge had a stake in a similar lawsuit against the insurer.

The justices have said it is important for citizens to have confidence in the impartiality of judges, yet they have also warned that individual judges should not be susceptible to manipulation to get them off cases.

Caperton is represented by Washington lawyer Theodore Olson, a former U.S. solicitor general in the last Bush administration and a regular before the Supreme Court who often argues for business interests.

Olson says the $3 million that Blankenship spent supporting Benjamin's campaign while pursuing an appeal of his case "created an objective probability that he was biased in favor of Massey."

Arguing for Massey will be Frey, a New York attorney also well-known at the Supreme Court for representing business interests.

"There is no basis in history, precedent, or this court's practice for the notion that 'bias' in general — much less a 'probability of bias' — mandates disqualification," Frey says.

Frey encouraged the justices to consider their own situations. "Justices have passed judgment on the constitutionality of statutes they helped write and reviewed decisions they rendered on lower courts. They hear cases in which their religious views, prior political affiliations or friendships with counsel make it as reasonable as it is here to infer a 'probability of bias,' yet they are generally deemed capable of putting aside those influences."

However the high court rules, the connection to popular fiction is likely to shadow the case.

Last year, Starcher, now retired, criticized Benjamin for not disqualifying himself and blasted Blankenship's "pernicious" influence. He wrote in an opinion, "I believe John Grisham got it right when he said that he simply had to read The Charleston Gazette to get an idea for his next novel."