Judges and Campaign Cash: Will the Supreme Court Weigh In?

A Justice at Stake Issues Backgrounder on Landmark Caperton v. Massey Case
Court Could Take Case Any Time

In 2004, the CEO of a West Virginia mining company spent more than $3 million on TV ads to elect a justice to the state Supreme Court. Once on the bench, Justice Brent D. Benjamin cast the deciding vote to dismiss a $50 million judgment against the company.

The case, Caperton v. Massey, is at the heart of an appeal to the U.S. Supreme Court that could have a major effect on the role of special interest money in state Supreme Court elections. The court could announce as early as Monday, October 20, whether it will accept the case.

At issue: Can judges who receive large campaign donations be forced to step aside from cases affecting those donors?

The case is especially relevant at a time when special interest groups have flooded money into state Supreme Court races. Nationally, $165 million was raised for state Supreme Court races in 1999-2007, compared with $62 million in 1993-1998. Polling by Justice at Stake indicates that more than 3 in 4 Americans believe that campaign cash affects decisions in the courtroom.

Litigant Hugh Caperton, a businessman represented by former U.S. Solicitor General Theodore B. Olson, is arguing that Caperton’s due-process right to an impartial hearing was denied because of his opponent’s assistance to Justice Benjamin’s campaign.

"The improper appearance created by money in judicial elections is one of the most important issues facing our judicial system today," says Olson. "A line needs to be drawn somewhere to prevent a judge from hearing cases involving a person who has made massive campaign contributions to benefit the judge."

A Sept. 7 New York Times editorial urged the U.S. Supreme Court to hear Caperton v. Massey, and laid out the significance of the case. "Situations like the Massey Energy case create an unmistakable impression that justice is for sale."

Facts and Resources

• Justice Benjamin was elected in 2004, defeating incumbent justice Warren McGraw. He was aided by a $3 million television and publicity campaign funded by Don Blankenship, CEO of Massey Energy Corp.
• In 2007, Justice Benjamin rejected three requests by Caperton’s counsel to recuse himself from the case, even though two other justices removed themselves for other conflicts relating to Blankenship. Justice Benjamin voted with a 3-2 majority to overturn a $50 million judgment against Massey.
• In his brief, Olson said the gift created an appearance of bias that required Justice Benjamin to step aside. He quoted an earlier Supreme Court ruling (Peters v. Kiff) that "even if there is no showing of actual bias in the tribunal, . . . due process is denied by circumstances that create the likelihood or the appearance of bias."

In five separate amicus briefs to the U.S. Supreme Court, organizations from across the political spectrum have asked the court to hear the case.    The organizations included five Justice at Stake partners–the American Bar Association, the Committee on Economic Development, the Reform Institute, the Campaign Legal Center, and the Brennan Center for Justice–along with Public Citizen and the Washington Appellate Lawyers Association.

• Justice Benjamin, in turn, filed a 66-page supplemental opinion explaining why he refused to recuse himself. He wrote that "the touchstone of a judicial system’s fairness is actual justice," not the appearance of fairness, which he said could be manipulated through misinformation.
• The notion of toughening recusal standards has gained growing urgency as special interest money plays a growing role in state court elections. At present, many states allow judges to have the last word on whether they are impartial. An April 2008 report by the Brennan Center for Justice discusses possible recusal reforms. The American Bar Association is scheduled to consider new model recusal standards for judges in February 2009; their draft report is available on-line.
• The issue of campaign money has been especially stormy in West Virginia. In May, Chief Justice Elliott Maynard was defeated in a primary after he was photographed with Blankenship while vacationing on the French Riviera.
• Numerous news articles have been written about the Caperton case. They can be accessed at www.gavelgrab.org, Justice at Stake’s daily online journal. Here is a link to blog entries specifically referring to Caperton v. Massey.