Ethics

Professor Alex Long has passed along this wonderful post in anticipation of the Supreme Court's decision in the Caperton case:

Thanks to Andrew Perlman, who invited me to blog a little about the Caperton v. A.T. Massey Coal Co. case now pending in front of the Supreme Court.   I imagine most readers are more or less familiar with the gist of Caperton.  There has been a good bit of mainstream media coverage of this case since the facts really do read like something out of a John Grisham novel.  In a nutshell, the CEO (Don Blankenship) of a coal company (Massey) spent about $3 million to help unseat Justice Warren McGraw of the West Virginia Supreme Court of Appeals.  The newly elected justice, Brent Benjamin, refused to disqualify himself in Massey?s appeal of a $50 million fraud verdict and ultimately voted in Massey?s favor in a 3-2 decision.   The Supreme Court heard arguments in March as to whether there was a violation of the other side?s Due Process rights resulting from Benjamin?s failure to recuse, so a decision may be out soon.

To help pass the time before the Court delivers its opinion, I thought I?d do a series of posts on the case.  I?ll start here with Part 1 of my attempt to pass along a little in the way of background on the case and on judicial selection in West Virginia.  Note:  As far as I know, I don?t know anybody having anything to do with the West Virginia Supreme Court of Appeals, so there shouldn?t be anything too ?inside baseball? about this.  I just maintain an interest in the case based on the fact that I used to live in the state, am still a member of the bar there, and wrote an article on the subject of judicial selection in West Virginia many moons ago.  So, here are five (with five more to come) slightly less well-known facts about judicial selection in West Virginia and the Caperton case that may help to put the whole mess into context:

(1)   West Virginia has always elected its judges.  Back when what-would-become West Virginia was still a part of Virginia, there was a lot of resentment in the western part of the state about the fact that the legislature (which was, historically, controlled by eastern interests) appointed all of the judges in the state.  There was a brief period just prior to the Civil War in which western interests were able to amend the state constitution to allow for popular election of judges.  Once the ruffians from West Virginia split off and Reconstruction ended, Virginia went back to a system of legislative appointment.  West Virginia adopted the system of partisan election that has remained in place through today.

(2)  It?s not easy being a Republican judge in West Virginia.  Or at least it didn?t use to be.  Brent Benjamin was the first Republican elected to the West Virginia Supreme Court of Appeals in over 70 years.

(3)  Things were ugly on the West Virginia Supreme Court of Appeals long before Brent Benjamin ran for office.  There was a nasty split on the court prior to the Benjamin-McGraw race that helped contribute to the poisonous atmosphere that permeated the campaign.  Part of the split stemmed from an earlier dispute involving McGraw.  McGraw was originally elected in 1998 to fill the unexpired term of another justice who had resigned.  That term was due to expire in 2004.  Early in his term, McGraw sought to trade up and become a candidate for a different seat with a twelve-year term.  The result was State ex rel. Carenbauer v. Hechler, 542 S.E.2d 405 (W.Va. 2000), a case challenging the legality of McGraw?s actions.  Two other members of the court disqualified themselves in the case, but the most conservative,   Justice Elliot ?Spike? Maynard, and the most liberal, Justice Larry Starcher, did not.  Maynard wrote the majority opinion that held that McGraw was stuck with his original term.  In his dissenting opinion, Starcher (responding directly to comments Maynard had made in a speech to the Federalist Society) charged that the majority had ?successfully assisted the Hilton Head/Lincoln Navigator crowd in hijacking an election from the Myrtle Beach/pickup truck folks.?  

(4) The general election contest involving Benjamin and McGraw was ugly.  You probably already knew that.  But the details are still pretty bizarre.  The most infamous tv ad accused McGraw of letting ?a child rapist go free to work in schools? when McGraw joined a 3-2 majority to grant probation for a convicted sex offender. (See here and here.)  The race was so ugly that McGraw later filed (what I think was) a tort claim of false light based on the ads.  But McGraw gave Benjamin plenty to work with too (as this video, known as the ?Rant from Racine? demonstrates, and some of what McGraw and his supporters said was fairly ugly in its own right.   

(5) Massey?s CEO did it all ?for the sake of the kids.?  Many of the 2004 anti-McGraw ads were paid for by a 527 group called ?? and for the sake of the Kids,? a group established by Massey CEO Don Blankenship.  The group?s now-dormant website explains that ?the politicians have been putting themselves first for too long, [so] West Virginia must demand change ? for the sake of the kids.?  According to a November 8, 2006 Charleston Gazette article, Blankenship spent over $2 million in 2006 supporting other political candidates in West Virginia, but had less success than he did in helping to unseat McGraw in 2004.    However, with McGraw defeated and McGraw ally Justice Larry Starcher deciding not to run for reelection (see infra), Blankenship was quoted in a February 21, 2008 Charleston Daily Mail article as saying he saw no reason to be involved in the 2008 judicial election.  In 2004, after being challenged on whether his targeting of McGraw was really ?for the sake of the kids,? Blankenship promised to establish a charity that would ?provide needed clothing and other necessities to the most needy children of  West Virginia.?  An April 10, 2005 Charleston Gazette article notes that the charity had not yet gotten off the ground.  Nothing at the www.andforthesakeofthekids.com  website suggests it ever did.

See the rest of the list here.