Ethics

This is a continuation of guest blogger Alex Long's first post on Caperton, which can be found here.

(6) It wasn?t just the general election that was ugly.  The Democratic primary, in which McGraw was challenged by circuit court judge Jim Rowe, also got ugly.  Rowe was backed by the Chamber of Commerce and reportedly spent over $800,000 in the primary. The race proved to be closer than a lot of people initially thought would be the case, with both men trading tough charges.  According to an April 4, 2004 article in the Charleston Gazette, one of McGraw?s allies on the court, Justice Starcher, actually heckled Rowe from the crowd during a judicial forum.  For a while, McGraw supposedly referred to Rowe on the campaign trail as ?Jim Crow.?  Benjamin later accused McGraw?s campaign of distributing Rowe campaign buttons with the letter ?C? added to the front of Rowe?s name.   McGraw said he was simply misunderstood when he pronounced Rowe?s name and that the mix up was due to his thick accent.

(7) Brent Benjamin and Warren McGraw weren?t the only ones to get tripped up by the Massey-Caperton conflict.  Sometimes overlooked is the fact that the Caperton-Massey-Benjamin-McGraw brouhaha also contributed to Justice Elliot ?Spike? Maynard losing his reelection bid.  Maynard was a longtime friend of Massey CEO Don Blankenship.  Despite this, he refused to recuse himself in the Caperton-Massey matter.  However, when photos of the two men vacationing together in Monte Carlo   surfaced (Maynard said they were traveling separately), he came under renewed pressure and eventually bowed out of the case.  The controversy stemming from the photos is believed to have contributed to Maynard?s loss in the Democratic primary.  Justice Starcher also eventually recused himself after publicly referring to Blankenship as ?stupid? and ?a clown.?  Massey?s lawyers also filed suit to enforce a Freedom of Information Act request seeking any of Starcher?s emails that referred to Massey or Blankenship.   (Justice Maynard had to endure a similar indignity as a result of an AP FOIA request.)  Starcher ultimately decided not to run for reelection following all of this drama, although I don?t know if one thing had anything to do with other. 

(8) Benjamin has consistently voted against Massey?s interests since taking office.  Or so says a press release from the West Virginia Supreme Court of Appeals.  Actually, it?s a little more complicated than that.  Just prior to oral arguments, Massey?s lawyers sought to file a supplemental brief containing a summary of Justice Benjamin?s voting record in cases affecting Massey?s interests that purported to show that Benjamin voted against Massey?s interests nearly 82% of the time.  Those votes, according to the summary, ?represented votes against the financial interests of Massey Energy of approximately $317 million.?  I?m not sure of the relevance of any of the following, but, hey, I?ll report, and let you decide:  According to the summary, from January 1, 2005 to December 31, 2008, Benjamin voted on 19 matters involving Massey or a subsidiary.  Three of those were petitions seeking extraordinary relief.  Benjamin voted to deny Massey?s petition in each of those cases, but, then again, so did all of the other participating justices.  Nothing surprising about those results since these were petitions for writs of extraordinary relief.  Eleven of the votes involved petitions for review by the full court.  But again, not surprisingly, the justices were generally in agreement on these petitions and they usually voted against granting them:  there were only two petitions that produced 3-2 splits.  Benjamin voted in five cases that were determined by full opinions.    In these, he only voted in favor of Massey?s interests one time (Caperton, of course).  Of the remaining four, two resulted in 5-0 opinions, one a 4-1 opinion (with Benjamin in the majority), and a somewhat complicated 3-1-1 decision (with Benjamin?s vote being the complicated one).  As pointed out by Caperton?s lawyers in their brief in opposition to Massey?s attempt to introduce this summary in the Supreme Court case, in the only matters in which Benjamin?s vote was outcome determinative (and there were only two out of 19 if I?m reading it correctly), Benjamin voted in favor of Massey?s interests.

(9) Contrary to Massey?s representation to the Supreme Court, Blankenship and Benjamin did know each other before and after the election.  In the Respondents? Brief, Massey stated that there was ?no indication that Blankenship and Justice Benjamin even knew one another, before or after the election.?  Justice Scalia raised this same point himself during oral argument (Trans. at 7), and Andrew Frey, Massey?s attorney, said during oral argument that Benjamin ?has no personal connection with the parties or their counsel.?  (Trans. at 30.)  Massey?s brief also stated that there was no indication ?that Benjamin solicited or encouraged Blankenship?s activities.?  However, in an interview conducted prior to oral arguments, Blankenship is quoted by the New York Times as saying that he had met Benjamin before the election while raising money to defeat McGraw because he figured that if he wanted to defeat McGraw, he ?ought to know who?s running against him.?   And on February 15, 2009, the Charleston Gazette reported that the two men met for dinner on March 30, 2006 (after the election), along with Justice Maynard and the vice president of the West Virginia Coal Association.  According to the article, that was six days before Massey asked the court to set aside a ruling by the trial judge in the $50 million Caperton case that raised the post-trial bond and eleven days before Benjamin and Maynard voted to grant that motion.  It was a little over a year and a half before the West Virginia Supreme Court of Appeals voted 3-2 (Benjamin and Maynard on the majority side) to reverse the $50 million jury verdict.  There isn?t enough information presented in the Times article to suggest that Benjamin ?solicited or encouraged? Blankenship?s activities. (Of course, if he had done so, he might have been in violation of West Virginia?s Canon of Judicial Conduct.  See W. Va. Canon of Judicial Conduct Canon 5(C)(2) (?A candidate shall not personally solicit or accept campaign contributions or personally solicit publicly stated support.?)).  And if, by saying Benjamin had ?no personal connection with the parties,? Frey meant that ?they weren?t buddies,? (to use Justice Scalia?s words), that seems true enough.  (That statement might also literally be true since Blankenship wasn?t technically ?a party? in the case.)  However, contrary to the statement in Massey?s brief, the two men did, in fact, know each other, even if only on a limited basis.  Massey?s attorney, Frey, has since said he didn?t know about these meetings when the brief was filed. I am unable to find any supplemental briefs in Westlaw to suggest that the attorneys for Massey have notified the Supreme Court of the misstatement contained in the brief (although the misstatement was pointed out by the lawyers for Caperton in a supplemental brief).  I?d be curious what others think as to whether Massey?s lawyers have a duty to clarify their statement in the brief and during argument.

(10) On the surface at least, things seem to be changing for the better (at least a little and at least for now).  Did I include enough qualifiers?  Here, maybe somebody who is a more active active member of the West Virginia bar than I am can add some perspective.   There is definitely a strong federalism theme running through the arguments in this case.  One of the arguments against constitutionalizing a disqualification standard is that states are better positioned to respond to the complexities and eccentricities in their own states than is the Court.  In their amicus brief in Caperton, Professors Ronald D. Rotunda and Michael R. Dimino actually cite West Virginia?s decision to limit contributions to 527 organizations in response to the Benjamin-McGraw race as an example.    In addition, at least from outward appearances, the West Virginia Supreme Court of Appeals now gives the impression of being less fractured.  Since Justices McGraw, Starcher, and Maynard have left the bench, the court has issued far more unanimous decisions than it had in recent years.  However, there is also reason for caution.  A recent death on the court caused the governor to appoint a temporary replacement, retired Justice Thomas McHugh.  McHugh?s term ends next year, so ?West Virginians can look forward to another judicial election coming soon!