March 4, 2009 · The U.S. Supreme Court heard arguments Tuesday morning in a West Virginia case that could set new ethical standards for judges across the country.
From the opening arguments, some legal oberservers believe this could be a split decision, perhaps even a 5-4 vote.
Coal company owner Hugh Caperton took the case to the U.S. Supreme Court after state justice Brent Benjamin refused to step down from a case between Caperton and A.T. Massey Coal Company.
The state high court voted 3-2 to overturn a jury verdict that awarded Caperton $50 million in a lawsuit.
Hugh Caperton’s attorney Ted Olson had barely begun laying out his argument Tuesday morning before Justice Antonin Scalia began peppering him with questions and comments.
It didn’t take long for Chief Justice John G. Roberts to chime in asking what percentage of bias a judge could or could not have.
Arguments before the U.S. Supreme Court at times seem more like spirited debate than a presentation with justices asking questions, making observation and citing case law.
Both attorneys faced a lively exchange as they tried to convince the nine justices to rule in their favor.
A-T Massey’s attorney Andy Frey argued that states, not the federal court, should set guidelines for when judges need to recuse themselves. Frey also told the justices that in this case, Justice Brent Benjamin did not need to step aside because he didn’t benefit from the money Don Blankenship spent during the 2004 election.
“Benjamin has done or said nothing that would lead you to think that he would be biased,” Frey said. “He doesn’t know Blankenship. He has no connection to Massey or indeed to Caperton, neither party.”
During oral arguments Frey told the justices that Benjamin had no control over how much Blankenship spent.
Frey says other factors also contributed to Benjamin’s win including bad publicity against his opponent Warren McGraw, endorsements for Benjamin from most of the state’s newspapers and support from the business community.
And Frey doesn’t believe campaign spending by one person or a group should be used to measure a judge’s impartiality.
“What difference does it make whether it’s one person or a group to whom you’re beholden?” Frey asked. “If you’re going to say that a judge is beholden to people who have provided substantial support for his election, then Justice McGraw is beholden to the plaintiffs’ lawyers and when those lawyers appear before him there’s every bit as much probability of bias.”
Frey maintains that states and not the Federal court should be responsible for making the rules.
“If they think there’s a problem they could pass a statute like Alabama has saying if you’ve received contributions of more than a certain amount, or if somebody has expended more than a certain amount, the judge has to recuse himself, or herself,” Frey said.
Caperton attorney Ted Olson disagrees.
“What we’re concerned about is that there’s the appearance of justice for sale,” Olson said.
Olson suggested that judges apply a simple test to determine whether they should recuse themselves from hearing a case.
“The test is, if you’re going to go into court against someone on the other side, and if they with their pocketbook are the one to put that judge, are you thinking that you are going to get a fair trial?” Frey asked. “Then it’s not a fair trial and due process is being violated,” he concluded.
Olson encouraged the Justices to set standards that guide judges in determining whether there’s an appearance of bias.
Massey CEO Don Blankenship did not attend the arguments.
But Hugh Caperton was there. Afterwards Caperton expressed concern about the increasing amount of money being spent in judicial races and the affect it might have on judges’ decisions.
“Well I’m concerned about the justice system if we lose,” Caperton said. “I think this is something that’s going to spiral out of control. It think it’s going to get worse and I think it’s basically going to tell judges and people that donate to their campaigns that its open season.”
It will be several months before the U.S. Supreme Court issues a decision. A transcript of Tuesday’s arguments is available on the U. S. Supreme Court web site. http://www.supremecourtus.gov/
Some legal observers believe Justices Roberts, Scalia, Thomas and Alito are likely to agree with Massey’s lawyers that a due-process test is unworkable and that individual states and judges should deal with recusals.
Meanwhile, Justice John Paul Stevens is likely to lead Justices Breyer, Ginsburg and Souter in arguing for some sort of due-process test – a constitutional floor offering some guidelines to lower courts.
As in many cases, the swing vote may be Justice Anthony Kennedy, who asked tough questions of lawyers on both sides of the case.
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