Janice A. Oser, Esq.

The story behind a recent U. S. Supreme Court decision had all the elements of a best seller. In fact, it was a best seller. It inspired John Grisham’s 2008 best-selling novel, The Appeal.

The story underlying the court case began with the purchase in 1993 of a dilapidated mine in Appalachia, in Virginia, by one Hugh M. Caperton. The mine was valuable because it yielded a hot-burning and especially pure variety of coal needed by steel mills to make the coke needed in the production process. By the end of 1993, the Caperton mine had quadrupled its previous output and employed 150 union miners in one of the poorest states in the nation.

At this point, Caperton received an offer for the mine from A. T. Massey Coal Co., one of the largest coal producers in the U.S. The offer, according to Caperton, was accompanied by threats by Massey’s CEO, Don L. Blankenship in the event that Caperton refused to sell. Refuse he did, however, until Massey acquired the land surrounding Caperton’s mine and his prime customer, leaving Caperton no way to ship his coal and without a market to ship it to if he could ship it.

Under these circumstances, Caperton agreed, in 1998, to sell the mine. On the day of the closing, however, Massey called the deal off, and Caperton was obliged to file for bankruptcy. Caperton then sued the company in a West Virginia state court on various allegations of fraud and tortious (wrongful) interference with a contract, and won a jury verdict for $50 million.

Both sides knew that the verdict would be appealed up to the West Virginia Supreme Court. As the case moved toward appeals, Blankenship raised around $3 million on behalf of an unknown Charleston lawyer named Brent D. Benjamin, who ran in 2004 for a seat on the West Virginia Supreme Court and was elected.

When the case reached that court, with Benjamin on the bench, Caperton’s lawyers asked Benjamin to disqualify himself from judging the case. He refused, and twice cast the third and deciding vote to reverse the judgment against Massey.

This past June, the U.S. Supreme Court, in a 5-4 decision, reversed the West Virginia Supreme Court. The Court did not determine whether there was actual bias on Judge Benjamin’s part, but concluded that “there is a serious risk of actual bias – based on objective and reasonable perceptions – when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”

The American legal establishment rejoiced at this reaffirmation of the fundamental right to a fair trial before an impartial tribunal under the due process clause of the Constitution. Critics of the decision argued that it amounted to an undue restriction of the First Amendment rights, the freedom of speech, of companies to contribute to election campaigns. The dissenting justices predicted that the decision would generate groundless litigation and undermine confidence in the judiciary.

Justice Kennedy himself wrote that the West Virginia case was “extraordinary” and “extreme,” and that ordinary state judicial ethics rules, rather than the Constitution, would govern most cases concerning money spent in judicial elections.

Thirty-nine states pick judges for their courts through some form of election. (Federal judges are appointed.) A candidate for a seat on the bench has to finance an election campaign somehow, and judicial campaigns have been getting more and more expensive. Lawyers and business interests together account for a considerable portion of the amount raised in campaign donations.

Hence, the question: Can a party to a law suit get a win in court by donating enough money to elect a judge whose vote will be crucial?

Not under the “extraordinary” and “extreme” circumstances of the case brought by Caperton against A. T. Massey. The Court left it up to the states, however, to decide where the line should be drawn.