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Case May Define When a Judge Must Recuse Self

At issue: Could Justice Brent Benjamin have been impartial?
At issue: Could Justice Brent Benjamin have been impartial? (Bob Bird - AP)
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By Robert Barnes
Washington Post Staff Writer
Monday, March 2, 2009

BECKLEY, W.Va. -- Hugh Caperton was born into the coal business, but for more than a decade he has spent more time in a courthouse than in a mine. The complex, intrigue-filled legal tale he will present to the Supreme Court this week was literally enough to spawn a suspense novel, but it boils down to this:

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Caperton and his little coal company sued a huge coal company on claims that it unlawfully drove him out of business, and a jury agreed, awarding him $50 million.

That company's chief executive vowed an appeal to the West Virginia Supreme Court -- but first, he spent an unprecedented $3 million to persuade voters to get rid of a justice he didn't like and elect one he did.

That justice provided the decisive vote in overturning Caperton's multimillion-dollar award.

And the case raises profound questions about the way Americans elect their judges, the duty of judges to recuse themselves when the people who bankrolled their campaigns come before them and, even, the very meaning of judicial impartiality.

The facts are so compelling that John Grisham used them as a basis for his bestseller "The Appeal." On opposing sides during oral arguments Tuesday will be two of the court's most prolific and persuasive practitioners, former solicitor general Theodore B. Olson and Andrew L. Frey.

But the implications go far beyond West Virginia, energizing critics of the multimillion-dollar political campaigns that are now the norm in many of the 39 states that elect judges, where no-holds-barred television advertising has replaced the staid and polite debates of the past. Among the outpouring of supporters for Caperton are a number of unlikely compatriots -- Wal-Mart siding with the Brennan Center for Justice at the New York University School of Law, for instance.

"It's about the fundamental responsibility of the judiciary: a fair hearing before an impartial arbiter," said James Sample of the Brennan Center. "This is a fact-bound, multi-factor, worst-of-the-worst scenario; if any sort of floor exists for due process, this is the best case to plumb those depths."

But the facts, according to Caperton's nemesis, Don Blankenship, chief executive of A.T. Massey Coal Co., are these: Blankenship made lawful contributions to and on behalf of now-Justice Brent Benjamin. As in other political causes he has supported, he has a right to his political views about who is best to serve on the West Virginia Supreme Court.

And there is no evidence that Benjamin had anything to gain financially from the dispute between Caperton and Blankenship, the only reason for recusal the Supreme Court until now has recognized.

Blankenship attorney Frey, in his brief to the court, rejects arguments from Caperton that Benjamin had an obligation to recuse himself because of bias or "the probability of bias" or because he owed Blankenship a "debt of gratitude."

"Such a theory . . . would have no limiting principle, would be entirely unworkable and would create serious administrative problems for courts," Frey wrote.

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