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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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Benjamin, the first non-incumbent Republican elected to the court since the 1920s, declined to recuse himself when Blankenship's appeal reached the court. "No objective information is advanced to show that this justice has a bias for or against any litigant . . . or that this justice will be anything but fair and impartial," he wrote.

So when Caperton entered the court that day and looked at the five justices who would decide his case, he saw one whose campaign was financed by Blankenship and another rumored to be one of Blankenship's best friends.

"I'm not thinking due process and I'm not thinking 14th Amendment; as a citizen I'm sitting there saying, 'How in the world? I've got two votes against me and we haven't even started yet,' " Caperton said.

The court reversed the award, 3 to 2, saying among other things that the suit was not filed in the proper jurisdiction.

But that was only the beginning of what became something of a meltdown on the West Virginia Supreme Court.

Caperton's attorney received photos of Blankenship and Justice Elliott "Spike" Maynard, the one with whom he was rumored to be friendly, at a dinner on vacation on the French Riviera. And Justice Larry Starcher was quoted in the New York Times saying Blankenship's bankrolling of Benjamin's campaign made him want to "puke."

A rehearing was scheduled, with two circuit judges taking the places of Maynard and Starcher. The vote again was 3-2, with Benjamin again casting the decisive vote.

"I just want a hearing in front of an impartial court of justices," Caperton said, and his petition asks for a remand to the West Virginia Supreme Court, without Benjamin.

Caperton has drawn lopsided support in the case from legal and business groups, as well as those who worry about the role money now plays in judicial elections.

Wal-Mart joined with Lockheed Martin, Pepsi and other corporations on Caperton's side, telling the court in a brief that requiring Benjamin's recusal "would signal to businesses and the general public that judicial decisions cannot be bought and sold."

Justice at Stake, a judicial reform group that has been sounding the alarm about the role of money in judges' races, notes that the amount of money raised by state supreme court candidates from 2000 to 2007 was almost $168 million, nearly double that raised during the 1990s. Former Supreme Court justice Sandra Day O'Connor is among those sharply critical of those elections.

The Justice at Stake brief, joined by Common Cause, the League of Women Voters and a host of others, warns the court that it would "weaken state reform efforts" to find no "constitutionally significant threat to equal justice" in the case.

Frey said the real goal of those lined up against his client is their desire that judges be appointed, not elected. "I'm no fan of judicial elections either, but it's not the job of the Supreme Court" to decide that, Frey said.

The other side, Frey said, would erase the "presumption that a judge really will be impartial." And he said that in all the briefs filed on behalf of his opponent, no one proposes a clear line for what level of support -- be it financial or editorial or even gratitude to the chief executive who appointed a judge -- to call that presumption of impartiality into question.

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