Supreme Court says judges can't rule in cases involving own big donors

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Supreme Court says judges can't rule in cases involving own big donors

The risk -- and look -- of bias is too great, the Supreme Court decides in

a 5-4 ruling. Chief Justice dissents along with Scalia, and

Alito.

By G. Savage

June 9, 2009

Reporting from Washington -- The U.S. Supreme Court put elected judges on

notice Monday that they must step aside from deciding cases involving

big-money donors who helped them win their jobs.

The decision comes after a decade in which corporate interests and trial

lawyers have waged increasingly costly campaigns for 21 states' supreme

court seats. Most are in the Great Lakes region or the South.

____________________________________

FOR THE RECORD:

Supreme Court: An article in Tuesday's Section A about a Supreme Court

ruling on whether elected judges can be on cases involving their donors said

that in California, Superior Court judges are elected. Most are appointed by

the governor, but they do stand for reelection. —

____________________________________

The justices said Monday that there is a real risk of bias -- and

certainly the appearance of it -- if one side has spent millions to elect the

judge.

" Just as no man is allowed to be a judge in his own cause, " Justice

M. Kennedy wrote for the majority in the _5-4 Supreme Court decision_

(http://www.supremecourtus.gov/opinions/08pdf/08-22.pdf) , so too can fears of

bias arise when " a man chooses the judge in his own cause. "

Case was criticized

The case centered on Don Blankenship, a West Virginia coal company

executive who spent $3 million of his own money to oust one West Virginia

Supreme

Court justice and to elect his replacement.

At the time, Blankenship and his Massey Coal Co. were appealing a

$50-million jury verdict for having driven a small competitor into bankruptcy.

After the election, new Justice Brent cast the deciding vote -- twice

-- to throw out the verdict against Massey.

The case drew wide criticism as a seemingly blatant example of how money

could buy justice, and it suggested the plot for a Grisham novel, " The

Appeal. " The West Virginia case also spotlighted growing concern over the

effect of money in state high court races.

(In California, Superior Court judges are elected, but the governor

appoints state Supreme Court justices.)

The Supreme Court did not set a hard or clear rule for when a judge must

step aside. The four dissenters called the ruling hazy.

But Kennedy said the principle of fairness requires that a judge not

decide cases for a favored benefactor.

" Not every campaign contribution by a litigant or attorney creates a

probability of bias, " Kennedy said. But " when a person with a personal stake in

a particular case had a significant and disproportionate influence " in

putting the judge on the case, that judge would have to step aside, he wrote.

In one sense, the court's ruling puts legal force behind a long-standing

provision in the judicial code that says a judge " shall disqualify himself

in any proceeding in which his impartiality might reasonably be questioned. "

This code applies to all judges, including those on the Supreme Court. But

unlike other judges, its justices alone get to decide whether they have

violated the code.

This issue arose in 2004 when the Sierra Club asked Justice Antonin Scalia

to step aside from deciding a case involving Vice President Dick Cheney

and his energy policy task force. Scalia had gone duck hunting with Cheney in

Louisiana shortly after the court agreed to hear his case.

Scalia refused to step aside, saying that the case involved the office of

the vice president, not Cheney personally.

Dissent, reaction

On Monday, he dissented along with Chief Justice G. Jr. The

ruling in the West Virginia case " will inevitably lead to an increase in

allegations that judges are biased, however groundless those charges may be, "

wrote in the dissent, which Justices Clarence and A.

Alito Jr. also joined.

Legal reformers praised the ruling. " This is an appropriately narrow

ruling that represents a huge victory for a very basic principle: the right to

a

fair hearing, " said Sample, a lawyer for the Brennan Center in New

York. " It sets a floor. Now, it is up to the states. "

Contribution limits may not be the answer, he noted. Blankenship gave the

legal limit of $1,000 directly to 's campaign. But he spent $3

million through two independent groups to fund mailings and ads in favor of

.

ousted a justice who was seen as more favorable to plaintiffs.

Massey's case came before the five-member West Virginia Supreme Court

twice. In the first ruling, the court by a 3-2 margin threw out the verdict on

the grounds that the lawsuit was brought in the wrong place. When questions

arose about fairness, the court agreed to rehear the matter.

Two justices stepped aside, but refused to do so. When a

reconstituted court heard the issue again, the result was another 3-2 ruling in

favor of Massey, with voting in the majority.

Hugh Caperton, whose small company was driven into bankruptcy by Massey,

appealed the case to the U.S. Supreme Court after the West Virginia ruling.

The case of Caperton vs. A.T. Massey Coal split Kennedy's colleagues along

the usual liberal-conservative lines, with Kennedy joining the liberal

bloc. Justices s, H. Souter, Ruth Bader Ginsburg and

G. Breyer signed his opinion.

The high court's ruling today sent the matter back to the West Virginia

court, with the requirement that step aside.

The decision does not directly affect federal judges because none of them

run for election.

_david.savage@..._ (mailto:david.savage@...)

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