In his novel The Appeal, John Grisham told the story of a Mississippi Supreme Court Justice who voted to reverse a huge jury verdict against an equally huge and well-heeled chemical company that polluted a small town and killed Mississippi citizens.
Hand-picked by the company lobbyists and lawyers because of his pro-industry and insurance defense views, the justice ultimately performed as predicted, even in the face of a personal tragedy when his son was brain-damaged by an illegal bat used in youth baseball. This fictional story stretched the limits of financial and political influence in America and demonstrated how campaign contributions can pollute the appellate process.
In the real case of Caperton vs. Massey Coal Company, argued in the United States Supreme Court on March 3, the question presented was whether a denial of due process of law occurs when a judge is given a substantial campaign contribution by a single contributor, who subsequently has a case favorably decided by that same appellate judge. Real life can be as strange as any novelist can imagine.
Caperton is rampant with allegations of individual and corporate wrongdoing and appellate intrigue. It was essentially a fight between mine owners and the allegations were that Blankenship, a wealthy mine owner, ran Caperton out of business. At trial, the jury entered a verdict for Caperton of $50 million and found that Blankenship and his company, Massey, committed fraud, misrepresentation, and interfered with mining contracts. The case went to the Supreme Court of Appeals in West Virginia, however there was a pending election of a justice whom Blankenship did not want sitting on his case. So he went after that judge, running ads alleging he was not fit for office and that his opponent, Judge Brent Benjamin, was more pro-business. Blankenship spent $3 million to get Justice Benjamin elected.
Later, when the case was finally before the West Virginia Supreme Court of Appeals for review, Justice Benjamin refused to excuse himself. Moreover, he attacked fellow judges who didn't agree with his position and ultimately cast the deciding vote to reverse the $50 million jury verdict against Blankenship, the man who had essentially gotten him elected.
Was the vote of a judge who was given $3 million in campaign contributions swayed by his generous contributor or was his vote based on an impartial view of the case? Do judges who accept large campaign contributions have a duty to excuse themselves and avoid the appearance of impropriety? The answers to these questions seem apparent, though Benjamin's advocates say that he has a right of free speech that entitles him to attack any judge at any time for any reason. Benjamin's lawyers in the Supreme Court further argued that his desire to defeat the other justice was "independent" of any link to the $50 million award reversal.
There are both ethical and statutory guidelines defining when judges must remove themselves from a case, however it seems apparent the real problem stems from the election of judges, because all elections require campaign contributions. According to the Annenberg Public Policy Center, 39 states still elect judges in some form. This means political contributions will flow from lawyers, interest groups and political parties when it is inevitable that those lawyers and political parties will come before the judge on a variety of issues.
A blanket rule requiring any judge to step aside when a party comes before their court who has contributed to their campaign would make it impossible to have elections. Conversely, one can assume large contributors make such large contributions precisely because they expect favorable results to flow from their large contributions.
Colorado has not had elected judges since 1970, and we are nationally recognized for our superior judiciary, which is virtually free from corruption and undue influence. Our judges are nominated by bipartisan committees and are then appointed by the governor.
It seems the only way other states can avoid the dilemma of campaign contributions driving judicial decisions is to do away with judicial elections altogether. Otherwise, the probability that a large campaign contribution might affect a judicial decision always will lurk in the shadows of every judicial act.
Taking judges out of politics and political fundraising will not be easy as it may require constitutional amendments in 39 states. Those forces that have contributed millions of dollars into the judicial electoral money pit will not relinquish their influence and investment in judicial offices without a significant struggle.
It will be interesting to see how the U.S. Supreme Court justices, nominated by a president and confirmed by the U.S. Senate to serve for life, will vote on this issue. One can only hope their ruling will restore the $50 million the jury originally awarded, and initiate the decline of elected judges who still can preside over cases that involve parties whose money helped place them on the bench.
Michael McLachlan is a Durango attorney. Reach him at 247-8236.