Judicial Influence Peddling Question May Reach High Court

The subject of influence peddling and state court judges may reach the U.S. Supreme Court next year, as a result of questions of judicial conflict of interest in a case against a West Virginia mining company.

In a petition filed before the high court last month, Harman Mining -- represented by former Solicitor General Theodore Olson Jr. -- argues that its due process rights were violated when a West Virginia state justice failed to recuse himself from a business fraud case against a coal mogul who contributed more than 60 percent to the justice's election campaign.

The case comes at a time of increasingly expensive and nasty state Supreme Court elections and could lead to a ruling on where to draw the line between money and influence in elected state court judges. Should the court take the case, a decision against the judge could have a ripple effect on state court elections across the country.

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"The court's mere statement that this case is beyond the line would spur judges and the states themselves to pay particular attention to the letter of judicial conduct," said James Sample, an attorney with the Brennan Center for Justice, which filed a brief supporting Harman Mining.

Likewise, Sample said, if the court turns down the case, it "may be interpreted as a sign that the due process clause poses no constraints on even the most brazen attempts to purchase influence in pending cases."

Harman Mining argues that West Virginia Supreme Court of Appeals Justice Brent Benjamin had a clear conflict of interest in presiding over the appeal of the case against Massey Energy because of the CEO's aid in a $3.5 million advertising campaign that helped win that justice's election.

"Although judicial elections—and contributions to elected judges—are a well-established means of selecting a state judiciary," Olson wrote, "There will be rare cases where campaign expenditures by a litigant create a constitutionally unacceptable appearance of impropriety. This is such a case."

A trial court found that Massey had obtained confidential information about Harman and used it to undermine Harman, eventually forcing it into bankruptcy. As a result, the court ordered Massey to pay Harman Mining $50 million. The appeals court reversed the verdict -- both on review by a three-justice panel and by the entire court. Both times Benjamin was asked to recuse himself on the grounds that the sum of money, at the very least, created an appearance of a conflict of interest. Both times, Benjamin refused. Benjamin wrote in court documents that there is no evidence to suggest that he cannot be fair and impartial.

The subject of Massey and its CEO Don Blankenship's relationship to Benjamin was the subject of an ABC News investigation.

A handful of interest groups have also filed briefs urging the court to take on the case, including the American Bar Association, the Campaign Legal Center, the Brennan Center for Justice, the Committee on Economic Development, the Washington [State] Appellate Lawyers Association and Public Citizen.

Massey's attorney could not be reached for comment.

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