around the bar
August 5, 2012

West Virginia Justice Made Famous by Caperton Comments on His Decision to Hear the Case

West Virginia Supreme Court Justice Brent Benjamin

West Virginia Supreme Court Justice Brent Benjamin

When should judges refrain from hearing cases due to impartiality concerns? West Virginia Supreme Court Justice Brent Benjamin, a panelist for a 2012 _ Annual Meeting program on the topic, has weathered the front lines in the debate.

Benjamin participated in the discussion with justices from Florida, Georgia and North Carolina. The event was sponsored by the ABA Standing Committee on Judicial Independence.

Followers of judicial recusal issues are well aware of Benjamin’s role in Caperton v. Massey, the U.S. Supreme Court’s landmark 2009 decision. The court found that Benjamin’s refusal to disqualify himself in an appeal involving Massey, a significant judicial campaign contributor, denied due process for Caperton, the losing party who had unsuccessfully sought Benjamin’s recusal.

To many, the facts read like a John Grisham tale of buying a judicial seat for a litigant’s gain. In 2004, Benjamin defeated an incumbent justice for a seat on the West Virginia Supreme Court with more than $3 million from a political action committee bankrolled by Massey. Four years later, Benjamin joined the majority in ruling for Massey.

Caperton’s appeal to the U.S. Supreme Court made Benjamin a poster child for opponents of the increasing amounts of judicial election fundraising and campaign spending in state court elections.

“I don’t have horns,” Benjamin said. “It was not an easy decision [to avoid recusal], by any means.”

Caperton “has been praised in some quarters, criticized in others, and there’s a lot of emotion that’s been generated because of it,” Benjamin said. He expressed concern that because of the ruling, judges must now account for actions beyond their control in deciding whether to hear a case.

The West Virginia justice recalled an article in The Economist with a picture of himself and the headline, “Should Benjamin have taken the money?”

His response: “I have never seen $3 million … I drive a 1997 Toyota.” Benjamin also noted that his opponent, the incumbent, raised double the amount of campaign money as he did.

Benjamin said that the U.S. Supreme Court case came four years after his election to the state high court. During that time, he says, his rulings were 80 percent against Massey, suggesting that campaign donations never factored into his decisions.

Other panelists were Georgia Chief Justice Carol Hunstein, North Carolina Associate Justice Mark Martin and Florida Associate Justice Peggy Quince, who spoke about judicial recusal policies in their states. The discussion was moderated by Robert Peck, a litigator and law professor in Washington, D.C.

Caperton and related concerns over judicial campaign fundraising prompted the ABA judicial independence committee to study judicial recusal issues, which led to ABA policy that calls for state courts to develop clear disqualification policies.

Peck noted that judicial recusal concerns have come a long way since Marbury v. Madison. Chief Justice John Marshall heard the case and wrote the landmark opinion, even though he had served as secretary of state during the underlying events of the case.

Although the ABA, state courts and others are paying increasing attention to judicial recusal issues, the panelists agreed that the need for judges to disqualify is rare, and that the “duty to sit” is as compelling as a judge’s need to recuse when circumstances clearly call for it.