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Hugh Caperton is not going down without a fight. Despite losing three times in front of the Supreme Court of Appeals of West Virginia, most recently on November 12 when the court voted 4-1 to reverse the $50 million verdict that he and his companies recovered against A. T. Massey Coal Co. and its subsidiaries, he has filed a petition for rehearing with the court, which focuses on its decision to apply retroactively the points of law established in its opinion. Here's the opening paragraph from the petition:

In its zeal and determination to deliver a complete, total and final victory to Massey, this Court, by adopting the written opinion of acting Chief Justice Robin Jean Davis, has violated Hugh Caperton's right to due process 1) by overturning settled West Virginia law and creating a new and drastically different  test for the applicability of forum selection clauses, and then applying that test retroactively; 2) by refusing to follow the mandate of the Supreme Court of the United States by relying improperly upon the constitutionally-tainted previous opinions of this Court rather than reviewing the case anew; 3) by entirely ignoring the West Virginia Legislature's statutory enactments and policy pronouncements regarding venue and other procedural dismissals of cases; and 4) by granting the dismissal of Caperton's claims with prejudice even though improper venue serves as the sole basis for this Court's decision to overturn a fully justified jury verdict returned against Massey. The consequences of this Court's erroneous ruling are neither fair nor just.

I think Caperton's argument that the court's decision to apply retroactively its newly-enunciated test regarding a forum-selection clause is his most persuasive, but as a practical matter, with a vote of 4-1, two justices -- I'm assuming Justice Margaret Workman, who filed her strongly-worded dissent on Monday, would vote to grant the petition -- have to decide to rehear Caperton's case, which is an uphill battle, considering the history of this case.

The court's September term ended last week and its new term begins on January 12. According to the court's January calendar, its first rehearing conference is on January 14, which is when it will likely consider Caperton's petition.

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I want to discuss in more detail the Supreme Court of Appeals' decision in Caperton v, A. T. Massey Coal Co., Inc., which was issued on Thursday. I'll discuss in a separate post another decision issued on Thursday, Associated Press v. Canterbury, in which Massey was involved but not a party.

Because this decision represents the third time the court reversed the plaintiffs' verdict and the third time that Justice Robin Davis has written the majority opinion, there is not a lot of new ground in the opinion. But as with the first two, it is exhaustive in its discussion and analysis of the issues.

Comparing the court's syllabus points in this decision to those in its decision in Caperton v. A. T. Massey Coal Co., Inc., 679 S.E.2d 223 (W.Va. 2008), which the United States Supreme Court reversed on the grounds that current Chief Justice Brent Benjamin should have recused himself, there is one entirely new syllabus point and another that represents the combination of two syllabus points from the 2008 opinion. (I realize that the 2007opinion was vacated and the 2008 opinion was reversed, but the majority has never departed from its original rationale for reversing the verdict, which I think makes the opinions valuable if they have no precedential weight.)

The new syllabus point deals with procedure before the court. As I explained in this post in August, after the United States Supreme Court reversed and remanded the case to the Supreme Court of Appeals, the corporate plaintiffs moved to affirm the trial court's judgment order due to Justice Brent Benjamin's vote in favor of Massey in the 2008 decision. They argued that because he should have recused himself, without his vote in Massey's favor, the vote would have been 2-2, which should have resulted in an affirmance of the judgment order.

The corporate plaintiffs argued alternatively that the court should reconsider its decision in 2007 to accept Massey's petition for appeal because four of the five justices now hearing the appeal had not been on the court in 2007 when the appeal was accepted, and therefore never had the opportunity to decide whether to accept the appeal and if so, as to what issues. 

The opinion noted that, "[a]lthough this Court denied the motions by order entered September 3, 2009, we nevertheless wish to discuss our grounds for so doing, and to establish a clear procedure to be applied in the event that similar circumstances arise in the future."

The court determined that its denial of the motion to affirm the judgment was proper under the United States Supreme Court's decision in Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986), which had addressed a similar situation from the Alabama Supreme Court. Because West Virginia has no statute comparable to Alabama's "that expressly addresses the issue of the disqualification of a justice," the new syllabus point deals with a disqualification of a justice by the United States Supreme Court -- an infrequent occurrence, to say the least -- or when a justice decides to disqualify him or herself after an opinion has been issued and which makes the court's decision a tie vote:

Where the disqualification of a Justice of this Court, either by decision of the United States Supreme Court or by his or her personal decision made after an opinion has been issued by this Court, renders the decision of this Court a tie vote, then the Chief Justice or Acting Chief Justice of this Court may, in his or her discretion, assign a senior justice, senior judge, or circuit judge to serve in the place of the disqualified justice pursuant to Art. VIII,  § 3 of the Wes Virginia Constitution, and Rule 29 (g) of the West Virgina Rules of Appellate Procedure.

The court reiterated its earlier denial of the motion for the court to reconsider its acceptance of Massey's petition for appeal on the grounds that the remand from the Supreme Court was general rather than limited, which enabled the Supreme Court of Appeals to address all matters within the scope of the remand. Also, the court acknowledged that even if it "were obliged to reconsider whether the petition for appeal should be granted, it is plain from the record that this case presents several points that are proper for the consideration of this Court, and that the appeal was properly allowed."

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The Supreme Court of Appeals of West Virginia has again reversed the $50 million verdict obtained in 2002 by Hugh Caperton and his companies against Massey and several of its subsidiaries. Caperton v. A. T. Massey Coal Co. was before the Court for the third time, following the United States Supreme Court's ruling in June that Chief Justice Brent Benjamin should have recused himself from earlier appeals.

As in the two earlier appeals, Acting Chief Justice Robin Davis wrote the opinion, which relies on the forum-selection clause "contained in a contract that directly related to the conflict giving rise to the ... lawsuit" as the basis for finding that the circuit court erred in not granting Massey's motion to dismiss. Justices Ketchum and McHugh and Senior Status Judge Holliday joined in the opinion, and Justice Workman dissented.

I will write another post after I've had a chance to read the opinion in more detail.

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I intended to write earlier about Tuesday’s argument before the Supreme Court of Appeals of West Virginia in Caperton v. A. T. Massey Coal Co., which I watched on the Court's webcast, but better late than never with the post.

The composition of the Court has always been an issue in the case, as shown by former Justices Larry Starcher and Elliott Maynard's voluntary recusals and the United States Supreme Court’s decision that Chief Justice Brent Benjamin should have recused himself and its reversal of the West Virginia Supreme Court’s decision in favor of Massey. Four of the five justices currently on the Court did not participate in either of the prior appeals, and the one who did, Robin Davis, wrote both of the majority opinions that reversed the $50 million verdict in Caperton’s favor.

In reversing the verdict on two earlier occasions, the Court held that the circuit court should have granted Massey’s motion to dismiss based on the forum-selection clause in the coal services agreement between one of Hugh Caperton’s companies, Sovereign Coal Sales, Inc., and Massey’s subsidiary, Wellmore Coal Corporation, which required any litigation to take place in Buchanan Count, Virginia. Alternatively, if that ruling was not erroneous, the court should have granted Massey’s motion for summary judgment based on the doctrine of res judicata, as a result of the suit brought by Sovereign and another of Caperton’s companies, Harman Mining Corporation against Wellmore in Virginia, which alleged that Wellmore breached the coal services agreement with the plaintiffs, and resulted in a verdict of $6 million.

Not surprisingly, D. C. Offutt, Massey’s counsel, argued that the West Virginia action was barred by res judicata, on the grounds that Massey and its subsidiaries had been subjected to the same case in Virginia and West Virginia because the two actions involved the same parties and the same claims and the plaintiffs sought the same damages in both actions.

Justice Thomas McHugh questioned why Caperton could not bring the West Virginia case if he was not a plaintiff in Virginia. Offutt replied that the West Virginia action sought the same damages as had been recovered in Virginia.

Offutt also argued that all damages in both cases stemmed from Wellmore’s December 1, 2007 declaration of force majeure, which enabled it to cancel its contract with the Harman companies and led soon thereafter to their bankruptcy.

Justice Margaret Workman asked how Caperton could have foreseen that Massey would engage in “various machinations” to put him out of business, to which Offutt repeated that all the claims asserted in West Virginia related to the declaration of force majeure and cancellation of Wellmore's contract with the Harman companies.

David Fawcett, counsel for the Harman companies, distinguished between the Virginia action, which involved only the companies’ claim for breach of contract, and the West Virginia action, which asserted several torts, but no breach of contract. Fawcett said that in his closing argument, he identified ten acts of interference by Massey with the Harman companies’ business, so that the West Virginia case “was not a simple breach of contract.”

Fawcett also argued that Virginia law would not hold that the plaintiffs’ tortious interference claim and their breach of contract claim were the same claim for res judicata purposes.

Fawcett also claimed that West Virginia in its prior decisions was the first court in the United States to reverse a breach of contract verdict against a non-signatory to a contract on res judicata grounds, and that no other case nationally was on point.

Bruce Stanley, counsel for Caperton individually, argued that Caperton’s primary loss was that after Massey’s interest in buying Caperton’s companies had fallen through as a result of Massey’s own conduct, Caperton found himself on the Office of Surface Mining’s Applicant Violator System, which meant that he was "blacklisted" from the mining industry. Stanley argued that Caperton’s claim arose after the breach of contract litigated in Virginia.

Stanley told the Court that it had to presume that the jury had followed the circuit court’s instruction not to award any damages for breach of contract, which meant that the plaintiffs were not recovering twice for the breach of contract.

In his reply, Offutt told the Court that the modern trend is for courts to adopt forum-selection clauses, but that if it was worried, the claims were also barred by res judicata, which he described as putting “the nail in the coffin.”

The Court will likely issue its decision later in this term. I found the justices' questioning to be rather cryptic in terms of what they were focusing on, which makes it impossible, I think, to predict how the Court will rule.

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In advance of tomorrow's argument in Caperton v. A. T. Massey Coal Co., the Supreme Court of Appeals of West Virginia has granted the Caperton corporations'  motion require Massey to post an appeal bond, but has denied their motion to affirm the judgment from the circuit court. Here is my post from last month that discussed the motions.

Paul Nyden reported in the Saturday Gazette-Mail that the Court ruled last Thursday and ordered Massey to post a new bond or letter of credit with the Circuit Court of Boone County, West Virginia for at least $55 million (although the motion had requested a bond of $85 million, which is the current value of the verdict with accrued interest). In 2003, the circuit court judge who presided over the trial ordered Massey to post a bond of $55 million, which Massey did with an irrevocable letter of credit from PNC Bank, but apparently the parties reached an agreement in 2007 that, among other things, released Massey's letter of credit. The Supreme Court's order reinstates the circuit court's 2003 order.

 But the Court denied the motion filed by Harman Development Corporation, Harman Mining Corporation, and Sovereign Coal Sales, Inc to affirm the circuit court's judgment order on the grounds that without Chief Justice Brent Benjamin's vote in Massey's favor in April 2008, the vote would have been 2-2, which should have acted to affirm the order.

I have not seen the Supreme Court's order, and Nyden's article did not quote any language regarding the basis for its denial of the corporations' motion. But obviously the Court did not interpret the United States Supreme Court's decision to reverse its decision in Massey's favor as precluding further review on the state court level.

Remember that you can watch tomorrow's argument -- and any others, for that matter -- on the Supreme Court's webcast, which you can access here. I intend, at this point, anyway, to watch the argument and write about it.

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The Supreme Court of Appeals of West Virginia has scheduled arguments in Caperton v. A. T. Massey Coal Co. for September 8 at 2 p.m. But according to the corporate appellees, there isn't any need for further argument.

In a motion filed last month, Harman Development Corporation, Harman Mining Corporation, and Sovereign Coal Sales, Inc. asked the court to affirm the trial court's judgment order because without Chief Justice Brent Benjamin's vote in favor of Massey in April 2008, the vote would have been 2-2, which should affirm the underlying judgment. The corporations have also asked that Massey be required to post bond in the amount of $85 million, which is the approximate current value of the jury's verdict and accumulated interest.

The corporations rely on West Virginia precedent that "[w]hen a justice is disqualified, and the result is an evenly divided court, the standard practice in West Virginia is to affirm the last official ruling in the matter," which they contend is the judgment order. They also argue that because the United States Supreme Court "reversed" rather than "vacated" the Supreme Court of Appeals' order, the Supreme Court meant to "produce a directly opposite result from that obtained by the parties before this Court -- entry of a judgment sustaining and upholding the judgment of the circuit court in favor of the Appellees."

If the court "chooses not to give effect to the prior vote in this case," the corporations maintain that "due process requires the Court to reconsider the prior decision of this Court to grant Massey's Petition for Appeal which was granted by a 3-2 vote which included the now nullified vote of Justice Benjamin." 

Their rationale is that because three new justices have joined the court since Massey's appeal was granted on April 4, 2007 by a 5-0 vote, and a fourth has been appointed to replace Chief Justice Benjamin, "these four individuals [should have] the opportunity to consider what portions, if any, of Appellants' Petition for Appeal to grant, thus providing Appellees with the due process the high Court ultimately determined they were deprived of in the first instance."  

Here is the appellees' justification for the Supreme Court of Appeals to review whether Massey's petition for appeal should have been granted:

Corporate Appellees submit that it is the present Court -- which includes only one justice who participated in the decisions relative to Massey's Petition for Appeal almost three years ago -- which must decide whether an appeal should have been granted to some, any or all of the issues raised by Massey. And, when it does, Appellees respectfully submit that it will see that the Petition for Allowance of Appeal was improvidently granted in the first instance, especially given that nothing about the verdict, as affirmed by Judge Hoke, cries out to be rectified. In fact, the opposite is true, as the various judges who have considered this matter have all agreed that the verdict was fully supported by the evidence. As stated in this Court's first opinion on the merits of this matter: "At the outset, we wish to make it perfectly clear that the facts of this case demonstrate that Massey's conduct warranted the type of judgment rendered in this case." (11/21/07 Opinion, p. 13.)

First of all, I wonder why Hugh Caperton, who is represented separately, did not join in this motion. But leaving that aside, the motion is interesting, but I don't think the Supreme Court of Appeals is going to interpret the Supreme Court's reversal as meaning that the judgment order should be affirmed without any further review on the state level. And likewise, the appellees' argument that the decision to accept the petition for appeal should be reviewed, given the subsequent recusals, has some merit, but I don't expect the court to start over -- although its decision to review whether Massey's petition should have been accepted would be consistent with the language in its opinion that Massey's conduct justified the verdict.

In other legal news regarding Massey, it has withdrawn its lawsuit against the Supreme Court of Appeals, in light of former Justice Larry Starcher’s retirement from the court. Massey had claimed that the court's recusal procedure was unconstitutional, in that it provided a litigant with no mechanism to challenge a justice's refusal to recuse him or herself from an action.

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There are a few more items I want to mention today about the Supreme Court’s decision in Caperton v. A. T. Massey Coal Company. The first is a personal statement released by Don L. Blankenship, the chairman of Massey Energy Co., and the person whose 2004 campaign contributions on behalf of Brent Benjamin created the conflict that culminated in the Court’s decision on Monday.

Blankenship’s statement is not on Massey’s website and apparently does not represent Massey’s official reaction to the decision. Massey’s statement released on Monday quotes only Shane Harvey, Massey’s general counsel and vice-president, and is far more measured than Blankenship’s.

Blankenship’s statement is his attempt to justify his substantial financial support on behalf of Justice Benjamin, even though the highest court in the country just held that his support objectively required Justice Benjamin to recuse himself from Caperton, and that Justice Benjamin's failure to due so denied Hugh Caperton and his companies due process under the United States Constitution. I guess if I were in Blankenship’s position, I’d issue a statement that was as unapologetic and arrogant as the motive behind the contributions that were at the heart of the situation.

Of more interest and, I think, far more value is this interview on The BLT: The Blog of Legal Times with Thomas R. Phillips, retired Chief Justice of the Supreme Court of Texas, and an author of an amicus brief in Caperton on behalf of the conference of chief justices in support of neither party.

I encourage you to read his entire interview, which is brief, but this is his analysis of the decision:

Caperton established a principle that is really important: There are constitutional concerns with a judge sitting in judgment of a case where a party is a significant donor. At some point, the support becomes so substantial and so overwhelming that due process requires the judge to step aside, even if neither the donor not [sic] the judge did anything illegal or even unethical.

(Emphasis added.)

He identifies six criteria in Caperton that must be satisfied in order to establish a violation of a party’s due process and contends that its holding is so narrow that, “I’m not sure Caperton will ever be direct precedent for another recusal.”

Finally, here’s a post from Daily Kos that’s getting quite a bit of traction around the Internet. Its title is a reference to John Grisham’s novel, The Appeal, which, by sheer coincidence, I finished reading about 2 a.m. Monday morning.

As you may be aware, when the book came out last year, Grisham stated that the story wasn't far-fetched and had already happened in West Virginia, which, allowing for some poetic license in the novel, is accurate.

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There has been so much reaction and commentary about the Supreme Court’s decision yesterday in Caperton v. A. T. Massey Coal Company that it is hard to know where to begin.

First, I want to discuss the dissents, which I did not do in my post yesterday  because I wanted to focus on Justice Kennedy’s opinion.

Chief Justice Roberts wrote a dissent in which Justices Scalia, Thomas, and Alito joined. He criticized the majority opinion for

enlist[ing] the Due Process Clause to overturn a judge’s failure to recuse because of a "probability of bias." Unlike the established grounds for disqualification, a "probability of bias" cannot be defined in any limited way. The Court’s new "rule" provides no guidance to judges and litigants about when recusal will be constitutionally required. This will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be. The end result will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case.

(Emphasis added.)

He also identified 40 “fundamental questions” that courts will now have to determine “with little help from the majority,” such as:

1. How much money is too much money? What level or contribution or expenditure gives rise to a ‘probability of bias’?

6. Does the analysis change depending on whether the judge whose disqualification is sought sits on a trial court, appeals court, or state supreme court?

8. What if the “disproportionately’ large expenditure is made by an industry association, trade union, physicians’ group, or the plaintiffs’ bar? Must the judge recuse in all cases that affect the association’s interests? Must the judge recuse in all cases in which a party or lawyer is a member of that group? Does it matter how much the litigant contributed to the association?

13. Must the judge’s vote be outcome determinative in order for his non-recusal to constitute a due process violation?

21. Does close personal friendship between a judge and a party or lawyer now give rise to a probability of bias?

24. Under the majority’s ‘objective’ test, do we analyze the due process issue through the lens of a reasonable person, a reasonable lawyer, or a reasonable judge?

35. What is the proper remedy? After a successful Caperton motion, must the parties start from scratch before the lower courts? Is any part of the lower court judgment retained?

Chief Justice Roberts also looked at two of the Court’s decisions in cases involving double jeopardy (United States v. Halper, 490 U.S. 435 (1989) and Hudson v. United States, 522 U.S. 93 (1997)), and drew a comparison with the Court’s holding in Caperton, saying that,

The déjà vu is enough to make one swoon. Today, the majority again departs from a clear, longstanding constitutional rule to accommodate an ‘extreme’ case involving ‘grossly disproportionate’ amounts of money. I believe we will come to regret this decision as well, when courts are forced to deal with a wide variety of Caperton motions, each proclaiming the title of "most extreme" or "most disproportionate.

(Emphasis added.)

He also pointed out that, “Justice Benjamin just might have won because the voters of West Virginia thought he would be a better judge than his opponent. Unlike the majority, I cannot say with any degree of certainty that Blankenship ‘cho[se] the judge in his own cause.' Ante, at 16. I would give the voters of West Virginia more credit than that.”

(Emphasis added.)

Justice Scalia also dissented separately, and predicted that the Court’s decision would have the effect of reinforcing the perception that “litigation is just a game, that the party with the most resourceful lawyer can play it to win, that our seemingly interminable legal proceedings are wonderfully self-perpetuating but incapable of delivering real-world justice.” He also predicted that the opinion would add to “the vast arsenal of lawyerly gambits what will come to be known as the Caperton claim.”

Yesterday, Chief Justice Benjamin issued this statement regarding the decision, which was written on his official letterhead and posted on the Supreme Court of Appeals’ website, but was described as “personal” and “not a release of the Supreme Court of Appeals of West Virginia.”

For coverage of the decision, let me start with Paul Nyden’s article in today’s Charleston Gazette, and Jake Stump’s article in today’s Daily Mail. Nyden also wrote an interesting sidebar about who will preside as chief justice when Chief Justice Benjamin recuses himself. I think it will be Justice Robin Davis, as she has the most seniority, but apparently no one from the Court is willing to go on the record at this point.

What is most interesting is that when the Court hears this appeal again, probably during its term that starts in September, Justice Davis, who wrote both of the previous majority opinions, will be the only member who has considered the appeal. Justices Margaret Workman and Menis Ketchum were elected last November and Justice Thomas McHugh was appointed to serve the remainder of Justice Albright's term through 2010. And the acting chief justice must appoint a replacement for Chief Justice Benjamin. So how the Court will rule for the third, and presumably last, time is very much open.

For a sampling of commentary and analysis, Tony Mauro has this article on The National Law Journal 's website; on The BLT ,he has this post about Chief Justice Roberts’ connection to United States v. Halper, one of the double jeopardy cases cited in his dissent.

Carolyn Elefant of Legal Blog Watch wrote this post yesterday about the decision, with links to Mauro, Lyle Dennis at SCOTUSBlog, and George Washington University Law Professor Jonathan Turley.  Also, here is some analysis from the Constitutional Prof Law Blog.

For a couple of different takes on the decision, here are Dahlia Lithwick's "The Great Caperton Caper" on Slate and a post from Balkinization. 

And from blogs that focus on appellate litigation, here are Todd Smith's post at Texas Appellate Law Blog, which questions the effect of the decision on Texas courts, whose members are elected, and a post from Alabama Appellate Watch, which is written by Lightfoot Franklin White LLC.  

Finally, I think there have been as many editorials as there have been news articles and blog posts about the decision. But for your consideration, here is The New York Times' editorial today entitled "Honest Justice" and The Wall Street Journal's editorial entitled "Judges and 'Bias.'" I'll leave it to you to figure out what each paper thought about the decision.

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The Supreme Court of the United States issued its opinion today in Caperton v. Massey and in a 5-4 decision held that the Due Process Clause of the Fourteenth Amendment required Supreme Court of Appeals of West Virginia Chief Justice Brent Benjamin to recuse himself from Caperton's appeal and reversed the Supreme Court of Appeals' decision in Massey's favor and remanded the case for further proceedings. 

The opinion by Justice Anthony Kennedy noted that the majority "do not question his [Justice Benjamin's subjective findings of impartiality and propriety. Nor do we determine whether there was actual bias."

But the Court found that the "difficulties of inquiring into actual bias ... simply underscore the need for objective rules":

Not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge's recusal, but this is an exceptional case... We conclude that there is a serious risk of actual bias -- based on objective and reasonable perceptions -- when a person with a personal stake in a particular case has had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent. The inquiry centers on the contribution's relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.

(Emphasis added.)

The Court concluded, based on the application of the principle, that:

... Blankenship's campaign efforts had a significant and disproportionate influence in placing Justice Benjamin on the case. Blankenship contributed some $3 million to unseat the incumbent and replace him with Benjamin. His contributions eclipsed the total amount spent by all other Benjamin supporters and exceeded by 300% the amount spent by Benjamin's campaign committee. App. 288a. Caperton claims Blankenship spent $1 million more than the total amount spent by the campaign committees of both candidates combined. Brief for Petitioners 28.

(Emphasis added.)

The Court rejected Massey's argument that ultimately West Virginia voters elected Justice Benjamin to the Court, stating that, "[w]hether Blankenship's campaign contributions were a necessary and sufficient cause of Benjamin's victory is not the proper inquiry. Much like determining whether a judge is actually biased, proving what ultimately drives the electorate to choose a particular candidate is a difficult endeavor, not likely to lend itself to a certain conclusion."

The Court also focused on the "temporal relationship between the campaign contributions, the justice election, and the pendency of the case...", meaning the the winner of the election would be on the Court when it reviewed the $50 million verdict:

Although there is no allegation of a quid pro quo agreement, the fact remains that Blankenship's extraordinary contributions were made at a time when he had a vested stake in the outcome. Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when -- without the consent of the other parties -- a man chooses the judge in his own cause. And applying this principle to the judicial election process, there was here a serious, objective risk of actual bias that required Justice Benjamin's recusal.

(Emphasis added.)

In describing this as "an extraordinary situation where the Constitution requires recusal," the majority opinion also rejected Massey and its amici's prediction that finding a constitutional violation in this case would result in various adverse consequences, "ranging from a flood of recusal motions to unnecessary interference with judicial elections." 

The Court found that almost every state, including West Virginia, had adopted the American Bar Association's objective standard that "a judge shall avoid impropriety and the appearance of impropriety," and also noted that the West Virginia Code of Judicial Conduct required a judge's recusal in similar circumstances.

Chief Justice John Roberts wrote a dissent in which Justices Scalia, Thomas, and Alito joined, and Justice Scalia also dissented separately.

I'll write some more about the decision, but I wanted to provide the opinion right now.  For some additional reaction, here is SCOTUSBlog's initial post  and David Stout's article in The New York Times.

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Although the Supreme Court heard arguments on Tuesday in Caperton v. A. T. Massey Coal Company, Massey wants the Court to review some additional information, namely, Chief Justice Benjamin's voting record in appeals involving Massey.

Yesterday Massey filed a motion for leave to file a supplemental brief in order to

present[] the Court with information pertinent to this matter — specifically, a press release detailing Justice Benjamin’s voting record in matters involving Massey Energy Company and its affiliates — that was issued by the West Virginia Supreme Court of Appeals after briefing was completed.  Justice Benjamin’s voting history in Massey cases bears significantly on respondents’ contention that, even if the Due Process Clause requires recusal when there is a “probability of bias,” there was no such probability here.

On Monday, Jennifer Bundy, the Supreme Court of Appeals of West Virginia's public information officer, issued a press release entitled, “Summary of Chief Justice Benjamin’s Dispositive Voting Record Regarding Massey Energy Cases from 01/01/2005 to 12/31/2008,” which was “prepared in response to press inquiries about Chief Justice Benjamin’s voting record in cases involving Massey Energy.”

According to the release, Chief Justice Benjamin voted against the interests of Massey Energy or its subsidiary 81.6% of the time, and in favor of the interests of Massey Energy or its subsidiary 18.4%. 

Caperton responded in opposition to Massey's brief yesterday and took the opportunity to remind the Court of some apparent inconsistencies in Massey’s brief, by noting the Court’s definition of “new matter”:

Such “new matter” might include a statement made by the CEO of a litigant — made after the litigant’s brief expressly denied that the CEO and a particular judge “even knew one another, before or after the election,” much less that the judge “solicited or encouraged [the CEO’s] activities” — acknowledging that the CEO and the judge had met privately before the election and discussed, specifically, “raising money.”  Compare, e.g., Resp. Br. 55–56, with Adam Liptak, Justices Hear Arguments on Money-Court Nexus, New York Times, March 4, 2009, at A18.  That would be new information “that was not available in time to be included in a brief,” S. Ct. R. 25.5, and it would tend to reinforce petitioners’ argument that the CEO had set out to pick a judge for his own case and that any reasonable observer would conclude that a judge selected under those circumstances quite probably would be biased in favor of the CEO who spent so much to elect him.

Caperton's brief also asserts that in the only Massey cases where Chief Justice Benjamin's vote was outcome-determinative, i.e., he voted with the majority in a 3-2 vote, he voted for Massey.

Here are Andrew Clevenger’s article in Tuesday’s Charleston Gazette discussing the release and his article in today’s edition discussing Massey’s brief.

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I think this comment by Justice John Paul Stevens sums up Caperton v. A. T. Massey Coal Co., which was argued today before the Supreme Court:

“The whole point of this case is it [actual bias] has not been recognized.  We have never confronted a case as extreme as this before.  This fits the standard that Potter Stewart articulated when he said ‘I know it when I see it.’”

And that is what the justices are grappling with. 

The issue is whether Hugh Caperton and his companies were denied their right to due process when Supreme Court of Appeals of West Virginia Justice Brent Benjamin refused to recuse himself from Massey’s appeal of $50 million jury verdict in Caperton's favor. 

Here are the transcript of the argument and a post from The Wall Street Journal Law Blog, which has an interview with the Journal’s Supreme Court reporter, Jess Bravin, who attended the argument and explains the significance of the justices’ questions and comments.  By the way, his discussion of Justice Stevens’ professional background may help to explain the comment referenced above.

For more analysis, here is SCOTUSBLOG’s excellent analysis of the argument, as well as an article by USA Today reporter Joan Biskupic, and the Associated Press’ story in the Charleston Gazette. 

The transcript really captures the differences between the parties’ positions.  Caperton argues that because actual bias on the part of a judge or justice is impossible to prove, the applicable standard needs to be one that focuses on the appearance of a probability of bias. 

Caperton argues that Blankenship’s $3 million contribution to a group that opposed Justice Benjamin’s opponent created the appearance of a probability of bias against Caperton in his case against Massey, which required Justice Benjamin’s recusal.

On the other hand, Massey argues that the appearance of impropriety, without any proof of actual bias, could never raise a constitutional issue, which means that Caperton’s right to due process was not violated by Justice Benjamin's refusal to recuse himself.

For what it’s worth, Justice Anthony Kennedy, who has been the critical fifth vote in several important decisions, said that it seemed to him that litigants have an entitlement to confidence in judges’ decisions under the Due Process Clause.   

Massey’s counsel, Andrew Frey, suggested that the justices ask themselves “if you were in Justice Benjamin's situation, do you really think that you would be incapable of rendering an impartial decision in a case involving Massey?  Because if the answer to that is no, if the answer to that is that you would not be incapable of rendering an unbiased decision, then there’s no justification for saying that Justice Benjamin would —”

Caperton’s counsel, former Solicitor General Theodore Olson, countered that the appropriate question for the justices was, “[i]f this was going to be the judge in your case, would you think it would be fair and would it be a fair tribunal if the judge in your case was selected with a $3 million subsidy by your opponent?”

The Court's opinion may depend on which question the justices answer.

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Here is the petitioners' reply brief, which they filed today. 

Also, in this order entered last Friday, the Supreme Court of the United States denied Alabama Attorney General Troy King's motion to participate in the oral argument and to divide the argument time.  King filed an amicus brief on behalf of Alabama and six other states in support of the respondents.  The Court also granted the Supreme Court of Louisiana's motion for leave to file an amicus brief out of time, which I discussed last week.

Oral argument is scheduled for next Tuesday, March 3.

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As we get closer to March 3, when the United States Supreme Court will hear arguments in Caperton v. A. T. Massey Coal Company, a state appellate court has weighed in on the controversy, but it’s probably not the court or for the reason you’d expect. 

According to this article by John O’Brien in today’s LegalNewsline.com, the Louisiana Supreme Court has moved for leave to file an amicus brief in the case, in order to refute allegations contained in a Tulane Law Review article that was cited in a brief filed by several amici on behalf of Caperton.  

Here’s the backstory.  In March 2008, the Tulane Law Review published an article entitled “The Louisiana Supreme Court in Question: An Empirical and Statistical Study of the Effects of Campaign Money on the Judicial Function,” by Vernon Valentine Palmer and John Levendis.

The first paragraph of the article’s executive summary says:

This empirical and statistical study of the Louisiana Supreme Court demonstrates that the court has been significantly influenced — wittingly or unwittingly — by the campaign contributions from litigants and lawyers appearing before it.  In a statistical sense, campaign donors enjoy a favored status among parties before the court.  Facing an aggregate of $1.3 million in political donations in the cases under review, the justices did not find reason to disqualify or recuse themselves.

No wonder, then, that the amicus brief submitted by the Brennan Center for Justice at NYU School of Law, the Campaign Legal Center, and the Reform Institute cited the article as support for their position that Supreme Court of Appeals of West Virginia Chief Justice Brent Benjamin should have recused himself from the Caperton case.

The only problem is that the article has been criticized for its miscalculations and flawed methodology, which prompted Tulane Law School Dean Lawrence Ponoroff to apologize to the Louisiana Supreme Court last September. 

On February 9, the Louisiana Supreme Court moved for leave to file its amicus brief out of time, in which it described the purpose for its brief:

The Louisiana Supreme Court’s purpose in filing its amicus curiae brief is to apprise this Honorable Court that the Tulane Law Review article has been thoroughly refuted because of its flawed methodology, error-laden data selection, and faulty analysis.  See, e.g., Robert Newman, Janet Speyrer & Dek Terrell, A Methodological Critique of The Louisiana Supreme Court in Question: An Empirical and Statistical Study of the Effects of Campaign Money on the Judicial Function, 69 LA. L. REV. 307 (2009); and because of its erroneous data collection, selection and analysis, see Kevin R. Tully & E. Phelps Gay, The Louisiana Supreme Court Defended: A Rebuttal of The Louisiana Supreme Court in Question: An Empirical and Statistical Study of the Effects of Campaign Money on the Judicial Function, 69 LA. L. REV. 281 (2009).  Due to the grave errors in the article, the Dean of the Tulane Law School issued a formal written apology  to the Louisiana Supreme Court and to its Justices.  And, the Tulane Law Review posted an Erratum on its website expressing deep regret over the article’s errors.

Here’s the Erratum on the law review’s website:

The Louisiana Supreme Court in Question: An Empirical Statistical Study of the Effects of Campaign Money on the Judicial Function, published in Volume 82 of the Tulane Law Review at 1291 (2008), was based on empirical data coded by the authors, but the data contained numerous coding errors.  Tulane Law Review learned of the coding errors after the publication.  Necessarily, these errors call into question some or all of the conclusions in the study as published.  The Law Review deeply regrets the errors. 

Counsel for the Louisiana Supreme Court and the writers of its amicus brief are Kevin R. Tully and E. Phelps Gay, who also wrote one of the two rebuttals to the Tulane Law Review article published this year in the Louisiana Law Review.

On a lighter note, if such a thing exists in the case, is this front-page article from Monday’s USA Today by Joan Biskupic, entitled “At the Supreme Court, a case with the feel of a best seller.”

Also today, The Wall Street Journal Law Blog published this post about Andrew Frey and Theodore Olson, who will argue for the parties at the Supreme Court.  Frey and Olson are two of the most experienced and best known appellate lawyers in the country, which should make for an excellent argument.

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In its February issue, the ABA Journal has a feature by John Gibeaut entitled "Caperton's Coal," about, what else, Hugh Caperton and Harman Mining's lawsuit against Massey, and its aftermath.

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Five amicus briefs were filed yesterday in support of A. T. Massey Coal Company.  They are:

• Brief of Amicus Curiae Center for Competitive Politics in Support of Respondents;
• Brief of Law Professors Ronald D. Rotunda and and Michael R. Dimino as Amici Curiae in Support of Respondents;
• Brief of the States of Alabama, Colorado, Delaware, Florida, Louisiana, Michigan, and Utah as Amici Curiae in Support of Respondents;
• Brief of Ten Current and Former Chief Justices and Justices as Amici Curiae in Support of Respondents; and
• Brief of Amicus Curiae James Madison Center for Free Speech Supporting Respondents.

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I’ll get back to posting from LegalTech New York, but I want to talk about an order entered last Friday by Supreme Court of Appeals of West Virginia Chief Justice Brent Benjamin.

As most everyone knows, the United States Supreme Court will hear arguments on March 3 in Caperton v. A. T. Massey Coal Co. on the issue of the effect of Massey chairman Don Blankenship’s $3 million in contributions to an organization that ultimately benefited Chief Justice Benjamin’s 2004 campaign for the Court. 

Now, confronted with a motion to disqualify him from State ex rel. Central Energy Company v. The Honorable Ronald E. Wilson and Mountain State Carbon, LLC, No. 082333 (Central Energy Company is a Massey subsidiary), Chief Justice Benjamin has temporarily recused himself from all cases involving Massey, pending the Supreme Court’s decision in Caperton. 

Here are the recusal order and a 14-page memorandum, in which Chief Justice Benjamin explained that, although he does not believe that his disqualification is warranted “based upon the motion as presented, the facts and records of this case, these parties’ previous actual record before me, and the current law of West Virginia and the United States[,]”

It would be personally and judicially disrespectful to the United States Supreme Court and its Justices for me to proceed in this or any other matter involving Massey Energy Company while the Caperton matter is pending.  It would likewise be improper for this Court to delay matters involving Massey Energy Company, particularly matters such as this involving injunctions, while the Caperton matter is pending before that Court.

Justice Robin Davis will serve as acting Chief Justice in matters involving Massey and will appoint a replacement while Caperton is pending before the Supreme Court.

Also, on Monday, AmericanLawyer.com's Andrew Longstreth discussed the Caperton appeal and asked Andrew Frey of Mayer Brown, who will argue for Massey before the Supreme Court , about the disparity in the number of amicus briefs filed in support of Caperton and Massey.  Frey said that he anticipates “three or five” briefs in support of Massey, including the one to be filed by Alabama Attorney General Troy King on behalf of the National Association of Attorneys General, which I discussed last week.

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A. T. Massey Coal Company filed its merits brief yesterday, which leaves only the filing of amicus briefs in support of Massey's position, which are due by next Wednesday, February 4.

It doesn't seem likely that Massey will attract as many amici as the plaintiffs did, which I provided in this post, but one brief that will be filed on its behalf will come from Alabama Attorney General Troy King for the National Association of Attorneys General.

Dan Schweitzer, Supreme Court counsel for the NAAG, sent out this email, which enclosed a memorandum describing the proposed brief.

Here is the memorandum's description:

To be clear, Alabama will not be taking sides in the election vs. appointment vs. merit-selection debate in this brief.  Nor will Alabama be attempting to downplay the seriousness of the allegations of impropriety here.  Instead, Alabama will focus solely on the following federalism point: Once a state has chosen its preferred method of selecting judges -- whatever that method is -- states should have the ability to police judicial participation through carefully constructed state recusal policies.  In other words, making recusal a federal issue by "constitutionalizing" it is unnecessary and, as a practical matter, unwise.

The memorandum also outlines potential arguments to be raised in the brief:

• It would be extraordinarily difficult to craft a meaningful "principle" underlying a generic federal due process right to recusal.
• Federalizing the issue burdens the courts.
• Federalizing the issue is unnecessary because the States are currently handling the issue with their own rules and regulations.
• Making the failure to recuse a potential constitutional rights violation will effectively cause many judges to recuse unnecessarily.

Here is The Wall Street Journal's Law Blog's post from last week about the memorandum (with a now-outdated photograph of the Supreme Court of Appeals of West Virginia), including a link to Paul J. Nyden's article in the Charleston Gazette.

I'll post the NAAG amicus brief and any others.

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Here are the amicus briefs that have been filed thus far in Caperton v. A. T. Massey Coal Company, Inc.:

Brief of 27 Former Chief Justices and Justices in Support of Petitioners;

Brief of Public Citizen in Support of Petitioners;

Brief of Justice At Stake, the American Judicature Society, Appleseed, Common Cause, the Constitutional Accountability Center, the Institute for the Advancement of the American Legal System, the League of Women Voters, the National Ad Hoc Advisory Committee on Judicial Campaign Conduct, the Alabama Appleseed Center for Law & Justice, the Colorado Judicial Institute, Democracy North Carolina, the Fund for Modern Courts, the Illinois Campaign for Political Reform, Justice For All, the League of Women Voters of Michigan, the League of Women Voters of Wisconsin Education Fund, the Massachusetts Appleseed Center for Law & Justice, the Michigan Campaign Finance Network, Missourians for Fair and Impartial Courts, the NC Center for Voter Education, Ohio Citizen Action, Pennsylvanians for Modern Courts, Texans for Public Justice,the Washington Appellate Lawyers Association, Washington Appleseed, Wisconsin Democracy Campaign, Chicago Appleseed, and the Chicago Council of Lawyers in Support of Petitioner;

Brief of the Brennan Center for Justice at NYU School of Law, the Campaign Legal Center, and the Reform Institute in Support of Petitioners;

Brief of the American Academy of Appellate Lawyers in Support of Petitioners;

Brief of the Committee for Economic Development, Intel Corporation, the Lockheed Martin Corporation, PepsiCo, Wal-Mart Stores, Inc., the Defense Trial Counsel of Indiana, the Illinois Association of Defense Counsel, and Transparency International – USA in Support of Petitioners;

Brief of the National Association of Criminal Defense Lawyers in Support of Petitioners;

Brief of the American Bar Association in Support of Petitioners;

Brief of the American Association for Justice in Support of Petitioners;

Brief of Center for Political Accountability and the Carol and Lawrence Zicklin Center for Business Ethics Research in Support of Petitioners; and

Brief of the Conference of Chief Justices in Support of Neither Party

January 5 was the deadline for amicus briefs in support of the  petitioners.  The respondents' merits brief is due by January 28, and amicus briefs supporting their position are due by February 4.

Also, in a story by Justin Anderson in today's (Charleston, West Virginia) Daily Mail, Richard A. Brisbin, Jr., associate professor in the Political Science Department at West Virginia University, discusses the political agendas of some of the groups that have filed amicus briefs.

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It seems fitting to end the year with a post about the appeal in Caperton v. A. T. Massey Coal Company, Inc., which promises to stay in the headlines in 2009, with oral arguments scheduled for March 3. 

Here is the petitioners’ merits brief (courtesy of petitioners’ counsel Bruce Stanley), which was filed on Monday, and presents the following question for the Supreme Court’s consideration:

Justice Brent Benjamin of the Supreme Court of Appeals of West Virginia refused to recuse himself from the appeal of the $50 million jury verdict in this case, even though the CEO of the lead defendant spent $3 million supporting his campaign for a seat on the court – more than 60% of the total amount spent to support Justice Benjamin’s campaign – while preparing to appeal the verdict against his company.  After winning election to the court, Justice Benjamin cast the deciding vote in the court’s 3-2 decision overturning that verdict.  The question presented is whether Justice Benjamin’s failure to recuse himself from participation in his principal financial supporter’s case violated the Due Process Clause of the Fourteenth Amendment. 

Paul Nyden wrote about the brief and cited some other excerpts in today’s Charleston Gazette.  According to his article, amicus briefs in support of the petitioners are due by January 5, Massey’s merits brief is due by January 28, and amicus briefs supporting its position are due by February 4.  I’ll post the briefs as they are filed.

Happy New Year to everyone!

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In an eagerly awaited decision, the Supreme Court of the United States today granted the petition for a writ of certiorari filed by Hugh Caperton and Harman Mining from the Supreme Court of Appeals of West Virginia’s reversal of a $50 million verdict in their favor.  Here is the Court's order, which included decisions on cert petitions in several cases.

Harman and Caperton alleged that Supreme Court of Appeals Justice Brent Benjamin’s refusal to recuse himself from the case, in which A. T. Massey Coal Company was a defendant, deprived them of a fair and impartial tribunal. 

In Justice Benjamin’s 2004 campaign, Massey chairman Don Blankenship played a pivotal role by personally spending $3 million on behalf of an organization that directly or indirectly benefited Justice Benjamin.

Here are Caperton and Harman's petition for the writ, Massey's response in opposition, and amicus briefs submitted on behalf of Caperton and Harman by the American Bar Association, Public Citizen, and the Washington Appellate Lawyers Association, all courtesy of plaintiffs’ counsel Bruce Stanley.

The appeal has focused attention on the issue of contributions in judicial elections.  The New York Times published an editorial yesterday, entitled "Tainted Justice", in which in which it urged the Court to accept the petition and questioned why the Court had taken so long to make a decision.  According to the Court's docket, the petition had been considered on four prior occasions before today.

Bloomberg.com , Dow Jones Newswire, and The Charleston Gazette have written stories today on the Court's decision to accept the petition..

In the Sunday Gazette-Mail on November 9, Paul J. Nyden wrote about the Court's ongoing consideration of the petition and discussed other media outlets that had urged the Court to accept the appeal.   

Finally, here are some posts I've written about the case when Caperton hired former Solicitor General Ted Olson to prosecute the Supreme Court appeal,  the Supreme Court of Appeals reversed Caperton's verdict for a second time, and Justice Benjamin refused to recuse himself from the case.

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