Setting the Record Straight

Bigwig local lawyer Al Emch takes to the pages of the Charleston Daily Mail today to defend West Virginia Supreme Court Justice Brent Benjamin, who is the focus of an upcoming argument at the United States Supreme Court. In doing so, I think he gets some things wrong about the procedural posture of the case that make it look much better for his side than it actually is.

The case has the such a sheen of sensationalism that it inspired a John Grisham novel. In 2004, incumbent Justice Warren McGraw was up for reelection. Anxious to swing the court in a more business favorable direction, A.T. Massey coal company owner Don Blankenship bankrolled an "issue ad" campaign against McGraw to the tune of more than $3 million. That benefited McGraw's general election opponent, Benjamin, who at the time was relatively unknown statewide. Benjamin took his seat on the court, for a 12-year term, in January 2005.

A year later, Massey petitioned to the state Supreme Court to review a $50 million dollar fraud verdict entered against it in the trial court. The winner at the trial, Caperton, asked Benjamin to recuse himself from the case, given the massive aid Blankenship provided to his campaign (albeit indirectly). Benjamin refused, the court reversed the verdict against Massey, and did so again after a rehearing. Caperton sought review from the United States Supreme Court, which will hear oral arguments in the case in early March.

Emch's side may very well have the winning legal argument before the US Supreme Court, I don't know - big dollar civil litigation is not my area of expertise, after all. But in making his case, he makes some dubious conclusions about the process thus far.

First, the lede, which, to be fair, he might not have written, reduces Benjamin to a patsy:

WEST Virginia Supreme Court Chief Justice Brent Benjamin has for months been caught in a vicious cross-fire -- on a battlefield that he did not choose, in a war he did not start -- among combatants with goals that they are all willing to sacrifice him to achieve.

First, Benjamin benefited from Blankenship's huge expenditure during the campaign and never, to my knowledge, sought to distance himself from it. Second, Benjamin is the one who refused to recuse himself from Massey's appeal. Twice. So, he very much chose to be a part of this battle.

Second, about the case itself, Emch writes:

Let us first consider the interests of the party who has brought this matter before the U.S. Supreme Court.

Hugh Caperton had his claims reviewed by the state Supreme Court twice, by no fewer than seven different judges. He lost both times.

Boy, sounds like a dog of a case, huh? What Emch doesn't say is that Caperton won at trial, so both a trial judge and jury were convinced by the strength of his case. Believe me, trial courts and juries get it wrong sometimes, but it's one data point to consider. More importantly, Emch glosses over how close the case was in the state Supreme Court and the role Benjamin played in ensuring Massey's victory.

As I said, Caperton asked Benjamin to step down when the case first came to the state Supreme Court. Benjamin refused. The court heard the case and ruled in Massey's favor, 3-2. In other words, Benjamin was the deciding vote. The court agreed to rehear the case (unanimously, it must be said) after local journalists published photos of Blankenship on vacation in France with Spike Maynard, another justice on the court. Caperton again asked Benjamin to step aside, but he refused (Maynard did, to his credit, as did another justice). On rehearing, the vote again was 3-2. So, yes, Caperton "lost both times" - by a single vote delivered by Benjamin.

Going on, Emch writes:

Unable to win his appeal on the merits, he pursues this collateral attack on Justice Benjamin as a possible end run.

Where in the media reports on this case have we seen an analysis of the substance of the issues involved and the reasoning of our court in ruling on them? Nowhere. The merits are unassailable, which is why Caperton attacks Justice Benjamin instead.

This either is a head fake by someone who knows how the US Supreme Court does business or is written by someone who doesn't know. I'm not sure which to assume.

The United States Supreme Court does not sit to simply correct errors in the courts below. That's doubly true when considering appeals from the state courts. It takes only a handful of cases each year, cases that have broader reach than just the litigants in one case. The US Supreme Court isn't interested in just reviewing the case to ensure justice was done. Some issue of Constitutional import was needed to catch their attention. Thus, in the same way that I weed out the sufficiency of the evidence claim I raise in the Fourth Circuit to focus on the Fourth Amendment issue that might have wider application, Caperton focused on what would get the attention of the Supremes. It's the way the Court works.

On a related note, where, previously, was Caperton to raise this issue in this manner? He asked for the appropriate relief (recusal) at the state Supreme Court. Had Benjamin stepped aside, or been on the losing side, there would be no issue to raise.

Finally, Emch takes on the characterization of the money spent by Blankenship:

Commentators almost invariably characterize Don Blankenship's expenditures through his foundation And For the Sake of the Kids as 'contributing $3,000,000 to Benjamin's campaign' or otherwise suggest that what Don Blankenship did constituted a 'campaign contribution' to Benjamin.

That is false. What Blankenship did was mount an 'issue' campaign against then-Justice Warren McGraw.

While this may have benefited Benjamin's campaign, Blankenship probably cared much more about who lost the election than he did who won it.

This is technically true, but disingenuous. Nobody has argued that Blankenship's money went directly to Benjamin or his campaign, but that he "contributed" to the campaign by helping to ensure McGraw's defeat.

As to whether Blankenship cared "more more about who lost the election than he did who won it," that's hardly relevant. Judicial elections in West Virginia are a zero sum game - for one candidate to lose, the other must win. There is no "none of the above" on the ballot. The only way for McGraw to lose was for Benjamin to win. Thus, if Blankenship cared at all, he cared who won.

I will agree with Emch on one thing. This case has attracted a host of hangers on with axes to grind and issues to press who don't have any connection to West Virginia. Alas, that is also part and parcel to how the US Supreme Court does business.

I only hope that when the Court is done with this case the state can move on to (a) getting a mid-level appellate court and (b) getting rid of judicial elections. Maybe Emch will agree with me on that.