Gavel Grab

Archive for the 'Caperton' Category

Will Judicial Recusal Issue Be Considered by High Court Again?

If the U.S. Supreme Court were to take up a judicial recusal appeal from Wisconsin argued on the basis of Caperton v. Massey, it could help set ethics standards nationwide, a Mother Jones article says.

Caperton is a landmark Supreme Court ruling about runaway special interest spending in judicial elections. In the current legal dispute, reporter Pema Levy writes, the high court could be asked to decide whether two Wisconsin Supreme Court justices should have recused from a case involving a campaign finance investigation. The Wisconsin court’s ruling shut down the investigation  of possible violation of campaign finance laws by Gov. Scott Walker’s campaign and conservative groups in 2011 and 2012 recall elections. Read more

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Blankenship Convicted After Fatal Coal Mine Explosion

s-DON-BLANKENSHIP-largeA federal jury in West Virginia convicted Don Blankenship, former CEO of Massey Energy, on Thursday of a charge of conspiring to violate mine safety in the wake of a 2010 blast that killed 29 workers.

When Blankenship was CEO of Massey Energy, his big spending to elect a top West Virginia  judge led to a landmark U.S. Supreme Court decision in 2009 about runaway spending in judicial elections, Caperton v. Massey. The political spending episode became a poster child for judicial reform advocates.

A New York Times article said the jury acquitted Blankenship of charges of  making false statements and securities fraud. The Associated Press said he was convicted on a misdemeanor count, and acquitted on more serious counts. He could face up to a year in prison.

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Scholar Spotlights ‘Revelations’ Years After ‘Caperton’

Two recent revelations show that Supreme Court Justice Anthony Kennedy was right when he wrote in Caperton v. Massey about runaway spending in a state judicial election and getting access to, and ingratiation from, elected officials, election law scholar Rick Hasen writes at National Law Journal:

  • Then CEO Don Blankenship of Massey Energy, the big spender in the Caperton case, is on trial on charges in a coal mine explosion. At trial, a recording was played in which he rued that a picture of him and a state Supreme Court justice was “all over WSAZ,” a TV station. Anyway, Blankenship said, “I won…saved Massey $70 million.” Photos of Blankenship and that justice vacationing in France were published; Blankenship’s spending was in support of a candidate for the high court, who once elected, declined to recuse in civil litigation involving Massey and then cast a deciding vote in favor of striking down a $50 million award against the company.
  • The latter justice, Brent Benjamin, recently told a group at the University of Virginia, “I was tone deaf in not recusing myself in Caperton.”

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Commentary: Prosser Off Base in Declining to Recuse

justice-scalesWisconsin Supreme Court Justice David Prosser relied on weak legal arguments when he declined to recuse himself from a court opinion that shut down a controversial campaign finance investigation, Matt Rothschild of the Wisconsin Democracy Campaign writes at

Prosser recently issued a 15-page explanation of why he declined to recuse (see Gavel Grab). A special prosecutor had asked him and another justice to do so, pointing to spending by several groups involved in the investigation that benefitted the campaigns of Prosser and the second justice.

Rothschild disputes specific legal points cited by Prosser but also looks at the case through the lens of a landmark U.S. Supreme Court ruling about runaway judicial election spending, called Caperton v. Massey: Read more

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Wisconsin ‘John Doe’ Ruling Stirs Ongoing Controversy

630px-Seal_of_WisconsinThe Wisconsin Supreme Court’s ruling that there were no violations of campaign finance laws by Gov. Scott Walker’s anti-recall campaign and conservative groups continues to stir controversy on both sides. The ruling in the “John Doe” case  effectively halted further investigation of the alleged collusion.

In a scorching commentary supporting the ruling, The National Review Online  said the investigation of alleged violations was nothing short of a “witch hunt” perpetrated by state Democrats.  A report in the Wisconsin State Journal noted that the Wisconsin court’s majority described the investigation as a “dragnet” involving “highly publicized raids” of private homes.

But a piece in the LaCrosse Tribune  focused on the failure of several state Supreme Court justices to recuse themselves, although they had benefited from millions of dollars in campaign spending by the same conservative groups at the center of the case.  Prosecutors might have the option to appeal the ruling in federal court, the Tribune suggested, citing legal experts who named the U.S. Supreme Court’s 2009 ruling in the landmark Caperton case as a possible precedent.

In the same Tribune piece a conservative legal scholar disagreed, noting that “if elected judges had to recuse themselves from cases involving groups that donate to their campaigns, then so would judges who were targets of campaign spending,” according to the report.  Rick Esenberg of the Wisconsin Institute for Law and Liberty told the paper that if a broad view of the Caperton decision were adopted, “‘it’s basically impossible to have judicial elections’ because there will always be an array of political parties supporting or opposing judges.”

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As Blankenship Prepares for Trial, Renewed Attention to ‘Caperton’

The U.S. Supreme Court’s 2009 ruling in a landmark runaway election spending case, Caperton v. Massey, is getting renewed attention as a key player in the West Virginia Supreme Court election at issue prepares to face a criminal trial.

In “The People v. the Coal Baron,” a New York Times magazine article, writer David Segal profiles Donald Blankenship, former CEO of Massey Energy, who faces criminal charges in connection with a 2010 explosion at the Upper Big Branch coal mine that killed 29 men. The article examines Blankenship’s political influence when he was Massey CEO. Read more

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Column: W.Va. Justice Benjamin to Face a Re-Election Challenge

scAttorney Beth Walker is preparing to announce that she will seek a seat on the West Virginia Supreme Court held by Justice Brent Benjamin, who’s seeking re-election, a column in the WV MetroNews reports.

Walker unsuccessfully sought election in 2008 as a Republican, and Justice Benjamin is a Republican, but judicial elections in West Virginia will be non-partisan starting next year. Walker’s announcement would represent a “substantial challenge” to the incumbent, Hoppy Kercheval writes in the column, but the trial attorneys belonging to the West Virginia Association for Justice have not been heard from yet.

Justice Benjamin had a role in events that preceded a landmark U.S. Supreme Court ruling in 2009, Caperton v. Massey, about runaway judicial election spending. The U.S. Supreme Court said Justice Benjamin could not hear a case involving a coal company whose chief executive had spent $3 million toward the judge’s election.

Citing the 14th Amendment Due Process Clause, which grants every litigant the right to an impartial trial, the high court said a “serious risk of actual bias” was created when Justice Benjamin cast the tie-breaking vote to overturn the jury’s decision in the case.

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Wall Street Journal Editorial Opposes Wisconsin Recusal Motion

A special prosecutor’s recusal request before the Wisconsin Supreme Court has garnered national attention, including a supportive New York Times editorial (see Gavel Grab) and a Brennan Center for Justice amicus brief. Now a Wall Street Journal editorial argues against recusal.

The editorial is entitled, “The Left’s Recusal Gambit: A prosecutor and his allies try to rig a judicial appeal in Wisconsin.” (It is searchable through Google). The editorial’s authors say they reviewed the motion that one or more Wisconsin Supreme Court justices recuse themselves from hearing challenges to a campaign finance investigation. Four justices are reported to have benefited from multimillion-dollar spending by three groups involved in the cases. Read more

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Op-Ed: N.C. Should Not Implement Partisan Judicial Elections

law-cash-21816475North Carolina is poised to become the ninth state to elect judges through partisan elections, according to an op-ed on

This proposal is the latest move to reverse reforms passed in 2002, which included nonpartisan elections and a public financing program. “The public financing program gave candidates a few hundred thousand dollars to campaign, if they qualified by raising small donations. The 2002 bill was a bipartisan effort, and judges across the ideological spectrum lauded public financing,” the op-ed notes. Last year, the legislature repealed the public financing measure, and the appellate court campaigns spent nearly $5 million together.

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Maryland Considers Retention Elections for Trial Judges

Thomas V. Mike Miller

Thomas V. Mike Miller

Maryland Senate President Thomas V. Mike Miller wants to put an end to contested elections for the state’s circuit court judges. The Baltimore Sun reports he has called to replace them with retention (up-or-down) elections.

The judges, who preside over Maryland’s more serious criminal and civil cases, are appointed by the governor for a 15-year term, subject to Senate approval. When that initial term is up, the judges must run in “the next possible election,” the article explains. The judges usually run in (and win) both parties’ primary elections, but sometimes a challenger will win one primary, forcing a general election. Miller called this system, when judges are forced to raise money for electoral campaigns, “very unseemly,” and many of his colleagues agree.

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