Top court to hear W.Va. judicial bias case Tuesday

Should W. Va. justice have heard case against coal firm?

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The question of whether campaign contributions by one of West Virginia's most powerful business executives prevented justice from being done in that state's highest court gets a much anticipated hearing Tuesday before the U.S. Supreme Court.

The one-hour hearing will determine the outcome of more than 10 years of litigation between bankrupted West Virginia mining company owner Hugh Caperton and Massey Energy, the nation's fourth-largest coal producer.

Mr. Caperton wants the court to overturn a 3-2 ruling by West Virginia's Supreme Court last year. The decision threw out a 2002 lower court verdict ordering Massey to pay Mr. Caperton $50 million in damages.

The swing vote came from West Virginia Supreme Court Chief Justice Brent Benjamin. Mr. Caperton argues the justice should have not heard the case because he was elected with the help of more than $3 million in campaign spending by Massey Chief Executive Officer Don Blankenship.

At a time when the American Bar Association, current and former judges -- including former U.S. Supreme Court Justice Sandra Day O'Connor -- and other court officials are worried that increasingly generous spending in judicial elections is undermining the integrity of the court system, the case could provide a new standard for when judges who receive contributions must step aside.

Putting a fundamental constitutional issue to the test was not what Mr. Caperton, the cousin of former West Virginia Gov. Gaston Caperton, had in mind in 1998 when he hired Pittsburgh attorney David Fawcett to sue a Massey affiliate for fraud.

Mr. Fawcett, of Buchanan Ingersoll & Rooney, represents Mr. Caperton. Bruce Stanley, of Reed Smith, joined him in 2000 to represent Mr. Caperton's businesses.

The Pittsburgh attorneys are a study in contrast.

Mr. Fawcett, 50, is the son of the former president of the Allegheny County and Pennsylvania bar associations. He taught high school before earning his law degree from the University of Pittsburgh.

"There's a substantial amount of altruism in Dave," said attorney Cris Hoel, a former colleague at Buchanan Ingersoll. "Many people ... mistake his calm and reserved manner as a signal that he lacks tenacity and enthusiasm. Most of those people later learn that they were wrong."

Mr. Stanley, 49, is a native of Mingo County, W.Va., the same coal mining community that produced Mr. Blankenship and former West Virginia Supreme Court Chief Justice Elliott "Spike" Maynard.

Mr. Maynard heard the Caperton case the first time the court ruled in Massey's favor, 3-2, but recused himself when the case was reheard. He stepped aside after Mr. Stanley filed pictures with the court showing the chief justice and Mr. Blankenship vacationing together on the French Riviera in 2006.

Before earning a law degree at West Virginia University, Mr. Stanley was a reporter for the Williamson Daily News, which won awards for exposing corruption that led to prison sentences for public officials.

"He certainly has a feel for a situation involving possible government misconduct," said WVU law professor Patrick McGinley. "He has a very finely honed sense of justice and the meaning of the rule of law."

For them, the case is also a cause.

Mr. Stanley represented the widows of two miners who died in a January 2006 fire at Massey's Aracoma Alma No. 1 Mine in Logan County, W.Va. The suit was settled in December. Terms were not disclosed. In July 2007, Mr. Fawcett won a $220 million judgment against Massey for former Wheeling-Pittsburgh Corp., now owned by Russian steel producer Severstal.

Constitutionally, those matters pale in comparison to the issue at stake in Mr. Caperton's case.

"If people don't have faith in our court system to deliver fair and unbiased decisions, then what's left?" Mr. Stanley said.

At Tuesday's hearing, Mr. Fawcett and Mr. Stanley will take a back seat to former U.S. Solicitor General Theodore Olson, who will argue for Mr. Caperton. He will ask the court to give judges clearer guidance on when campaign contributions require them to recuse themselves. Their argument: Mr. Blankenship's campaign contributions "created an objective probability that [Justice Benjamin] was biased in favor of Massey."

Massey's attorneys counter that the Supreme Court has never ruled that the constitution requires judges to step down for a "probability of bias." Furthermore, most of Mr. Blankenship's money went to defeat Justice Benjamin's opponent in the 2004 election, not to elect Justice Benjamin, Massey's attorneys argued in their brief.

Legal experts said it will be hard for the Supreme Court to draw a line on the issue.

In a brief supporting Massey, 10 current and former state supreme court justices argued that drafting guidance based on the appearance of impropriety will encourage more lawyers to seek the disqualification of judges they believe aren't likely to rule in their favor. That would "lead the public to holding the judiciary in lower esteem," they wrote.

University of Pittsburgh law professor Arthur Hellman said if justices thoroughly question Mr. Caperton's attorneys about what the standard should be, that would signal they are looking for a way to rule in his favor without triggering a wave of recusals "that's potentially a huge drain on the court system."

Mr. Fawcett and Mr. Stanley have a simpler view. Having lived with the case for years as contributors poured millions of dollars into judicial elections, they believe clearer guidance is needed.

"If this case doesn't represent a floor, I'm not sure there is one," Mr. Stanley said.

Len Boselovic can be reached at or 412-263-1941.


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