This OpEd originally provided by The Charleston Gazette

March 2, 2008

Allan N. Karlin and John Cooper

Perception that justice can be bought harms the judiciary

It is time to say publicly what attorneys across the state are saying privately: Justice Brent Benjamin needs to join Justices Elliott Maynard and Larry Starcher and step down from hearing cases involving Massey Energy and its subsidiaries.

His continued involvement in Massey litigation endangers the public perception of the integrity of the Supreme Court of Appeals.

The problem facing our Supreme Court arises from the unprecedented, well-publicized involvement of Massey CEO Don Blankenship in Benjamin's election.

In August 2002, a West Virginia jury returned a $50 million verdict against subsidiaries of Massey Energy. In 2004, after the verdict and while the case was winding its way toward appeal, Massey CEO Blankenship embarked upon a personal crusade to defeat the incumbent justice and to elect Justice Benjamin to the Supreme Court.

Blankenship's electoral involvement was unusual. He was not one of many supporters donating to a judicial candidate. He was the CEO of a major corporation with a multimillion-dollar verdict against it, a verdict that he knew was likely to end up in the Supreme Court. With that verdict awaiting appeal, Blankenship orchestrated his own campaign, spending over $3 million of his own money to elect his candidate.

Benjamin won that election and has served our state ably as a justice on our Supreme Court, but the extraordinary nature of Blankenship's involvement in Benjamin's campaign and the size of Blankenship's personal financial expenditure on Benjamin's behalf have permanently and inextricably linked the names of Benjamin and Blankenship in the minds of so many residents.

Benjamin may sincerely believe that he can remain objective in Massey's cases, but as Maynard and Starcher have recognized in recusing themselves, the issue is not what an individual justice may believe about his ability to be fair; the issue is what others, including the public, may reasonably believe.

In fact, the rules that govern judicial conduct incorporate this understanding. Canon 3(E) of the Judicial Code of Conduct states: "[a] judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned."

Under this criterion, a justice should not only disqualify himself from cases where he concludes that he cannot remain impartial, but also from cases where there is a reasonable belief by one or more parties in the case or by the public that the justice may not be able to render an unbiased opinion. Thus, the focus of the canon is on the reasonable perceptions of others, not upon the justice's own belief in his ability to be fair.

The canon makes sense. Our judicial system can only maintain its legitimacy as long as judges and justices retain the confidence and trust of the public. When the public believes that judicial decisions depend more on the relationship between the judges and the parties than on the legal merits of the case, the credibility of our courts inevitably suffers. That credibility, once eroded, is not easily restored.

Given the unique history of Blankenship's involvement in Benjamin's election and code of conduct, it is not surprising that attorneys who often disagree in the courtroom concur that Benjamin should not continue to sit on Massey's cases now before the court. Nor is it surprising that West Virginians who know about Blankenship's involvement in the 2004 election "reasonably question" Benjamin's ability to impartially sit on cases involving Blankenship's companies.

The public perception is reasonable. Experience teaches us that whatever our personal beliefs about our own ability to be fair, it is often hard to set aside the conscious and unconscious bias that we accord to those who have so generously assisted us in reaching our goals.

The current problem is compounded by the fact that Benjamin, as acting chief justice, now appoints the judges who replace Maynard and Starcher in the pending Massey cases. Thus, Benjamin will not only sit in judgment on Massey cases but will also appoint two of the five judges who will participate in the decision. Although those of us in the State Bar know that the two judges appointed by Benjamin to date are judges of high ethical and moral character, the decision in which they will participate, whatever its outcome, will always be remembered for the political controversy which now surrounds it rather than the wisdom or logic of its outcome.

John Grisham's recent book "The Appeal" involves a corporate CEO who, after losing a multimillion-dollar verdict in Mississippi, spends millions to elect a new supreme court judge whom he believes will be favorable to his case on appeal. Grisham has publicly compared his story and his CEO to Blankenship's role in the election of Benjamin. The CEO in Grisham's book, however, supports his chosen candidate with millions of dollars in secret because, if the judicial candidate learns that the CEO has spent millions to elect him, that candidate, once elected, might recuse himself from hearing the CEO's case. Unfortunately, in West Virginia, that rule of disqualification does not yet seem to apply.

If the cases proceed along their present course, Benjamin may be remembered forever as the justice who refused to step down from the Massey cases. And, if the cases result in final decisions in Massey's favor, those decisions will forever carry the taint of Blankenship's money. Even other members of the Supreme Court who have acted appropriately in these matters are not likely to emerge untarnished in the public eye. Much of the public, most of the State Bar and many others throughout the country are dismayed, if not aghast, at the path that the Massey cases have taken. Fortunately, there is still time for Benjamin to reconsider, to step down and to preserve both his legacy and that of our Supreme Court of Appeals.

Karlin, a Morgantown lawyer, is a former chairman of the state's Lawyer Disciplinary Board. Cooper, a lawyer in Parsons, is a former member of that board's predecessor, the State Bar Ethics Committee.