Inside NACDL: 'Mining' Our Own Business

Inside NACDL Norman L. Reimer

Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.

Why in the world should NACDL care about a fight over mining rights between two coal companies in Virginia? What possible interest can the organized criminal defense bar have in a civil case that has nothing to do with Fourth, Fifth, or Sixth Amendment rights? The answer is simple. The outcome of this fight over an Appalachian mine, which was argued in the U.S. Supreme Court on March 3, 2009, may have a profound impact on the quality of justice in every criminal case in the 39 states where judges are elected.

In Caperton v. A.T. Massey Coal Co., No. 08-22,1 the Supreme Court will decide whether the 14th Amendment’s Due Process Clause requires judicial recusal where a judicial candidate accepts millions in campaign funds from a party and then, after successfully winning the judgeship, decides a case involving that party. On January 5, 2009, under the leadership of a team of brilliant lawyers including Pamela Harris, co-chair of NACDL’s Amicus Committee, Stephanie G. Wheeler, Maia S. Fisher, and D. Andrew Pietro, NACDL submitted an amicus brief urging reversal and disqualification of the judge.2 

The Background

Hugh M. Caperton purchased the Harman mine in Buchanan County, Va., in 1993.3 Within a year, the output of the mine increased dramatically. This attracted the attention of A.T. Massey Coal Co. and CEO Don L. Blankenship, who coveted the valuable mine. A dispute ensued that in 1998 resulted in Caperton’s bankruptcy and a suit by Caperton and his mining companies against Massey and affiliated companies in the Circuit Court of Boone County, W.Va. In August 2002, after an extensive trial, a jury found Massey liable for tortuous interference with existing contractual relations, fraudulent misrepresentation, and fraudulent concealment. The jury awarded Caperton more than $50 million in compensatory and punitive damages.4 

Massey’s Creative Appellate Strategy

Don Blankenship then embarked upon an interesting enterprise. He set out to alter the composition of the Supreme Court of Appeals of West Virginia (the state’s highest court), the court that would eventually hear Massey’s appeal. A little-known lawyer, Brent Benjamin, prepared to challenge the re-election of Supreme Court Justice Warren McGraw. Blankenship and organizations affiliated with him invested outsize sums in support of Benjamin. They spent $3 million on “independent” advertisements in support of Benjamin. As outlined in the successful certiorari petition, Blankenship was responsible for 60 percent of the total financial support for the Benjamin campaign, a sum that was three times greater than Benjamin’s own campaign committee expended.5 

Benjamin won the 2004 election, unseating Justice McGraw. Following the 2002 judgment, Massey’s lawyers had filed numerous post-judgment motions, thereby delaying the filing of a petition for review in West Virginia’s highest court until October 2006, after Brent Benjamin’s election.

With the case scheduled to be heard by the court that now included Justice Benjamin, Caperton moved to recuse Benjamin, asserting that the extraordinary level of campaign support provided by Blankenship created a constitutionally unacceptable appearance of bias.6 Benjamin declined to recuse himself. In a subsequent written opinion, Justice Benjamin insisted that his participation was wholly consistent with due process and that in the absence of actual bias or prejudice, appearances should never alone serve as a basis for a due process challenge to a judge’s participation in a case.7 

Sure enough, on both the main appeal, and in a subsequent motion for rehearing, Justice Benjamin cast the decisive vote to overturn the $50 million judgment against Don Blankenship’s companies. Not a bad return on the $3 million investment.

In November 2008, the Supreme Court granted Caperton’s petition for a writ of certiorari.

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Implications for the Criminal Justice System

These facts are bad enough. But now comes the part that will trigger a severe case of déjà vu for criminal defense lawyers throughout the country. What do you think was the theme of the Blankenship-financed campaign to elect Brent Benjamin? You guessed it. Justice Warren was purportedly “soft on crime.” Blankenship’s campaign support was funneled through a “527” organization8 called “And for the Sake of the Kids,” whose message was that the incumbent Justice McGraw’s policies were bad for children and their future.9 Among the hundreds of advertisements were television ads that accused the justice of supporting the release of a child molester and permitting him to work in a high school. One ad made the following claim: “Letting a child rapist go free? To work in our schools? That’s radical Supreme Court Justice Warren McGraw. Warren McGraw — too soft on crime. Too dangerous for our kids.”10 

Recurring Nightmare

Demagoguery on issues related to the criminal justice system is a common phenomenon in all elections. From Nixon’s “law and order campaign” to the elder Bush’s “Willie Horton” imagery, promises to crack down on criminals and warnings that the other candidate is too soft are a staple of American politics. But the increasing prevalence of these irrational appeals to fear in the context of judicial elections undermines the bedrock of our legal system. Here are some disturbing examples, which NACDL highlighted in its amicus brief:

  • A candidate for a seat on the Illinois Supreme Court bragged in his campaign materials that he had “never written an opinion reversing a rape conviction.”11 
  • A candidate for an Indiana judgeship pledged to “stop suspending sentences” and to “stop putting criminals on probation.”12 
  • A Florida judicial candidate “pledged her support and promised favorable treatment for certain parties and witnesses who would be appearing before her (i.e., police and victims of crime).”13 

Direct appeals to constituencies in furtherance of a tough-on-crime agenda are just one way that judicial independence in criminal cases is placed at risk. Increasingly, corporate interests, whose true agenda has nothing whatsoever to do with criminal justice, have honed the art of exploiting a judge’s rulings in criminal cases. That’s precisely what occurred in Caperton v. Massey. And just this past summer, attendees in Milwaukee at NACDL’s annual meeting heard compelling remarks from Justice Louis Butler of the Wisconsin Supreme Court, within days of his having been driven from office. Special interests, who objected to Justice Butler’s rulings in certain civil cases, supported his opponent, who labeled Justice Butler “Loophole Louis” for rulings favoring defendants in criminal cases.14 

The mixture of big money and judicial electoral politics is a witches’ brew that is toxic to our criminal justice system. It fundamentally corrupts the independence of judges and impugns the impartiality of the judicial system.

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Justice Benjamin grounded his decision not to recuse upon the cramped notion that only actual bias compels disqualification. But how can an aggrieved litigant ever meet a standard that requires proof as to the operation of a judge’s mind? Is inherent bias not self-evident when a judge owes his position to a party appearing before him? Last month the Illinois Legislature unanimously voted to remove Gov. Rod Blagojevich for the mere act of discussing a quid pro quo for a senatorial appointment. Can anyone seriously doubt that when in fact the bulk of the funds expended to procure a judge’s seat were provided by a party, a stench of impartiality necessarily pollutes the judicial outcome?

NACDL’s Position

An inherent challenge for the Supreme Court in deciding the Caperton case is determining where to draw the line. How much campaign support is necessary to trigger a recusal requirement under the Due Process Clause? Because the Court has recently affirmed the constitutionality, if not the desirability, of flawed judicial election procedures,15 and has struck down limits on judicial campaign speech,16 money will continue to play a vital role in judicial elections. NACDL does not in this case assert that judicial elections, judicial campaign speech, judicial campaign contributions, and judicial electioneering necessarily violate the Due Process Clause. Nevertheless, the Court must recognize that there comes a point where massive campaign support so obviously suggests impartiality as to require judicial disqualification. And this case is clearly beyond that point.

Simply put, if the Due Process Clause does not compel judicial recusal under the extraordinary facts of the Caperton case, then we truly will have reached a point where justice will be for sale to the highest bidder. And the implications will have the most profound impact on impartiality and independence in the criminal justice context. It is now clear beyond dispute that this is the sphere in which judges are most susceptible to attack. That is why this civil fight between two Appalachian mining companies is of enormous importance to America’s criminal defense bar and the constitutional values we safeguard.


  1. Caperton v. A.T. Massey Coal Co., — S.E.2d —, 2008 WL 918444 (W. Va.), cert. granted, 129 S. Ct. 593 (2008).
  3. John Gibeaut, Caperton’s Coal, ABA J., February 2009.
  4. The jury essentially found that through various questionable transactions, Massey deprived Caperton’s company, Harman Mining and Sovereign Coal Sales, of its prime customer and procured the land surrounding the mine, thereby impeding Harman’s access to road or rail.
  5. Petition for Writ of Certiorari, Caperton v. A.T. Massey Coal Co., 2008 WL 2676568, at 5-6 (No. 08-22).
  6. Indeed, all told, Caperton filed three recusal motions.
  7. Petition for Writ of Certiorari, Caperton, 2008 WL 2676568, at 9 (No. 08-22).
  8. For the most part, “527” organizations are formed to fund attack ads during an election campaign. Formed under 26 U.S.C. § 527, generally these organizations are not subject to contribution limits.
  9. Petition for Writ of Certiorari, Caperton, 2008 WL 2676568, at 6 (No. 08-22); Tom Diana, W. Va. Coal Executive Works to Oust McGraw, Wheeling News-Register, Oct. 25, 2004; Brad McElhinny, Big Bucks Backer Felt He Had to Try, Charleston Daily Mail, Oct. 25, 2001, at 1A.
  10. Petition for Writ of Certiorari, Caperton, 2008 WL 2676568, at 6 (No. 08-22); citing Deborah Goldberg, Brennan Center Just., The New Politics of Judicial Elections 4-5 (2004).
  11. Buckely v. Ill. Judicial Inquiry Bd., 997 F.2d 224, 226 (7th Cir. 1993).
  12. In re Haan, 676 N.E.2d 740, 741 (Ind. 1997).
  13. In re Kinsey, 842 So.2d 77, 89 (Fla. 2003) (per curiam).
  14. Debra Cassens Weiss, ABA J., Wisconsin Justice Dubbed ‘Loophole Louis’ in TV Ads, in_tv_ads.
  15. New York State Board of Elections v. Lopez Torres, 128 S. Ct. 791 (2008) “I think it appropriate to emphasize the distinction between constitutionality and wise policy. Our holding with respect to the former should not be misread as endorsement of the electoral system under review. …” (Stevens, J., concurring); “When one considers that elections require candidates to conduct campaigns and to raise funds in a system designed to allow for competition among interest groups and political parties, the persisting question is whether that process is consistent with the perception and the reality of judicial independence and judicial excellence.” (Kennedy, J., concurring).
  16. Republican Party of Minnesota v. White, 536 U.S. 765, 122 S. Ct. 2528 (2002).

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