By By Bob Martin, The Alabama Scene
The U. S. Supreme Court, by a narrow 5-4 vote, has handed down a decision which could eventually remove the “Justice for Sale” signs that welcome people to Alabama at every border crossing. The ruling came in a case from West Virginia, where competing mining interests had won a $50 million award against A.T. Massey Coal Co.
The case was appealed to the state supreme court, where the award was overturned. The decision in favor of A.T. Massey Coal was decided by a 3-2 vote, one of the three cast by Chief Justice Brent Benjamin. Benjamin was elected to the court in a bitter campaign, in which one contributor, Donald L. Blankenship, the CEO of Massey Coal, gave over $3 million to his campaign.
Benjamin refused to step aside from the appeal even though Blankenship contributed more than 60 percent of the total amount spent to support Benjamin’s campaign. After winning election to the court, Benjamin cast the deciding vote in the court’s 3-2 decision overturning that verdict. Although the canons of judicial ethics require a judge to step aside when facts would create an appearance of impropriety, Benjamin refused to do so, insisting that no reasonable person would think he was biased just because his campaign was mainly financed by Massey’s CEO.
According to Theodore B. Olson, former Solicitor General of the United States and counsel of record for the Petitioners, “The improper appearance created by money in judicial elections is one of the most important issues facing our judicial system today and a line needs to be drawn somewhere to prevent a judge from hearing cases involving a person who has made massive campaign contributions to benefit the judge.”
Justice Kennedy, writing for the majority, concluded that given the “serious risk of actual bias,” the Due Process Clause required the recusal of Benjamin. Birmingham lawyer H. Thomas Wells, Jr., President of the American Bar Association, said he “applauded the decision.”
Business interests and trial lawyers have both contributed huge amounts of cash to elect judges who would favor their side. At present corporate business money, mainly because there is much more of it available, is winning the battle. According to the Brennan Center for Justice at New York University, the U.S. Chamber of Commerce got involved in 13 judicial races in 2004 and won 12. Nationwide in 2006, business donors contributed twice as much to state supreme court candidates as lawyers, according to the National Institute on Money in State Politics.
The winner of a $9 million campaign for the Illinois Supreme Court in 2004 was supported by $350,000 in direct contributions from employees, lawyers and others directly involved with State Farm Insurance and by an additional $1 million from larger groups with which State Farm was involved. Upon taking the bench, the “bought” justice cast a vote ending proceedings on a $456 million claim against State Farm.
The voters in 39 states, including Alabama, elect some or all of their judges. Here we elect all appeals court judges and all the judges on the two major trial courts and the probate courts. The only judges not elected are at the municipal level and they are appointed by mayors or city councils.
The tort wars invaded Alabama in the mid-to-late 1980’s and by 1999 corporate interests had totally overwhelmed the trial lawyers and taken complete control of the Alabama Supreme Court and the two other appeals courts, a position of dominance which they still hold. The amount of money spent by both sides has been obscene.
Unfortunately for Alabama, last week’s ruling may not provide much relief in the short term. We now know the nation’s highest court thinks the bright line for contributions for one individual is around $3 million, but what about political action committees (PACS) or some third-party group where donors can virtually hide their contributions? Third-party groups spent over a million dollars in a recent race for the State Supreme Court between Democrat Deborah Bell Paseur and Republican Greg Shaw. In that election, an out-of-state outfit ran thousands of television ads attacking Paseur and supporting Shaw and these groups do not have to disclose their donors.
Perhaps the high court will expand this ruling to cover PAC and third party donations to candidates. They too violate the due process principle of fair and impartial justice. Until then or when Alabama’s laws are changed justice remains for sale in our state.
Bob Martin is editor and publisher of The Montgomery Independent. E-mail him at: bob@montgomeryindependent.com