Supremes reject brief in Massey case

March 20, 2009

scawvToday the U.S. Supreme Court rejected a supplemental brief lawyers for A.T. Massey Coal Company attempted to file in the case Caperton v. A. T. Massey Coal Co. In that case the Court is set to decide whether the failure of a judge to recuse himself from a case involving a campaign contributor violates the Due Process Clause.

In the brief, lawyers from the company sought to bring to the Court’s attention a press release from the West Virginia Supreme Court of Appeals, which showed data indicating that the judge in question, Justice Brent Benjamin, ruled against Massey in almost 82 percent of the matters brought before the court.

“According to information which was in the file or which was referenced in local news reports, all votes by Chief Justice Benjamin represented votes against the financial interests of Massey Energy of approximately $317 million,” the press release reads.

The Court did not indicate why the brief was rejected.



High court drama on tap

March 3, 2009

If you are going to be inside the U.S. Supreme Court building this morning, there is no doubt that you are in for a legal treat. Today the Supreme Court hears oral arguments in one of the most anticipated cases of the term: Caperton v. A.T. Massey Coal Co.

The facts of the case alone are compelling enough to draw a crowd: company gets hit with massive jury verdict, company almost wholly finances the multi-million-dollar campaign of an appellate judge, and once the judge is elected, then the company appeals.

If the justices’ questions about whether such a judge violates due process by refusing to recuse himself from his donor’s case are as lively as they were in yesterday’s DNA evidence case, today’s argument promises to be among the term’s most interesting.

freyolsonAdd the fact that the attorneys on either side of the case present a virtual legal Battle of the Titans: on one side, learned high court litigator Andy Frey from Mayer Brown; on the other, Supreme Court specialist Ted Olson from Gibson Dunn.

Today the court will be filled with everyone from reporters covering the case to students who have been studying the matter (including Prof. George Cochran‘s constitutional law class, which came all the way from the University of Mississippi School of law. DC Dicta had the pleasure of chatting with Prof. Cochran and the students about the case and the Court this past weekend.)

We’ve been watching this case since before certiorari was granted, and we’ll be there today, so stay tuned.

Friday morning briefing: Budget, taxation and representation

February 27, 2009

capitolfrontPresident Barack Obama unveiled his budget proposal this week, sending folks in the capital in numbers-crunching mode as they scrutinize the plan in search of the administration’s priorities. On Capitol Hill, a bill that would give bankruptcy judges the power to change the terms of mortgages in foreclosure proceedings hit a snag when Democratic lawmakers couldn’t quite hammer out all the details yesterday. Across the street, the Supreme Court justices conference today, and may serve up some fresh new grants of certiorari before the day is over.


‘Loaded’ voting bill passes: The Senate approved a bill to give the District of Columbia a seat in the House of Representatives. But the bill included an amendment that D.C. officials may not like too much: it repeals the District’s post-Heller gun restriction laws. (DCist, WaPo)

stevenssmileSeparation of powers: Justice John Paul Stevens doesn’t think Supreme Court justices should take their oaths in the White House. The practice, which has become popular with the most recent new justices, creates “incorrect symbolism” for the independent judicial branch, Stevens said. (AP)

State secrets in foreclosure crisis: The housing foreclosure crisis that has put millions of Americans out of their homes is being worsened by old, antiquated state laws that give homeowners far fewer legal protections than renters or credit card customers, according a new report from the National Consumer Law Center. (Lawyers USA)

Stimulating conversation: The recently enacted American Recovery and Reinvestment Act of 2009 contains several new tax credits and changes for both business and individual taxpayers. Most of the credits, however, are subject to income phase-outs. (Lawyers USA)

Short-term gains: Federal judges could get a pay post this year. Next year, not so much. (Legal Times)

The new argument against the death penalty: It costs too much

February 25, 2009

As states around the nation struggle to stretch their budgets to cover payrolls and expenses in this bad economy, opponents of the death penalty are pushing states to repeal the punishment – to save cash.

In Colorado, Kansas, Nebraska, New Hampshire, Maryland, Montana, New Mexico and other states, the discussion around bills seeking to end capital punishment is focusing on dollars and cents.

New Mexico Gov. Bill Richardson, a longtime supporter of the death penalty, said he is considering signing a bill there seeking to end capital punishment for a number of reasons. But the economic argument is “a valid reason in this era of austerity and tight budgets,” he said, according to The New York Times.

Opponents of ending capital punishment call the economic argument short-sighted, adding that the cost of increased crime down the road could dwarf any savings.

Peanut butter mess gets attention of Obama, FDA, lawyers

February 3, 2009

pbjIf you are perturbed by the recent peanut butter product recalls (or if your kids are not pleased to do without their beloved peanut putter crackers) you are not alone – a bunch of folks here in Washington are none too happy with the situation either.

President Barack Obama is promising a comprehensive review of FDA procedures after the salmonella outbreak that sickened hundreds of peanut product eaters, and possible cause the death of at least eight.

“I think that the FDA has not been able to catch some of these things as quickly as I expect them to catch,” Obama said yesterday during an NBC interview. “At bare minimum, we should be able to count on our government keeping our kids safe when they eat peanut butter.”

Meanwhile the FDA has launched a criminal investigation into the Georgia plant where salmonella and other food violations were found even after state inspector approval.

Meanwhile, lawsuits are already beginning to be filed, and personal injury attorneys keeping close watch on the developments in the capital, Georgia and across the country.

Amici line up in support of petitioner in W.VA recusal case

January 8, 2009

The Supreme Court is asking whether a judge’s refusal to recuse himself from a case involving his biggest campaign contributor violated the Due Process Clause. And a whole lot of people are answering “yes.”

This week amicus briefs in support of the petitioner in Caperton v. A.T. Massey Coal Co were due, and a host of groups – including coalitions of judges and former judges, the American Bar Association and the American Association for Justice – are all urging the Court to set clear recusal standards that would prevent situations like the one that happened in a multi-million dollar West Virginia appeal.

benjaminThe case stems from a $50 million verdict against Massey Coal. The company’s CEO contributed $3 million to the election campaign of West Virginia Supreme Court of Appeals Justice Brent Benjamin while the company was preparing to appeal the verdict. The contribution was more than half the total amount spent on the campaign.

Benjamin won a seat on the court, but rejected a motion to recuse himself from considering the company’s appeal, despite the hefty campaign contributions made be the company’s CEO. He was later the deciding vote in the court’s 3-2 decision overturning the verdict against the company.

One amicus brief filed this week by 27 former state high could chief justices and judges – including a former chief judge from West Virginia – urged the court to require recusal. “Amici have recused from cases based on the appearance of impropriety, both on motion and sua sponte, even though they believed they could judge fairly,” the judges argue in the brief. “Recusal in such cases is an essential prophylactic to preserve the due process rights of the litigants. It is also an important means of preserving public confidence in the judiciary.”

In another brief, the Brennan Center for Justice, the Campaign Legal Center, and the Reform Institute argue: “The $3 million in expenditures; the fact that those expenditures represented more than all other financial support for Justice Benjamin combined; the sole interested source of those funds; the timing of the expenditures; and the other facts of this case are so egregious-by today’s standards at least-that they offer the Court the ideal opportunity to reinforce one of the most fundamental rights in any system based on the rule of law: the right to a fair hearing before an impartial arbiter.”

In it’s brief, the AAJ urged the Court to adopt “a due-process requirement of recusal when great financial resources, well beyond the scope of legislated limits, are contributed by those involved in a pending matter that the candidate may be called upon to decide if elected.”

The Conference of Chief Justices, a group comprised of the chief justices and chief judges of the highest courts of each state, the District of Columbia, and the U.S. territories, stipulated that its amicus brief was in support of neither party. Still, the group said that recusal is necessary in conflict-of-interest cases to ensure Due Process. “[U]nder certain circumstances, the Constitution may require the disqualification of a judge in a particular matter because of extraordinarily out-of-line campaign support from a source that has a substantial stake in the proceedings,” the Conference’s brief argued.

Amicus briefs in support of petitioner Massey Coal are due later this month.

What’s the holdup on the W.Va. cert petition?

November 11, 2008

scawvFolks in West Virginia and here in Washington are wondering why the Supreme Court has yet to rule on a certiorari petition asking whether due process requires the state’s elected judges to recuse themselves from cases involving their top campaign contributors.

That case, Caperton v. A.T. Massey Coal Co., has been on the justices’ consideration list for their last four private conferences. Yet, no action has been taken by the Court. An array of groups including The New York Times to the American Bar Association has urged the Court to take up the case, reports The Charleston Gazette.

Some think the delay is an indication that the Court has already made up its mind. “I always end up looking bad when I predict what the Court is going to do, but they are probably not going to grant cert and suggest that someone is more than likely writing an opinion regarding the denial of cert,” said Mark T. Stancil, an attorney at the Washington office of Robbins, Russell, Englert, Orseck, Untereiner, & Sauber at a recent panel discussion hosted by the American Enterprise Institute for Public Policy Research.

But Andrew Frey, an attorney petitioning the Court for certiorari in another West Virginia case involving appellate review – one of three the court is considering – told Lawyers USA last month that the Court could be waiting until the filings are in for all the cases to decide any of them. In that case, the Court’s order should be expected some time in December. More on the three cases can be found here on Lawyers USA and here from DC Dicta.