It’s a troubling story line: A well-heeled and powerful group with a vested interest in the outcome of a lawsuit contributes millions to land a favored justice on a supreme court where its case will likely land.
John Grisham used it in his bestseller The Appeal.
The U.S. Supreme Court considered the true-to-life version arising out the battle between coal-mining executives in West Virginia in Caperton v. Massey Coal.
There, the court held that due process requires the justice on the receiving end of the company’s millions to refrain from participating in any review of its case.
And now, according to many fair courts advocates, the story line has landed here in a case concerning something more fundamental and compelling than a simple monetary verdict – the right to vote.
The case, Dickson v. Rucho, arises out of the 2011 GOP redistricting plan which critics say among other things dilutes the minority vote in North Carolina.
Plan challengers say that the powerful Republican State Leadership Committee, the creator of that redistricting plan, contributed millions in support of conservative Justice Paul Newby in his heated 2012 battle with Court of Appeals Judge Sam Ervin IV.
As the political balance of the court hung in the balance, the group suspected that the conservative Newby would provide swing vote in favor of its redistricting plan when the pending challenge to the plan landed in state supreme court.
Twice now parties in that case have asked Newby to sit this one out, arguing that the U.S. Supreme Court’s decision in Caperton v. Massey Coal demanded as much.
And twice, the court said no.
Why, no one knows.
The court held no argument by attorneys on the issue and released no written decision detailing its underlying rationale.
That silence only serves to fuel suspicion of partisan bias on the court – a suspicion that may not be so far-fetched.
In an eye-opening new book, “The Price of Justice: A True Story of Greed and Corruption,” Washington writer Laurence Leamer tells the back story of the Caperton case out of West Virginia.
“It’s the story of two Pittsburgh lawyers, Dave Fawcett and Bruce Stanley, and their 15 year-fight to bring justice to a small coal mine owner whose company has been driven into bankruptcy by Don Blankenship and Massey Energy, the most powerful coal baron in American history,” Leamer said.
With extensive detail and inside information – including reports from a former justice who kept a diary – Leamer offers a riveting tale of horse-trading and corruption on the West Virginia Supreme Court.
Could that be happening on the North Carolina Supreme Court? Most voters prefer to think not.
At the very least, though, Leamer’s book offers a cautionary tale about what happens when millions infiltrate our judicial elections and voters fail to ask questions from a court that refuses to answer.
Caperton started out as a business dispute between West Virginia coal mining executives Hugh Caperton, owner of Harman Mining Company and Don Blankenship, then head of the much larger Massey Energy.
Caperton alleged that in 1997 Blankenship reneged on a contract to buy all of Harman’s coal output and intentionally pushed Harman into bankruptcy.
After a trial in 2002, a jury agreed, awarding Caperton $50 million in damages.
Blankenship then set out to secure a better result in the five-justice state Supreme Court. He contributed $3 million through a group he founded called “And for the Sake of the Children” to support an unknown Republican challenger, Brent Benjamin.
Benjamin won, and as the $50 million verdict made its way to the West Virginia high court, lawyers for Caperton asked Benjamin to recuse himself from the case. He refused.
With Benjamin secure on the bench — along side Blankenship’s close friend, Justice Elliot Maynard – the court heard the appeal in October 2007. When one of Caperton’s attorney stood to begin his argument, Maynard actually walked out of the courtroom, returning only after that attorney finished.
The justices met the next day to discuss the case, along with other pending appeals. As noted in a diary entry by then Justice Larry Starcher, it took less than a minute for the justices to reach the 3-2 decision overturning the verdict:
“We decided the now $75 million Massey Energy case in less than 60 seconds. (HONEST!) The Massey case obviously was pre-decided by the ‘evil three.’ Benjamin and Maynard are buddies with Don Blankenship and Robin [Davis] kisses their butts to them with her husband [a top state trial lawyer] on his cases. The ‘good ole boy’ system wins the day.”
Caperton and his lawyers remained undeterred, insistent that Benjamin should have recused himself from the case. They persuaded an unlikely ally, veteran Supreme Court lawyer and known Republican heavyweight Ted Olson to take the case to U.S. Supreme Court.
Olson framed the appeal in due process terms, telling the court during argument in March 2009 that “the words ‘due process’ are in the Constitution, and that is what we are talking about today. This court has repeatedly said that due process means a fair trial in a fair tribunal.”
Three months later, the U.S. Supreme Court agreed with Olson that Benjamin should have recused himself from the Caperton appeal.
In a 5-4 opinion, Justice Anthony Kennedy wrote that “there is a serious risk of actual bias when a person with a personal stake in a particular case has a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judges election campaign when the case was pending or imminent.“
Caperton loses his job and his company and has yet to see a dime of the $50 million verdict. His battle with Blankenship continues, having made another run through the West Virginia courts and then through courts in Virginia, where it is now set for retrial of the original dispute in April.
And other story lines develop over that 15-year run.
Fawcett and Stanley take on the villain Blankenship – depicted as ruthless in his pursuit of profits above all else, including life – in other venues.
Blankenship’s accused of allowing Massey to pollute nearby waters, contributing to disease and ailments suffered by hundreds of area residents.
And he’s pegged with the blame for sloppy and reckless mining practices that result in tragedy, including the 2010 explosion at Upper Big Branch in which 29 miners were killed. Four Massey executives were convicted after that incident and, according to Leamer, the same fate may be headed Blankenship’s way.
But it’s the manipulation of the courts by the wealthy and powerful that provides the universal theme.
Is West Virginia just an outlier, or can the same be happening in courts elsewhere?
According to Leamer, who’s traveled across the country speaking to groups about his book and the Caperton case, there are plenty of horror stories.
“I couldn’t believe how bad it was,” he said about what he learned in West Virginia. “I couldn’t believe that this was our country. We view supreme courts as some sort of sacred place. But those black robes hide an awful lot sometimes. We see justices sitting up there and we think that they’re honorable and fair, but we don’t know what’s really going on there.”
Can it be happening in North Carolina? Most of us would like to think not, that our justices are in fact honorable and fair.
But the court’s silence in the face of questions is deafening.
And with an election cycle ahead that will involve four seats on the court and unlimited fundraising (now that public financing is gone), the court’s insistence on secrecy is unsettling.
Voters, and journalists, have to be vigilant, Leamer said. They have to ask the hard questions.
And demand answers.
(Look for excerpts from the interview with Laurence Leamer to be posted next week.)