(reposted w/permission from fossilagenda.com)
Money and the Courts
In June, 2009, the United States Supreme Court, in a 5-4 decision with conservatives Scalia, Roberts, Alito and Thomas in the minority, held that the appearance of judicial bias could be so “extreme” as to require a judge to withdraw from hearing a case.
Caperton et al v. A.T. Massey Coal Co, Inc., et al. began after a West Virginia jury decided that Massey coal defrauded Caperton by failing to uphold their end of a contract. Caperton won a $50 million judgment. Unsurprisingly, Massey Coal appealed.
After the verdict, but before the appeal, West Virginia held judicial elections. West Virginia Supreme Court of Appeals Justice Warren McGraw, an incumbent, was challenged by Brent Benjamin. The victor would hear Massey’s appeal. Massey’s Chairman, President and CEO, Don Blankenship, favored Brent Benjamin:
In addition to contributing the $1,000 statutory maximum to Benjamin’s campaign committee, Blankenship donated almost $2.5 million to “And For The Sake Of The Kids,” a political organization formed under 26 U. S. C. §527. The §527 organization opposed McGraw and supported Benjamin. Blankenship’s donations accounted for more than two-thirds of the total funds it raised. This was not all. Blankenship spent, in addition, just over $500,000 on independent expenditures—for direct mailings and letters soliciting donations as well as television and newspaper advertisements[...]Benjamin won.
To provide some perspective, Blankenship’s $3 million in contributions were more than the total amount spent by all other Benjamin supporters and three times the amount spent by Benjamin’s own committee. Caperton contends that Blankenship spent $1 million more than the total amount spent by the campaign committees of both candidates combined.
Caperton, citing Blankenship’s electoral advocacy on Benjamin’s behalf, asked Benjamin to recuse himself from hearing the appeal. Benjamin refused, claiming his ability to remain objective was not in any way impaired.
Benjamin heard the appeal and untimately joined a 3-2 majority opinion (over an unusually vehement dissent) that overturned the trial court’s judgment and the $50 million award. Caperton, unsurprisingly, moved for a rehearing.
Again, Benjamin was asked to recuse, and again he refused. (The reader may find it interesting that another judge, after pictures surfaced showing him cavorting with Blankenship on the French Riviera, did withdraw from the case.)
Once again, the court decided in Massey’s favor, 3-2, with Benjamin in the majority.
The Supreme Court of the United States held that under these “extreme” circumstances, Benjamin’s failure to recuse violated the Constitution’s guarantee of Due Process.
Here’s what you need to take away from these facts:
- The four Justices in the Court’s conservative bloc” would have allowed the West Virginia decision to stand, despite what appeared to be a clear conflict of interest.
- Don Blankenship, then CEO of Massey energy, spent over 3 million dollars on a single judicial election in a small state, and his candidate was elected.
- Massey’s financial largess may or may not have determined of the outcome of the election, but this tale suggests how big money can influence and distort the democratic process as well as legal outcomes.
But the significance of this case is even broader.
Six months later, the United States Environmental Protection Agency issued what is called an “Endangerment Finding” for carbon dioxide. The finding was necessary to establish the EPA’s authority to regulate CO2 as a pollutant.
Just two weeks later, the finding was challenged in court by “The Coalition for Responsible Regulation (CRR)”.
The previously unknown Coalition for Responsible Regulation Inc (CRR) is at the forefront of a strategy to strip the Obama administration of its powers to regulate greenhouse gas emissions should Congress fail to act on climate change.Let’s summarize what we’ve learned.
The group, which refuses to disclose its complete membership and which does not have a website, has joined more than a dozen states and a host of industry groups in 17 legal challenges to the authority of the Environmental Protection Agency.
Court documents filed in Texas identify Richard Hogan, chief executive of [chemical manufacturer] Solvay’s wholly owned US subsidiary, as one of three directors of the CRR, the lead petitioner on the legal challenge to the EPA’s authority to act on greenhouse gas emissions. The filings give Solvay’s Houston office as Hogan’s address. The coalition was apparently created to block Obama’s efforts to deal with climate change.
The filings with the Texas authorities reveal the coalition was founded on 10 November last year – a day after the EPA announced its scientists had determined that greenhouse gases were a public danger. The group filed its challenge to the EPA on 23 December.
Eric Groten, an attorney for the coalition, said it plans to file at least three more legal challenges against the EPA, which could tie up the agency in paperwork.
In June, 2009, the Supreme Court of the United States held that in certain circumstances, a judge’s prior relationship with a litigant could establish cause for recusal.
Less than six months later, an organization was created for the sole purpose of suing the EPA. They refused to disclose their sources of income or a full list of their members.
So here’s a question: Would the results have been different in Caperton if Don Blankenship had routed his money through a secretive shell organization? What if Blankenship had told then-candidate Benjamin of his efforts on the campaign’s behalf, but otherwise maintained the secret? Would Benjamin have any duty to disclose? He obviously didn’t think he had any duty to recuse, so why should anyone think he would have felt duty-bound to disclose?
These circumstances portend bad things for climate change and environmental regulations going forward. Big corporations and super-rich moguls like the Koch brothers have demonstrated every intention of pursuing their agenda using every available means. Their funding of the tea-party, right-wing institutes and election-influencing “independent expenditures” has been well-covered, and more is being discovered every day. But what is less well-known is the impact they are having on the American justice. Right-wing judges and judges with backgrounds as lawyers representing large corporations are seeded throughout the bench, at both the state and federal levels. Inevitably, many of these judges will preside over cases that involve the interests of people and companies that they have known for a long time. This type of identity-laundering by litigants may grow in prevalence.
It’s often stated that justice should be blind. But for most folks, even if we wanted to act in such a way (is it ethical?), obscuring our identity by creating a sham organization to litigate on our behalf isn’t something we could afford. Is that “equal justice under the law”? Or is this another example of money subverting democracy?