- The Washington Times - Tuesday, June 9, 2009

The Supreme Court ruled Monday that elected judges must step aside from cases when large campaign contributions from interested parties create the appearance of bias.

By a 5-4 vote in a case from West Virginia, the court said that a judge who remained involved in a lawsuit filed against the company of the most generous supporter of his election deprived the other side of the constitutional right to a fair hearing.

“Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when - without the consent of the other parties - a man chooses the judge in his own cause,” Justice Anthony M. Kennedy said for the court.

With multimillion-dollar judicial election campaigns on the rise, the court’s decision Monday could have widespread significance. Justice at Stake, which tracks campaign spending in judicial elections, says judges are elected in 39 states and that candidates for the highest state courts have raised more than $168 million since 2000.

“Judicial elections have become more expensive, more negative and more subject to influence by special-interest groups,” said Chief Justice Margaret Marshall of Massachusetts, president of the Conference of Chief Justices.

The West Virginia case involved more than $3 million spent by the chief executive of Massey Energy Co. to help elect state Supreme Court Justice Brent Benjamin. At the same time, Massey was appealing a verdict, which now totals $82.7 million with interest, in a dispute with a local coal company. Justice Benjamin refused to step aside from the case, despite repeated requests, and was part of a 3-2 decision to overturn the verdict.

The coal company, Harman Mining Co., and its president, Hugh Caperton, took the case to the high court.

“Not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge’s recusal, but this is an exceptional case,” Justice Kennedy said.

Justices Stephen G. Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens joined Justice Kennedy’s opinion.

Chief Justice John G. Roberts Jr. wrote in dissent that he shares concerns about maintaining an impartial judiciary. “But I fear that the court’s decision will undermine rather than promote these values,” he said.

Justices Samuel A. Alito Jr., Antonin Scalia and Clarence Thomas also dissented.

In other action on Monday, the court:

• Ruled that the current government in Iraq cannot be held responsible for the actions of Saddam Hussein’s regime. The high court unanimously turned away lawsuits from Americans who were held in Iraq during the Gulf War. The court said a federal law enacted in 2003 gave Iraq back the immunity that was stripped because of Saddam’s government’s designation as a sponsor of terrorism.

• Turned down an appeal from Indian tribes who wanted to block expansion of a ski resort on a mountain they consider sacred. A half-dozen Western tribes wanted to block the expansion of the Arizona Snowbowl ski area north of Flagstaff because the resort plans to use treated wastewater to make artificial snow on the mountain.

• Refused to hear an appeal from two former top executives of Tyco International that challenges their convictions for fraud and larceny involving more than $100 million in bonuses.

• Will not consider making changes to the sentence of a radical environmentalist linked to multiple arsons across the West. Kendall Tankersley was sentenced to 41 months in federal prison, after pleading guilty to arson and attempted arson at U.S. Forest Industries in Medford, Ore., in December 1998.

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