Ala. AG King defends stance in W.Va. recusal controversy

John O'Brien Jan. 29, 2009, 11:54am


MONTGOMERY, Ala. (Legal Newsline) - Alabama Attorney General Troy King would prefer it if those criticizing his brief in support of West Virginia Chief Justice Brent Benjamin would hold off until they read it.

King is trying to round up support for Benjamin, in the middle of a recusal controversy that will be heard in March by the U.S. Supreme Court. Benjamin refused to step down from the $50 million case of a heavy campaign supporter last year.

Hugh Caperton's Harman Mining had won a $50 million verdict against Massey Energy before it was overturned by the state Supreme Court. Massey CEO Don Blankenship spent more than million in 2004 to help Benjamin, who twice voted in the 3-2 majority.

"I did not write my brief to defend Justice Benjamin or those who contributed to him," King wrote in an op-ed he released Thursday. " I did not even write to defend West Virginia's system of regulating recusals of judges or its lack of one.

"Instead, I wrote to ensure that the regulation of state judicial practice - something that has long been the responsibility of the States - is not unduly 'federalized' via a problematic one-size-fits-all approach that ignores differences between the States, hinders the states' aggressive and innovative efforts to ensure fairness, and launches an entirely new body of federal constitutional law and an entirely new layer of expensive and expansive litigation."

King, a Republican, has served as Alabama's attorney general since 2004. His dedication to states' rights is also evident in a case he recently filed against the federal Centers for Medicare and Medicaid Services that alleges the CMS is unfairly trying to take portions of settlements between states and pharmaceutical companies.

He notes that under Alabama state law, Benjamin would have had to disqualify himself from the Caperton case.

"The U.S. Constitution was established on the principle of federalism - that the federal government is a limited government of specifically enumerated powers given to it by the States," he wrote.

"Consistent with this principle, certain matters have traditionally been within the province of the states to regulate; one such matter has been the supervision of state court judges to ensure impartiality and fairness. And states have done so aggressively and creatively, because they are best able to determine when a particular State practice might raise an 'appearance of bias.'

"The question whether support of a judicial candidate or appointee creates such an 'appearance' is an inherently state-specific question requiring detailed knowledge of that state's particular judicial selection process, that state's historical experience with that process, and what a 'reasonable citizen' of that state would have come to know and expect under that system."

King said his goal is to ensure that states are not saddled with a national rule, not to take sides with Caperton or Massey.

"Even West Virginia has revisited its rules and amended them to address this situation," King wrote.

"But if the Supreme Court takes options off the table by declaring a one-size-fits-all judicial recusal policy based simply on one unique case from one state, then the states - all of them - will lose the autonomy to make important decisions for themselves about how to ensure impartiality in their own courts.

"That, in my opinion, would be a bad thing. And that - nothing else - is what I intend to tell the Supreme Court."

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