La. justices to U.S. SC: Don't believe everything you read

John O'Brien Feb. 18, 2009, 3:43pm

Louisiana's Supreme Court justices, from left: Justice Jeannette Theriot Knoll, Justice Jeffrey P. Victory, Justice Catherine D. "Kitty" Kimball, Chief Justice Pascal F. Calogero, Jr., Justice Bernette J. Johnson, Justice Chet D. Traylor, Justice John L. Weimer

WASHINGTON (Legal Newsline) - The Louisiana Supreme Court wants to make sure its name isn't dragged through the mud during a key judicial recusal case before the U.S. Supreme Court.

Louisiana's highest court has asked for leave to file an amicus brief in the Caperton case, which originated in West Virginia and will be heard next month, to defend itself against the usage of a 2008 Tulane Law Review article that linked judicial contributions to judicial voting on the Court.

An earlier brief cited the article, which has been refuted. The dean of Tulane Law School even issued an apology to the Louisiana Supreme Court and its justices after the article was published.

"The Tulane Law Review article painted a false picture of the Louisiana Supreme Court and its justices," says the Court's motion, submitted Feb. 9.

"The Louisiana Supreme Court, there, asks this Honorable Court to grant leave to file the Louisiana Supreme Court's amicus curiae brief out of time to bring to this Honorable Court's attention the errors of the cited Tulane Law Review article so this Honorable Court's decision in this case is not, even slightly, influenced by this discredited law review."

The article was titled, "The Louisiana Supreme Court in Question: An Empirical and Statistical Study of the Effects of Campaign Money on the Judicial Function" and was authored by Vernon Valentine Palmer and John Levendis.

An amicus brief submitted by the Brennan Center for Justice at NYU School of Law, the Campaign Legal Center and the Reform Institute cited the article in a footnote that argued West Virginia Supreme Court Chief Justice Brent Benjamin should have recused himself from the $50 million case of a campaign supporter.

"The authors of the study concluded that 'judicial voting favors plaintiffs' or defendants' positions not on the basis of judicial leaning or philosophical orientation but on the basis of the size and timing of a political donation,'" the brief says.

"The study further found that the 'higher the donation, the higher the odds that the contributor's position will prevail.'"

The brief also noted that the article was recently the subject of "significant methodological and empirical criticisms' but the Louisiana Supreme Court would like to expand on that.

The Louisiana justices say it has been discredited because of its methodology, error-laden data selection and faulty analysis. A pair of critiques of the article in the Louisiana Law Review back the justices up.

An earlier brief filed by the Conference of Chief Justices argued, "Some media attention about contributions to judicial campaigns unduly amplifies concerns about impropriety."

The New York Times reported on the Tulane Law Review article in Jan. 2008, but only on its online version in September did it report on the apology sent to the Louisiana justices, the brief says.

The case has drawn attention from all directions, including former Supreme Court justices, current state attorneys general, businesses and the American Bar Association.

Hoping to unseat then-Justice Warren McGraw in 2004, Massey Energy CEO Don Blankenship spent more than $3 million in support of Benjamin through an independent expenditure group called "And For the Sake of the Kids."

When a $50 million verdict against Massey came before the Court in 2007, Benjamin twice refused to step down.

A Boone County jury had awarded $50 million to Harman Mining and Caperton in his case against Massey, a dispute over a broken coal supply contract.

However, the state Supreme Court overturned the verdict in Nov. 2007 with a 3-2 vote, then again by the same vote in April after then-Chief Justice Spike Maynard recused himself.

Photographs had surfaced of Maynard and Blankenship on vacation in Monaco. The two, lifelong friends from Mingo County, said they were coincidentally vacationing at the same place at the same time, and Maynard provided documentation to show he paid his own way.

Caperton, throughout, complained that Benjamin should have taken himself off the case. Supreme Court Justice Larry Starcher agreed, recusing himself in the hopes Benjamin would do the same.

"The motion seeking disqualification comes over three years after the 2004 election and focuses entirely on that election," Benjamin wrote. "It contains nothing about this Justice's record on the Court.

"There are no allegations that this Justice has or has had any relationship with Mr. Blankenship or any party in this litigation, or that he ever represented Mr. Blankenship or any Massey company in his 22-plus years of private practice. Nor is this Justice aware of any basis by which this Justice should disqualify himself."

A recent Charleston Gazette article reported that Blankenship had dinner with Benjamin, Maynard and Chris Hamilton, the vice president of the West Virginia Coal Association, in 2006 in Charleston.

A brief filed by Massey said that "there is no indication that Blankenship and Justice Benjamin even knew one another, before or after the election."

In the report, Massey attorney Andrew Frey is quoted as saying, "I understood that they had not met. I could be wrong. We didn't put it in believing it to be false.

"I think the point is that they are not friends. They do not have any kind of close relationship. I think that is accurate. If what we said is not precisely the case, we will check that."

While the Republican Benjamin is viewed as a pro-business influence on the Court, he voted against hearing Massey's appeal of a $220 million Brooke County verdict against it.

He has also recused himself from a high-profile case involving a $381 million verdict against industrial giant DuPont because his former law firm is involved.

From Legal Newsline: Reach John O'Brien by e-mail at

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