Third party won't argue before U.S. SC in Caperton case

John O'Brien Feb. 20, 2009, 4:45pm


WASHINGTON (Legal Newsline) - The State of Alabama may not participate in the oral arguments of a key judicial recusal case scheduled to be heard in March by the U.S. Supreme Court.

The Court rejected Alabama's request Friday while granting the Louisiana Supreme Court time to file an amicus brief. Alabama Attorney General Troy King had authored an amicus brief of his own in support of West Virginia Chief Justice Brent Benjamin's decision not to recuse himself in the case of a campaign supporter.

King was opposed to a federal ruling affecting the way states govern recusal issues.

"From amici's perspective, therefore, the question is not whether, in some abstract sense, Justice Benjamin 'should' have disqualified himself," King wrote.

"The question, rather, is whether the Court should fashion an entirely new body of federal constitutional law to govern day-to-day recusal practice in state courts - and, in the process, birth an entirely new species of litigation pleading, the Caperton motion.

"The answer on both counts is no."

Attorneys general joining King in his brief were Colorado's John Suthers, Lousiana's Buddy Caldwell, Michigan's Mike Cox, Florida's Bill McCollum and Utah's Mark Shurtleff. Delaware Chief Deputy Attorney General Richard Gebelein added his state while Attorney General Beau Biden is serving a one-year tour of duty with the military.

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.

By granting the Louisiana Supreme Court time to file an amicus brief, the U.S. Supreme Court allowed the Louisiana justices to describe how a Tulane Law Review cited in an earlier brief was discredited.

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

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