Re: [EL] Caperton rearing it's head in Wisconsin?

Brad,

This exchange started with Sean's typically naked speculation that Justice Kennedy "is going to regret" his vote in Caperton.  This was based on Rick E's assertions regarding Wisconsin events, many of which actually preceded Caperton.  Mr. Klein then engaged in a bizarre post hoc assertion that the claims of sinister scenarios were "a tad bit overblown." Whether, after enduring a ruling first reheard only after pictures of Blankenship vacationing in the Riviera with West Virginia's then-Chief Justice, then another rehearing with Benjamin, then the national, less-than-flattering attention paid to the West Virginia Supreme Court suffering a first-of-its-kind reversal, Mr. Caperton could ever get a fair hearing in WV is a difficult question on which reasonable people have different views.

The point is that even if West Virginia AND Virginia ultimately rule against Mr. Caperton, it doesn't mitigate the clear ethical concerns, and ultimately close constitutional concerns with respect to Benjamin's (much less Maynard's participation) in the case.

Still, since the CCP world view seems to be winning almost every jurisprudential day when it comes to legislative and executive campaigns (up to and including Monday) perhaps it's understandable that, having only judicial campaigns left to conquer, they feel the need to choose their frames selectively in characterizing the endangered species that Caperton is--- a loss for the CCP world view.

CCP's vision of equality under law is one in which every citizen has an equal right to spend $3 million on a judicial campaign and then appear before their beneficiary.  It's a unique view.  It's just not mine.  It's not the Supreme Court's.  And polls show overwhelmingly that it's not the American people's.

________________________________________
From: Smith, Brad [BSmith@law.capital.edu]
Sent: Thursday, March 31, 2011 4:16 PM
To: James J. Sample; Steve Klein
Cc: election-law@mailman.lls.edu
Subject: RE: [EL] Caperton rearing it's head in Wisconsin?

I am puzzled by two elements of James' post.

First, I don't see it as particularly relevant to the legal issue in Caperton v. Massey Coal whether or not Massey was a bunch of really bad guys doing stuff that merited a big settlement. Massey successfully appealed the verdict on the basis of a forum selection clause. The success of this appeal, it has been suggested, was in part because Justice Brent Benjamin ruled for dismissal, and when Justice Benjamin had run for the West Virginia Supreme Court, Massey CEO Blankenship had spent a great deal of money in independent expenditures trying to help elect Benjamin. Thus, it was suggested, both Benjamin's impartiality and therefore the decision of the West Virginia Supreme Court were suspect. But if the Court sans Benjamin still ruled the same way, it suggests that Caperton may have been, in fact, much ado about nothing. James seems to want to argue that Massey was really bad and deserved the jury verdict against it - all of which may be true, but are not things that Justice Benjamin ever ruled on, and have nothing really to do with the issue decided by the Supreme Court.  Meanwhile, as James notes, Caperton will now get another chance in the proper forum.

That leads to the second element that puzzles me.  I do not quite grasp what James thinks is significant about the fact that Caperton has finally re-filed in Virginia, per the forum selection clause.  Leaving aside that Steve Klein makes no "factual error" that I can see (he doesn't say in the post below that all litigation is at an end), for the West Virginia courts, the case is over.  Caperton lost three times at the West Virginia Supreme Court on the forum selection clause.  Twice Benjamin was sitting, and each time Caperton lost 3-2.  The final time, after the Supreme Court decision, Benjamin was recused and Caperton lost 4-1.  Given the split bench in each case, this appears to have been a tough legal issue. Given that all three panels came down in favor of Massey on the forum selection issue, it is certainly possible that the West Virginia Court just got this one right. James seems visibly upset at the injustice that he believes (perhaps quite correctly) has happened to Hugh Caperton, and at a minimum Caperton has certainly faced the misfortunes of a modern day Job. But I'm not aware that we are yet in the business of ignoring process issues, such as forum selection clauses, any time we think doing good will result. Those process issues are part of our system of justice, too.

Finally, I don't know that what I said in Milwaukee was that the case was at an end - I think I said merely the factually correct statement that on the question at issue in Caperton, Caperton had again lost after the decision in Caperton. lIt is certainly possible, though, that I said something like, "how did the case end? The West Virginia Court reheard the case without Benjamin, and ruled 4-1 against Caperton." That would still strike me as correct - the saga that got to the Supreme Court would be over.  Sometimes people just lose, and sometimes they lose on technical grounds (sometimes they win on technical grounds too, as when criminally accused are properly released for not having been read their Miranda rights, or improperly obtained evidence is excluded). In the 20/20 vision of hindsight, perhaps Mr. Caperton should have simply refiled in Virginia in 2007.

Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
(614) 236-6317
http://www.law.capital.edu/Faculty/Bios/bsmith.asp

________________________________
From: election-law-bounces@mailman.lls.edu on behalf of James J. Sample
Sent: Thu 3/31/2011 3:10 PM
To: Steve Klein; Frank Askin
Cc: election-law@mailman.lls.edu
Subject: Re: [EL] Caperton rearing it's head in Wisconsin?

Time is short so, without going further, I'll merely caution the list that:

(1) Rick Esenberg's effort to blame Caperton for some very real problems with respect to Wisconsin judicial campaigns, including campaign tactics so egregious that a few years ago former Justice Louis Butler referred to Grisham's novel by saying "welcome to my world," and to recent Wisconsin impartiality problems so pervasive that a current justice on the court became the first sitting justice in the court's history to be disciplined by her own court --- after it came to light that, among other things, she'd ruled on at least eleven cases involving a bank for which her husband served as a director, and yes, for the lack of transparency of multiple Wisconsin massive independent expenditure campaigns in recent court campaigns which, have never focused on the spenders' actual and substantial interests before the courts, but rather, invariably focus on misleading attacks on individual justices for individual rulings in criminal cases, is transparently an effort at misdirection.  Rick E. is a good guy, but neither chronology nor logic, nor even his best Oliver Stone impersonation makes his argument here remotely credible.

(2) Sean's typically conclusory posts speak for themselves.  If you always agree with Sean's world view, you like them.  If you don't always agree with Sean's world view, they add nothing of substance.

and

(3) Mr. Klein's tart comment, reflects---indisputably---a factual misunderstanding, and---in my opinion---an incorrect conclusion.

As to Mr. Klein's factual error, the case is far from being at an end. And the "reasons stated in the body of the opinion" were entirely based on the rarity of an appellate reversal only because of a novel and strained reversal of the trial court's decision on a forum selection clause.  Indeed, even the "non-Benjamin" majority that ruled against Caperton on the rehearing that Mr. Klein cursorily notes, acknowledges that on the substance Mr. Caperton's claims were meritorious and that everything the trial court found illegal in Massey Energy's conduct, had indeed occurred.  This is not even remotely an overstatement.  Writing for the non-Benjamin majority that ruled *against* Caperton only on the forum selection clause --- itself an argument so strained that it was dismissed in a grand total of one sentence of treatment in the trial court --- Chief Justice Robin Davis wrote:  "We wish to make it perfectly clear that the facts of this case demonstrate that Massey’s conduct warranted the type of judgment rendered in this case."  Being in the actual full opinion, I'm guessing Mr. Klein hadn't read that sentence, but whether he had or not, it's hardly accidental that he didn't mention it.  Overblown?

As has been widely reported, but widely ignored by the likes of Sean--- and Brad Smith and Rick Esenberg with whom I debated these issues in Milwaukee a few months ago---and who made these same claims, replete with the same fundamentally flawed factual error, the case is not at its "end." One of a zillion stories on that is at http://www.nytimes.com/2010/11/10/business/energy-environment/10coal.html?_r=2&partner=rss&emc=rss.

As for the "sinister" claims in the case being "a tad bit overblown," no matter what ultimately happens in Virginia (as opposed to West Virginia), nothing will change the non-overblown reality that one sole individual, Don Blankenship, spent $3 million---a sum that was more than ALL of the other support for Brent Benjamin *combined* while his company----a repeat player in the West Virginia courts about whom we've tragically since learned a lot more---was preparing the appeal in Caperton's case.

If concern over that reality strikes one as "overblown," then we simply have a different view of what it means to be a country envied around the world for the rule of law.   If you are interested in more of the lesser-known aspects of the back-story from Mr. Caperton's perspective, I recommend his recent speech to Justice at Stake, in his own words, linked at: http://www.gavelgrab.org/?p=17670

Finally, as I, Rick Hasen, and many others, noted in the immediate aftermath of the Supreme Court's decision Caperton, its most lasting national impact will likely be not as dispositive precedent in itself, but in spurring states to rigorously confront the concern of massive spending campaigns---including via independent expenditures---by stakeholders before the courts.  While the pace of progress on that score can be glacial, it is indeed occurring in states around the country.  Many of those developments are chronicled in a report authored by Adam Skaggs and Andrew Silver of the Brennan Center last month (http://www.brennancenter.org/content/resource/promoting_fair_courts_through_recusal/)

James

James Sample  l  Associate Professor  l  Hofstra Law School
121 Hofstra University, Suite 29J l  516-463-7236  l  james.sample@hofstra.edu

________________________________________
From: election-law-bounces@mailman.lls.edu [election-law-bounces@mailman.lls.edu] On Behalf Of Steve Klein [stephen.klein.esq@gmail.com]
Sent: Thursday, March 31, 2011 1:31 PM
To: Frank Askin
Cc: election-law@mailman.lls.edu
Subject: Re: [EL] Caperton rearing it's head in Wisconsin?

I realize there's a certain sinisterness to Caperton that can make for compelling drama, but I still think the end of the case indicates the claims were a tad bit overblown:

W. Va. Supreme Court of Appeals Majority with Justice Benjamin, April 3, 2008:
"For the reasons stated in the body of this opinion, we reverse the judgment in this case and remand for the circuit court to enter an order dismissing this case against A.T. Massey Coal Company and its subsidiaries with prejudice."
679 S.E.2d 223, 264.
------------

(Supreme Court expands 14th Amendment due process to unknown lengths, because "On these extreme facts the probability of actual bias rises to an unconstitutional level.")

------------
W. Va. Supreme Court of Appeals Majority without Justice Benjamin, November 12, 2009:
"For the reasons stated in the body of this opinion, we reverse the judgment in this case and remand for the circuit court to enter an order dismissing this case against A.T. Massey Coal Company and its subsidiaries with prejudice."
690 S.E.2d 322, 357.
Crickets?
On Thu, Mar 31, 2011 at 11:15 AM, Frank Askin <faskin@kinoy.rutgers.edu<mailto:faskin@kinoy.rutgers.edu>> wrote:
For a marvelous portrayal of the potential evils of judicial elections,
I heartily recommend John Grisham's novel, "The Appeal." I do not know
if the novel was inspired by Caperton, or preceded it. FRANK

Prof. Frank Askin
Distinguished Professor of Law       and Director
Constitutional Litigation Clinic
Rutgers Law School/Newark
(973) 353-5687<tel:%28973%29%20353-5687>>>> Paul Lehto <lehto.paul@gmail.com<mailto:lehto.paul@gmail.com>> 3/31/2011 12:37 PM