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

I probably don't want to get into an exchange of run-on sentences or
tangent-chasing with Professor Sample any more than I want to challenge
Tiger Woods to a game of golf, but I'll just note that Rick Esenberg's point
that the independent expenditures being aired in the Wisconsin Supreme Court
race raise interesting questions under Caperton still stands.

Oh, and the case is indeed over, at least the one filed in West Virginia.
The New York Times article makes that clear, so I'm not sure just what
widely-reported-but-ignored-by-my-likes facts the good professor is
referring to. I really don't have any opinion as to whether Caperton's basic
complaint had merit - for all I know, he deserves to be awarded $50 million
or more by the Virginia court system. But the question of whether Caperton
should have filed in West Virginia or Virginia, is over.

Sean Parnell
President
Center for Competitive Politics
http://www.campaignfreedom.org
http://www.twitter.com/seanparnellccp
124 S. West Street, #201
Alexandria, VA  22310
(703) 894-6800 phone
(703) 894-6813 direct
(703) 894-6811 fax

-----Original Message-----
From: election-law-bounces@mailman.lls.edu
[mailto:election-law-bounces@mailman.lls.edu] On Behalf Of James J. Sample
Sent: Thursday, March 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