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