What Happened in West Virginia?
I spoke with former West Virginia Supreme Court Justice Warren McGraw this morning. West Virginia, like Arkansas, is one of 39 states that elect judges. I told him what was happening in our state. He’s all too familiar with stealth “independent spending” campaigns designed to buy a certain judicial perspective. I asked him if he could tell me a little bit about what happened in his judicial race.
“Well, if you really want to know, there are two books written about it that you should read. There’s a nonfiction book called, ‘The Price of Justice.’ And some guy out of Mississippi wrote a fictionalized account of it. I can’t remember his name, but he made me a woman in the book. I’ve never read it.”
“It wasn’t John Grisham by any chance?”
“Yeah, that’s his name. Is he from Mississippi or Arkansas?”
“Well, he’s a native son of Arkansas, but he doesn’t live here anymore. See, we’ve got this same sort of thing happening in Arkansas right now. I’m about to go to a rally at the capitol and I think we are going to come up with a plan to stop it.”
“Oh. I don’t think you’ll be able to do anything about it, but the world needs optimistic people like you. Good luck.”
Glen Hooks of the Sierra Club is holding up a lump of coal on the steps of the Arkansas capital. He calls the coal “dirty,” but I can’t help thinking that it looks really pretty, sparkling under the noon sun. The lump, he says, stays on his desk to remind him of what happened in West Virginia. A coal man, Don Blankenship, through the LEAA, bought the judiciary in order to give his company, Massey Energy, the leverage it needed in order to completely dominate the market. It worked, but in 2010 a Massey Energy mine exploded, killing 29 people.
The coal stops sparkling. Now it looks as dark as the money funneling into Arkansas.
This is the second time today I’ve heard about West Virginia and I’ve got the feeling that if I want to know what’s happening here, I need to look at what happened there.
It’s 1998 and Don Blankenship, CEO of Massey Energy, the biggest coal producer in Appalachia, drives Hugh Caperton’s small coal mine, the Slab Fork mine, into bankruptcy. Caperton and his company fight back and win a $50 million judgment against Massey, but Blankenship fights back. He fights it all the way to the United Supreme Court and back.
Blankenship was known in West Virginia for breaking up one of the strongest unions in America. He strongly believed in wielding his political advantage to end social welfare programs out of West Virginia, despite the fact that it was the second-poorest state in the country. His company was also known for its outrageous disregard for safety.
Caperton’s lawyer believed Massey had been responsible for the deaths of “scores of miners.” Worse, the man had vendettas against anyone who tried to take on Massey Energy.
Blankenship appeals Caperton’s verdict to the Supreme Court of Appeals of West Virginia. Three of the five appellate judges were hardcore progressives and Blankenship knew he wasn’t likely to win his appeal. So before Massey’s Capterton appeal was heard, Blankenship poured $3 million into defeating a liberal Democratic West Virginia supreme court justice named Warren McGraw.
McGraw was a lifelong politician. In thirty-four years he had been in the House of Delegates, the state senate, the state senate president, on the county school board, and chief justice of the state supreme court. He, like the majority of West Virginians, was liberal and believed government should provide the crucial safety netting beneath people’s lives, but was conservative on topics like abortion and gay rights.
On July 21, 2003, Forbes published an article titled “Buying Justice,” which featured a picture of a judge with a target on his back. Forbes predicted Warren McGraw was one of the judges targeted by a strategy organized by big business:
West Virginia Supreme Court Justice Warren McGraw will be among the targets.
McGraw had drawn the ire of big business when he ruled that employees could sue even before they were injured if their employees put them at unreasonable risk of harm. Massey was one of those employers who faced dozens of suits.
The article traces “the war on judges”:
The war on the judges began in 2000, when Donohue, who had run the American Truckers Association and took over the chamber in 1997, visited Bernard Marcus, the firebrand founder of Home Depot, at the company’s base in Atlanta. The now-retired Marcus stunned Donohue with his outrage, complaining of getting hit with a new lawsuit every day. “Every time I sit down with a CEO I’m told their major economic problem is the trial lawyers,”Marcus told Donohue, adding, “I have never seen such fear and intimidation in my life.”
Marcus helped him raise $8 million to target judges in the 2000 elections; that expanded to $20 million in 2001 and to $40 million in 2002. Much of the money went to the Institute for Legal Reform, a tax-exempt chamber unit that runs this anti-judge “voter education” effort. Thus, 60% of the money is tax-deductible for the companies that gave it.
The article doesn’t say that money was also dumped into LEAA as a shield, but LEAA also became active in targeting candidates in 2000.
McGraw was defeated by Brent D. Benjamin. Despite the massive aid to his campaign from Blankenship, Benjamin refused to recuse when the case made it to the supreme court. Benjamin joined the 3-2 majority overturning the lower court on a narrow technicality.
It’s 2009 and Theodore Olson, a Republican lawyer highly experienced at arguing before the US Supreme Court, takes on Caperton’s case before the highest court in the land. Caperton v. Massey Coal Company had spent the previous eleven years meandering through two states and three courtrooms. It had nearly ruined Caperton; but, Blankenship was bolder than ever.
The question before the court was whether a citizen’s right to due process and a fair trial was violated when one side made large contributions to a judge considering the case.
Olson’s friends were confused about why he was suddenly taking on a large corporation, but he truly believed that disproportionate special-interest campaign spending challenged the very notion of American justice.
Olson’s opening argument begins,
A fair trial in a fair tribunal is a fundamental constitutional right. That means not only the absence of actual bias, but a guarantee against even the probability of an unfair tribunal.
The United States Supreme Court heard oral arguments in March 2009. In June 2009, the Court found for Caperton and Harman Mining, remanding the case back to the West Virginia Supreme Court.
Writing for the majority, Justice Kennedy called the appearance of a conflict of interest so “extreme” that Benjamin’s failure to recuse himself constituted a violation of the plaintiff’s Constitutional right to due process under the Fourteenth Amendment. Justice Kennedy noted that not every campaign contribution by a litigant creates a probability of bias that requires a judge’s recusal. Justice Kennedy wrote, “We conclude that there is a serious risk of actual bias — based on objective and reasonable perceptions — when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”
What Does Law Enforcement Have to Do With Coal Mining?
The answer is nothing, except the fact that the Chamber of Commerce and the NRA are both using LEAA as a shield for their shady meddling into elections.
I have no doubt that LEAA was funded by the NRA in 1991. From 1991 until 1999, LEAA’s activities were strictly reserved for advocating gun rights (by pretending to be a law enforcement alliance).
But in 2000, when the Chamber of Commerce began pumping millions of dollars into state elections, a large majority through independent “awareness groups” LEAA’s mission took a new avenue.
This is James Fotis. He’s the Executive Director of LEAA. He’s a former police officer. This is from his LinkedIn page:
Police and crime victims advocacy, corporate crisis in certain industries
Corporate crises in certain industries?! How far from crime victim advocacy can you get?
LinkedIn also lists someone named “Robert A.” who is a “Field Representative for LEAA.” (I don’t have the full version of LinkedIn because I’m cheap). Robert A works for Watson Pharmaceuticals. If you know anything about the pharmaceutical industry, you know it’s been beset by major lawsuits (disclaimer: some brought by my firm) in recent years for conspiracy to fix prices.
IS THERE A LINK WITH FORMER GEORGIA REPRESENTATIVE BOB BARR(R)?
In 1999, the LEAA went to Washington and met Republican Representative Bob Barr (who later left the Republican party and became a libertarian). Bob Barr was one of the most outspoken Republicans about tort reform. In the linked article, LEAA brags about taking down President Bill Clinton’s attempts at gun regulation. Bob Barr is famous for being one of the managers of Clinton’s impeachment.
In 2000, the LEAA began infiltrating itself into political activities and designed expensive strategies to get rid of candidates it viewed as unfavorable to big business.
In 2001, Bob Barr began his tenure on the Board of Directors of the NRA. The same organization that started LEAA and continues to partially fund it.
What Brought LEAA’s Eye to Arkansas?
Tort Reform has obviously been a huge topic in Arkansas in recent years. But what brought the LEAA’s gaze to Arkansas is still unknown. Do we have a Don Blankenship of Massey Coal waiting in the wings, stacking the deck for a future case?
Finally: If you support tort reform, that’s fine.
I represent insurance companies.
Why would a liberal democrat represent insurance companies? For the same reason Thomas Olson represented Caperton. I believe everyone deserves a fair shot at justice, no matter what side they are on.
But how can we have a fair judicial process if we can’t even see who is funding judicial elections?