Sustained Outrage

Citizens United ruling issued by Supreme Court

39197024.jpgThe U.S. Supreme Court rolled back limits on campaign spending by corporations and unions in its 5-4 decision in Citizens United vs. Federal Elections Commission, published today.

SCOTUSblog has posted a helpful summary of coverage and reactions here.

As I’ve noted before, West Virginia has been trying to align its electioneering laws with the latest Supreme Court rulings. The last round of changes implemented by the Legislature resulted in successful challenges in federal court in 2008 from West Virginians for Life and the Center for Individual Freedom.

Third-party campaign spending in West Virginia has attracted national attention and resulted in a previous opinion by the Supreme Court. Stay tuned to see the impact of today’s game-changing ruling. As Monty Burns, “The Simpsons” resident corporate magnate, might say, Release the hounds!

Albert Diaz and James A. Wynn Jr., the two North Carolina judges nominated to the U.S. Court of Appeals for the 4th Circuit, have been held over by the Senate Judiciary Committee during today’s business meeting.

Both judges appeared before the committee on Dec. 16, when their home-state senators, Democrat Kay Hagan and Republican Richard Burr, both urged the committee to act quickly to confirm Wynn and Diaz and fill two of the four openings on the 15-seat 4th Circuit.

Burr and Hagan’s entreaties notwithstanding, holding over nominations for at least a week has become standard operating procedure for the judiciary committee, even for candidates with bipartisan support. So during today’s meeting, O. Rogeriee Thompson, a federal judge from Rhode Island who’s been nominated for the 1st Circuit, passed out of committee on a voice vote. Naturally, Thompson was held over at the previous business meeting on Dec. 17.

albertdiaz.jpgjameswynn.jpgTwo North Carolina judges who have been nominated for the U.S. Court of Appeals for the 4th Circuit are on the agenda for Thursday’s business meeting of the Senate Judiciary Committee. Albert Diaz (left) and James A. Wynn Jr. (right) fielded questions from committee members on Dec. 16, but the committee didn’t take up their nominations before the holiday recess. Now that Congress is back in session, Thursday marks the first opportunity for the committee to endorse Winn and Diaz to the full senate.

When they introduced Diaz and Wynn, both North Carolina senators, Republican Richard Burr and Democrat Kay Hagan, urged the committee to move quickly to fill the four vacancies on the 4th Circuit’s 15-seat panel. Given this bipartisan support (and that both judges received “unanimously well qualified” ratings from the American Bar Association), it will be interesting to see if the committee approves their nominations right away, or if they are held over for a week, which has been standard procedure for the judiciary committee.

Meanwhile, another nominee to the 4th Circuit, Virginia Supreme Court Justice Barbara Milano Keenan, passed out of committee on Oct. 29. While the latest edition of the senate’s executive calendar indicates that the full senate will vote Wednesday on Barbara Baldwin Martin, a U.S. District Judge from Atlanta nominated for the 11th Circuit Court of Appeals, there is no indication that Keenan’s nomination will get a vote anytime soon.

Caperton, recusal and judicial elections

benjaminap.jpgInteresting column by Adam Liptak in today’s New York Times, in which he observes that the justices of the U.S. Supreme Court may be a little bit better at interpreting precedent than predicting what impact their rulings may have in the future.

Liptak mentioned in passing the Caperton case, in which a 5-4 majority ruled in June that West Virginia Supreme Court Justice Brent Benjamin (pictured) should have stepped down from a case involving the company of major campaign donor Don Blankenship. (See previous coverage here, here and here.) Liptak wrote:

[D]ire prediction sometimes seems the court’s default rhetorical mode.

Chief Justice John G. Roberts Jr., dissenting from a decision about judicial disqualification in June, said the majority opinion would “inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be.”

That overstated the decision’s likely effect, Penny J. White, a former judge who is now a law professor at the University of Tennessee wrote in The Harvard Law Review in November. She said there would be no “onslaught of judicial recusal motions,” basing her view “on my experience as a state trial and appellate judge and my interaction as a judicial educator with judges from all 50 states.”

I haven’t seen any academic studies on recusal in the wake of the court’s ruling. Anecdotally, it doesn’t appear that there has been a deluge of “Caperton motions” in the courts that I cover. I did take note when Kanawha Circuit Judge Jennifer Bailey voluntarily stepped aside from the criminal case against Natasha Light, the passenger in the truck involved in a high-speed chase the night Charleston Police officer Jerry Jones was killed. Bailey’s clerk, Lori Teel, is Jones’ sister.

(Readers, feel free to bring any cases to my attention if I’ve missed the boat on recusal motions.)

I’m also curious to see if groups with defined agendas have been busy donating money to justices and judges they would want off of their cases, but inexplicably, the Campaign Finance Center section of the Secretary of State’s Web site doesn’t currently allow the public to review campaign finance reports online.

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After inserting himself into DuPont Co.’s appeal of the $400 million verdict in the Spelter Smelter case,  Gov. Joe Manchin announced tonight that the state Supreme Court is moving to address the issue of whether every ruling by a circuit court gets a full examination by the justices.

In his State of the State address, Manchin put it this way:

The Supreme Court has been studying this issue for the past several months, and I’m pleased to report that they have shared with me a proposal for major reform of the state’s appellate process.

Through their  constitutional rule-making authority, the Supreme Court of Appeals will soon issue rules for public comment that are intended to ensure there will be full appellate review by the Court of all final decisions on the merits issued by the circuit courts in West Virginia.

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Tort trials decreasing, DOJ study finds

The Bureau of Justice Statistics, which is part of the U.S. Department of Justice, released a new report this week on the number of tort cases that went to trial in state courts 2005. Torts, as the report reminds us, are cases with “one party alleging injury, damage, or loss stemming from the negligent or intentional acts of another party.”

Here are some highlights:

— Almost 60 percent of tort cases that went to trial were car accident cases. The next highest category, at 15 percent, was medical malpractice.

— Plaintiffs won about half (51.6 percent) of the time. This was true for jury trials (51.3 percent) and bench trials (56.2 percent). Nine out of ten trials were decided by juries.

–The median final award amount for plaintiffs who won was $24,000. The median for awards by juries ($24,000) was pretty similar to the median for awards by judges ($21,000).

(A quick reminder: the median is not the same as the average; the median is the number where half of the sample is higher, and half is lower.)

–Winning plaintiffs sought punitive damages less than 10 percent of the time. Punitive damages were awarded to less than three percent of plaintiffs who won. Judges ($54,000 median) tended to award smaller punitive damages than juries ($100,000 median), although the study said those numbers are “not statistically different.”

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As I reported in today’s Gazette, the West Virginia Supreme Court established new precedents in an opinion published Monday. The heart of the decision is this: Actual violence is not a prerequisite for getting a domestic violence protective order, or for violating West Virginia’s domestic violence laws.

Here are the two new syllabus points (numbers 5 and 6 of the opinion):

 5. The act of domestic violence defined in West Virginia Code 48-27-202 (5) (2001) as “[h]olding, confining, detaining or abducting another person against that person’s will” does not require proof of some overt physical exertion on the part of the alleged offender in order to justify issuance of a protective order.

6. The act of domestic violence defined in West Virginia Code 48-27-202 (3) (2001) as “[c]reating fear of physical harm by harassment, psychological abuse or threatening acts” provides that fear of physical harm may be established with (1) proof of harassment, (2) proof of psychological abuse, or (3) proof of overt or covert threatening acts.

As I’ve written before, it’s pretty noteworthy when new precedents are set. Here’s hoping that judges, magistrates and law enforcement (and particularly potential violators) all around the state got the Supreme Court’s message.

Judicial nominations: “Partisan political warfare”?

That’s how Sen. Arlen Specter (D-Pa.) sees it. Speaking Tuesday in support of Indiana U.S. District Judge David F. Hamilton‘s nomination to the U.S. Court of Appeals for the Seventh Circuit, Specter said:

arlenspecter.jpgSpeaking candidly, perhaps bluntly, Judge Hamilton is a pawn in partisan political warfare. That is the long and short of it. This is the 90th filibuster in the past several months. This follows a pattern, regrettably, that goes back almost two decades, when both sides, Democrats and Republicans at various times, have engaged in filibusters against judicial nominees where there was no justification to do so. It occurred extensively during the Clinton administration. At that time, on the other side of the aisle, I supported many of President Clinton’s nominees. It occurred during the Bush administration, when I chaired the Judiciary Committee, and there were repeated filibusters by Democrats against President Bush’s nominees.

At that time, this Chamber was almost torn apart with the ferocity and intensity of the partisanship, with serious consideration being given to what was called the nuclear or constitutional option, when there was serious consideration given to altering the traditional requirement of 60 votes to end a filibuster. There was a tactic devised to challenge the ruling of the Chair, which could be overruled by or upheld by only 51 votes, and thereby move the judicial nominees without the traditional 60 votes. Fortunately, sanity and tradition prevailed and we worked out a compromise with the so-called Gang of 14 to confirm some and to reject others. Now we find the pattern continues.

It is my hope that at some point we can declare a truce, an armistice, and stop the partisan political warfare. The nomination of Judge Hamilton would be a good occasion to do that. 

Well, there was no truce.

On Tuesday, Republicans tried unsuccessfully to filibuster Hamilton’s nomination, which prompted the Washington Post‘s Dana Milbank to observe: “When you’re in politics, a certain amount of hypocrisy comes with the job. Still, what happened on the Senate floor Tuesday stretched even the senatorial capacity to suspend shame to new levels of elasticity.”

And on Thursday, in a highly partisan vote, the Senate confirmed Hamilton by a 59-39 margin. The only Republican to vote for Hamilton was Sen. Richard Luger of Indiana, who, along with his Democratic colleague Evan Bayh, recommended Hamilton in the first place.

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Workman issues dissent in Maynard-Blankenship case

workman09_sm.jpgSupreme Court Justice Margaret Workman today issued her dissent to the court’s decision last week to block release of e-mails sent by former Justice Spike Maynard to Massey Energy President Don Blankenship.

The dissent is posted here and the majority opinion in this 4-1 case is here.

Workman’s main point is spelled out pretty clear this way:

In the case at hand, a Justice sitting on the West Virginia Supreme Court of Appeals communicated by e-mail on a somewhat regular basis with a friend who was the Chairman and CEO of a party litigant with a case pending before the Court. With one exception, the literal content of those e-mails did not contain information relating to the conduct of public business.

The fact that those e-mails had been sent, however, did contain relevant information.

First and foremost, it discloses the existence of a personal relationship between a sitting Justice and a CEO of a party litigant. In addition, when the AP made its first FOIA request, a motion filed by the Plaintiffs in Caperton  seeking Justice Maynard’s recusal from that case was pending, the basis of which was his personal relationship with Mr. Blankenship.

The fact that the e-mails were sent, albeit on issues unrelated to matters pending before this court, is clearly relevant to the relationship between Justice Maynard and Mr. Blankenship.

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Will Maynard-Blankenship ruling erode W.Va. FOIA?


The people, in delegating authority, do not give their public servants the right to decide what is good for them to know and what is not good for them to know.

— W.Va. Freedom of Information Act

Well, that’s the way it is supposed to work, anyway.  Last week’s ruling by the West Virginia Supreme Court of Appeals in The Associated Press quest to get a look at former Justice Spike Maynard’s e-mail messages to Massey Energy President Don Blankenship might change that pretty significantly.

davis06.jpgThe 4-1 decision — with a majority opinion written by Justice Robin Davis — is one of the few cases in the history of West Virginia’s Freedom of Information Act that seems likely to reduce the information available to the public.

It’s hard to say what exactly what the long-term impact will be, but the reasoning employed by Davis could give secretive or mischievous West Virginia government officials some language to try to lean on if they want to withhold their appointment calendars, job-seeking letters or e-mails where they are campaigning on public time, and potentially a wide variety of correspondence if the person they are corresponding with happens to be an old friend.

“It’s mild to say that we are dismayed by the decision, which goes against the spirit and intent of the law,” said Franklin G. Crabtree, executive director of the West Virginia American Civil Liberties Union, which joined the Reporters Committee for Freedom of the Press in filing a friend-of-the-court brief in the case. “It’s our understanding that state FOIA was written to encourage a transparent government. This decision doesn’t do that.”

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