Legal News

States and Judicial Recusal: Alabama AG Troy King Has His Say

By Ashby Jones

Troy King, the Alabama attorney general, believes deeply — very deeply, it seems — in the concept of federalism. How do we know this? Because he recently sent us a letter, in response to an earlier post, in which he explained his rationale for writing an amicus brief in the Massey Coal case pending before the U.S. Supreme Court. The letter begins: “Some have criticized my decision to file a friend-of-the-court brief in the Caperton v. A.T. Massey Coal Co. case pending before the United States Supreme Court and they have done so without even reading my brief. . . .”

But before we go any further, let’s get you up to speed (yet again) on the situation as it stands in this long and very strange case. (Pause for deep breath.)

Over a year ago, West Virginia’s supreme court overturned a $50 million jury verdict against Massey Energy. Shortly thereafter the court agreed to rehear the case after photos surfaced showing one of the judges, former chief justice, Elliott “Spike” Maynard, and Massey’s CEO, Don Blankenship, fraternizing together in Monaco. Last May, the justices reaffirmed their November ruling in favor of Massey.

On March 3, the U.S. Supreme Court is set to hear the case, about whether the due process clause required a different justice, Brent D. Benjamin — whose campaign received indirect support of more than $3 million from Massey CEO Blankenship but refused to disqualify himself from cases involving Massey — to step aside. (Click here for docs, compliments of Scotus blog; click here for LB background.)

Many organizations have filed amicus briefs for the petitioner. Who might support Massey Energy and Justice Benjamin? None other than Alabama AG Troy King.

King wrote a brief in support of Massey, explaining both there and in his letter to the Law Blog, that states should be able to make up and adhere to their own rules regarding judicial recusal. Writes King:

The United States Constitution was established on the principle of federalism – that the federal government is a limited government of specifically enumerated powers given to it by the States. Consistent with this principle, certain matters have traditionally been within the province of the States to regulate; one such matter has been the supervision of state court judges to ensure impartiality and fairness. . . .

Some States might determine that simply supporting someone’s election or appointment to judicial office always creates at least a potential “appearance” of impropriety should the supporter ever come before the court as a party. But other States might not and, based on their experience, might instead determine that such support is just an inherent part of a well-established process that raises no real or perceived bias. My concern is not to take sides in that debate, but rather to ensure that the States are entitled to have that debate, that is, to ensure that the States are not saddled with a single, wooden, national rule that cannot – and will not – take account of valid State-to-State differences.

Law Blog readers, we suspect that some of you might find King’s words persuasive. Others might find it the type of argument that the 14th Amendment was passed to address. Let’s hash it out below, shall we?

Full post as published by Law Blog - WSJ.com on January 30, 2009 (boomark / email).