Two giant coal companies got into a contract dispute.
As big companies able to afford lawyers, they sued each other.
After four years of litigation, the case went to trial. One of the companies won a $50 million judgment against the other. The loser didn't want to pay and still had plenty of money for lawyers, so the company appealed.
The case was in West Virginia where the state supreme court justices are elected along with the governor and the legislature. Before the appeal could be heard, the CEO of the losing coal company, Don Blankenship, went to work. He created a non-profit entitled "And For the Sake of Kids" to contribute money to the election campaign of a candidate, Brent Benjamin.
The non-profit spent more than $3 million on Benjamin's campaign, more than all of Benjamin's other supporters combined. Benjamin was elected as a new West Virginia Supreme Court justice.
Blankenship, not wanting to lose the appeal, also took Justice Spike Maynard vacationing in the French Riviera and had his lawyers petition the court to ask Justice Larry Starcher to recuse (legal term for stepping down because of a conflict) himself because he had publicly called Blankenship "stupid" and a "clown."
Justice Starcher said he was going to stay on the case on the theory that "stupid clown" may have been true about Blankenship, but he had said nothing about the company that was in the lawsuit. Eventually Justice Starcher decided to step down from the case.
When pictures showed up from the Riviera, Justice Maynard decided to step down as well. These two departures left newly elected Justice Brent Benjamin on the case, fresh off a campaign triumph funded by "And For The Sake of Kids."
Despite efforts to get Justice Benjamin removed from the case, he decided to stay and was vote number 3 in a 3-2 victory for Blankenship's company. The decision came 10 years and a crucial judicial election after the case had started.
Of course, being big companies and having money, the losing company appealed to the United States Supreme Court.
The losing company claimed that having Justice Benjamin hear and decide the case violated the company's due process rights under the 14th Amendment of the Constitution. Or in everyday language -- Hey, that wasn't fair, please for the sake of the kids give us another chance.
Easy decision, right?
Letting someone buy the election of a favorable judge feels like a knife through the heart of justice. Well, five of the nine Supreme Court Justices thought so. Yet four disagreed.
Chief Justice Roberts, in the dissent, claimed the majority decision would have dire consequences for "public confidence in judicial impartiality."
Frankly, I think he got it backward -- if the Supreme Court hadn't disqualified Benjamin, the public would have lost confidence in judicial impartiality.
Apparently John Grisham thought so as well, when he borrowed liberally from this case for his book, "The Appeal."
Utah is only one of 11 states that does not elect its judges. The Utah State Constitution carefully constructed an independent judiciary. We do have the right to remove judges in an election, but we aren't choosing between candidates.
Utah's system is much closer to the federal Constitution and the separation of powers created by the founders. The independence of the judiciary leads to more public confidence in the judiciary, not less.
Oh and in case you are wanting a different system, over in West Virginia the elections of the judges kept happening while the case went up to the Supreme Court.
The U.S. Supreme Court decision sent the case back to West Virginia for a new hearing with a newly elected panel of judges who ruled 4-1 for Blankenship's company.
E. Kent Winward is an Ogden attorney. He can be reached at 801-392-8200 or email@example.com.