A West Virginia case currently before the U.S. Supreme Court asks this fundamental question: Is a person's right to due process violated when he appears in court before a judge who has benefitted from the financial backing of the opposing party?
Put more bluntly, do we have a right to expect that the judge handling our case isn't "bought and paid for" by the other side?
You might think the US of A is beyond such questions in 2009. But you would be wrong. Hugh Caperton, owner of Harman Mining in West Virginia, knows it. And I know it, too.
Our cases involved different issues and vastly different sums of money, but Caperton and I have one thing in common: We've both heard tales of interesting trips judges take on their vacations.
My personal experiences with what amount to "kept judges" in Alabama led me to start this blog. Hugh Caperton's experiences with kept judges in West Virginia led him to the steps of the U.S. Supreme Court.
My case involved several thousand dollars, and Caperton's involved tens of millions of dollars. But I've walked in Caperton's shoes. And we both have learned a hard fact about American life: Corrupt judges violate due-process rights all the time. Oral arguments in Caperton v. Massey indicate that Antonin Scalia and his conservative brethren on the U.S. Supreme Court want to keep it that way.
The Washington Post and other mainstream press outlets have done a solid job of reporting the issues Hugh Caperton faced. My case has received considerably less press attention, and the careful reader might ask, "Hey Schnauzer, how did you get screwed?"
Here is one of many posts I've written that lay out the details.
What about those interesting vacations that judges take? In West Virginia, the state supreme court overturned a $50-million verdict in favor of Caperton and Harman Mining. Not long after that, pictures surfaced of one of the justices vacationing in the French Riviera with the CEO of . . . Massey Coal. Curiously, the justice had voted against Harman and for Massey. Gee, can't imagine why he would do that.
Sources tell Legal Schnauzer that similar antics take place in Shelby County, Alabama, where my case originated before circuit judges J. Michael Joiner and G. Dan Reeves. Our sources say certain "local counsel" in Shelby County take the judges on excursions to Alaska--and the attorneys who foot the bill for these ventures in the wild tend to do quite well before the judges.
In fact, one attorney based in Jefferson County (where Birmingham is located) said he had an estate-related case coming up in Shelby County against one of the lawyers who paid for the Alaska trip. "They brought a baseless case against my clients, but I don't know how I'm going to win it because the other lawyer takes the judges to Alaska."
As for the case in West Virginia, the attorney for Massey Coal used oral argument before the U.S. Supreme Court to fill the air with high-minded rhetoric. He said our system is built on the "presumption" that judges are impartial.
But there is a huge gap between that presumption and real life in America's courtrooms.
Here's how Caperton's attorney, Theodore Olson, put it:
"The thing I ask people is: 'If you had an important case coming up and your opponent gave $3 million to elect the judge who was going to decide it, would you think that was fair?'" Olson said. "I haven't met a person yet who thinks that's fair."
Olson isn't likely to ever meet anyone who thinks that is fair. But don't be surprised if our current Supreme Court leaves such a flawed system in place.