Court considers case on judicial ethics
WASHINGTON
Friday, 10 October 2008 18:21:46
By MARK SHERMAN - Associated Press Writer
Supreme Court justices regularly confront cases involving companies they own shares in or that employ a family member. The decision is easy _ the justices have a conflict of interest that forces them to play no role in the case.
But what happens when the issue is less clear and a judge has the appearance of a conflict, but no personal stake in the outcome of a dispute? The court is considering a case that asks whether the Constitution requires judges to step aside in that instance.
The justices met in private Friday to discuss a lawsuit over a coal contract in West Virginia in which a state Supreme Court justice rejected calls to step aside because the leader of one company in the case spent more than $3 million to help him get elected.
Justice Brent Benjamin twice was in the majority in 3-2 decisions overturning a $50 million jury verdict against Massey Energy Co. Don Blankenship, Massey's president, chairman and chief executive officer, was a key Benjamin backer. Two other state court justices recused themselves from the case the second time it was under consideration.
The losing party, Harman Mining Corp., says the appearance of bias by Benjamin is so strong that Harman's constitutional rights were violated. Former Solicitor General Theodore Olson is representing Harman.
Massey contends that a popularly elected judge has no duty to sit it out when there is no actual bias.
The Supreme Court's most recent brush with an appearance of a conflict arose in 2004. That year, Justice Antonin Scalia went duck hunting with Vice President Dick Cheney while the court was considering Cheney's request to keep private the details of closed-door White House strategy sessions on an energy policy.
Scalia rejected arguments that his impartiality was compromised by the hunting trip and was part of the 7-2 decision that effectively kept the meetings private.
The court could announce as early as Tuesday whether it will take up the West Virginia case.
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Justice Stephen Breyer, meanwhile, has taken steps to reduce the number of cases from which he must excuse himself.
Breyer took part in discussion of at least three cases that the court rejected this week involving companies in which he or his wife, Joanna, formerly owned stock.
The couple owned shares in more than three dozen companies, the most on the court, according to the justices' annual financial disclosures filed earlier this year.
The companies include BP PLC, Exelon Corp. and United Technologies Corp., which were on the winning end of court orders this week. Breyer owned shares valued at $100,000 to $250,000 in Exelon, $50,000 to $100,000 in United Technologies and $15,000 to $50,000 in BP.
The justices are among a select group of federal officials who can defer capital gains taxes on certain stock sales when they reinvest the proceeds in government securities or mutual funds.
Breyer's participation in those cases "reflects the fact that he or his wife ... sold that interest," said Supreme Court spokeswoman Kathy Arberg.
They intend to continue the stock sales "to minimize the number of instances in which financial conflicts require recusal," Arberg said.
Chief Justice John Roberts and Justice Samuel Alito also have sold stocks, according to their reports.
Bloomberg News first reported Breyer's stock sales.
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Abbott and Costello, they're not. But the justices occasionally play off each other to the amusement of their audience.
Roberts announced the wrong case on Tuesday only to be quickly corrected by his colleagues and the lawyer whose turn it was to begin his argument.
"It's still early in the term," said Roberts, mildly embarrassed by his mistake.
Then Justice Anthony Kennedy cut in. "Do you have any views on the other case?" Kennedy asked the lawyer waiting to begin.
"None whatsoever, Your Honor," said Arizona Assistant Attorney Joseph T. Maziarz.