The United States Supreme Court recently reversed a decision by the Supreme Court of West Virginia on the basis that campaign contributions by Massey Coal's CEO, Don Blackenship, to one of the Judges in the West Virginia majority created an appearance of impropriety or a "serious risk of actual bias." Unlike Maryland, West Virginia has contested elections for its appellate judges. Several years ago Bowie & Jensen, LLC represented a contractor in a residential construction dispute against one of the justices on the West Virginia Supreme Court and her husband a prominent Plaintiff's attorney. The local rumblings indicated that his money got her elected, and the pair had been the subject of a less than flattering article published in The Wall Street Journal. The Journal article suggested that rulings by Justice Robin Davis at the appellate level had paved the way for large jury awards and large settlements for her husband of which she was a direct beneficiary.
Davis and Segal filed suit against our client in a West Virginia State trial court. Because there was diversity of citizenship and the amount in controversy exceeded $75,000 we sought to remove the case to Federal Court. However, we ran into the first of several problems. We could not find local counsel. Many attorneys would not take the case out of concern for retribution against other clients and themselves should they find themselves in front of Davis. Eventually, we found local counsel, an attorney who had been involved in a locally publicized dispute over the postings by certain Justices on the West Virginia Supreme Court website. We successfully removed the case, but then ran into further problems, including reluctant witnesses, inability to access certain public records and an onslaught of discovery motions.
Ultimately, the Federal Judge (not subject to contest elections) assigned to the case recused himself out of a concern that his relationship with the Justice Davis may be perceived by either party as affecting the outcome of the case. He agreed to mediate the case and it eventually settled.
Now, Justice Davis is back in the news for authoring the majority opinion that reversed the jury verdict reached at the trial court. It is this decision that Justice Benjamin, the beneficiary of Blackenship's generosity, joined and then authored a concurring opinion to justify his refusal to recuse himself.
Back to Maryland. Several years ago, the wife of then Baltimore Mayor Martin O'Malley became a District Court Judge, another position that does not have contested elections. She recused herself from cases involving the City and the Baltimore City Police to prevent any perceived bias.
While the United State Supreme Court's recent decision represents significant progress and is a "shot across the bow" for contested judicial elections, there are still States and jurisdictions that are highly political or parochial. The lesson in all of this for contractors is to choose carefully when deciding to do business in a particular State or if there is a concern regarding the independence of the judiciary (who will ultimately decide any disputes) include a well-drafted forum selection clause or arbitration provision. The forum selection clause should designate a specific State or county in which disputes must be brought. Likewise, an arbitration provision should select the location of the arbitration, the number of arbitrators, and the governing law.
For further information, please contact Matt Hjortsberg at Hjortsberg@bowie-jensen.com or 410-583-2400.
Davis and Segal filed suit against our client in a West Virginia State trial court. Because there was diversity of citizenship and the amount in controversy exceeded $75,000 we sought to remove the case to Federal Court. However, we ran into the first of several problems. We could not find local counsel. Many attorneys would not take the case out of concern for retribution against other clients and themselves should they find themselves in front of Davis. Eventually, we found local counsel, an attorney who had been involved in a locally publicized dispute over the postings by certain Justices on the West Virginia Supreme Court website. We successfully removed the case, but then ran into further problems, including reluctant witnesses, inability to access certain public records and an onslaught of discovery motions.
Ultimately, the Federal Judge (not subject to contest elections) assigned to the case recused himself out of a concern that his relationship with the Justice Davis may be perceived by either party as affecting the outcome of the case. He agreed to mediate the case and it eventually settled.
Now, Justice Davis is back in the news for authoring the majority opinion that reversed the jury verdict reached at the trial court. It is this decision that Justice Benjamin, the beneficiary of Blackenship's generosity, joined and then authored a concurring opinion to justify his refusal to recuse himself.
Back to Maryland. Several years ago, the wife of then Baltimore Mayor Martin O'Malley became a District Court Judge, another position that does not have contested elections. She recused herself from cases involving the City and the Baltimore City Police to prevent any perceived bias.
While the United State Supreme Court's recent decision represents significant progress and is a "shot across the bow" for contested judicial elections, there are still States and jurisdictions that are highly political or parochial. The lesson in all of this for contractors is to choose carefully when deciding to do business in a particular State or if there is a concern regarding the independence of the judiciary (who will ultimately decide any disputes) include a well-drafted forum selection clause or arbitration provision. The forum selection clause should designate a specific State or county in which disputes must be brought. Likewise, an arbitration provision should select the location of the arbitration, the number of arbitrators, and the governing law.
For further information, please contact Matt Hjortsberg at Hjortsberg@bowie-jensen.com or 410-583-2400.
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