A report published this month by a nonpartisan group cites West Virginia as prime evidence that judicial impartiality is under increasing threat, and judges should face more rigorous recusal standards.

In "Fair Courts: Setting Recusal Standards," published by the Brennan Center for Justice at New York University's School of Law, the authors refer several times to efforts to get several West Virginia Supreme Court justices to remove themselves from the appeal of a multimillion verdict in a case between Massey Energy and Harman Mining.

"The time has come for all courts - and particularly elected courts - to take active measures to restore public trust," the report's authors write. "Courts must demonstrate their accountability for the decisions they make by more aggressively distancing themselves from situations in which their fairness and impartiality might reasonably be questioned."

In January, Chief Justice Elliott "Spike" Maynard recused himself from the Harman case after photos surfaced showing him and Massey CEO Don Blankenship together on the French Riviera in July 2006.

When the photos were taken, Massey's appeal of a multimillion-dollar verdict in favor of Harman and its owner, Hugh Caperton, was pending in front of the state's high court. Maynard voted with the 3-2 majority to overturn the verdict against Massey.

Maynard, who has acknowledged a decades-long friendship with Blankenship, denied any wrongdoing.

Justice Larry Starcher, whose recusal from the case is quoted twice in the Brennan Center report, also stepped aside, citing public comments he had made that were critical of Blankenship and Massey. Starcher did not step aside until after Maynard did.

Starcher called upon Justice Brent Benjamin to also recuse himself, because Blankenship contributed about $3.5 million to a campaign targeting Benjamin's opponent in the 2004 election.

Benjamin has refused to step down. He has twice voted in the 3-2 majority to overturn the verdict against Massey, which has grown to roughly $77 million with interest.

The Brennan report's authors identify two trends that hurt the perception of impartiality in America's courts: the growing influence of money in judicial elections, and the relaxing of restrictions on what judges can say publicly, particularly during elections.

According to the study, people running for state supreme court justice between 1994 and 1998 raised a total of $73.5 million, with 19 candidates amassing more than $1 million individually. Between 2000 and 2004, the total was $123 million, with 37 candidates surpassing the $1 million mark.

Maynard, who is running for re-election this year, has raised almost $485,000 to date, according to his most recent campaign finance filing.

His opponents in May's Democratic primary - former state Supreme Court Justice Margaret Workman, Huntington lawyer Menis Ketchum and West Virginia University law professor Bob Bastress - have raised $610,000, $356,000 and $73,000, respectively. Charleston lawyer Beth Walker, the only Republican running, has raised $113,000. Two Supreme Court seats are open.

"Big money is changing the character of judicial election campaigns," the study states. "These campaigns are now high-stakes contests in which chambers of commerce, tort reform lobbyists, organized labor, plaintiffs' lawyers, and other, often much narrower, interest groups spend substantial resources - frequently without disclosing the sources of their funding."

A report published this month by a nonpartisan group cites West Virginia as prime evidence that judicial impartiality is under increasing threat, and judges should face more rigorous recusal standards.

In "Fair Courts: Setting Recusal Standards," published by the Brennan Center for Justice at New York University's School of Law, the authors refer several times to efforts to get several West Virginia Supreme Court justices to remove themselves from the appeal of a multimillion verdict in a case between Massey Energy and Harman Mining.

"The time has come for all courts - and particularly elected courts - to take active measures to restore public trust," the report's authors write. "Courts must demonstrate their accountability for the decisions they make by more aggressively distancing themselves from situations in which their fairness and impartiality might reasonably be questioned."

In January, Chief Justice Elliott "Spike" Maynard recused himself from the Harman case after photos surfaced showing him and Massey CEO Don Blankenship together on the French Riviera in July 2006.

When the photos were taken, Massey's appeal of a multimillion-dollar verdict in favor of Harman and its owner, Hugh Caperton, was pending in front of the state's high court. Maynard voted with the 3-2 majority to overturn the verdict against Massey.

Maynard, who has acknowledged a decades-long friendship with Blankenship, denied any wrongdoing.

Justice Larry Starcher, whose recusal from the case is quoted twice in the Brennan Center report, also stepped aside, citing public comments he had made that were critical of Blankenship and Massey. Starcher did not step aside until after Maynard did.

Starcher called upon Justice Brent Benjamin to also recuse himself, because Blankenship contributed about $3.5 million to a campaign targeting Benjamin's opponent in the 2004 election.

Benjamin has refused to step down. He has twice voted in the 3-2 majority to overturn the verdict against Massey, which has grown to roughly $77 million with interest.

The Brennan report's authors identify two trends that hurt the perception of impartiality in America's courts: the growing influence of money in judicial elections, and the relaxing of restrictions on what judges can say publicly, particularly during elections.

According to the study, people running for state supreme court justice between 1994 and 1998 raised a total of $73.5 million, with 19 candidates amassing more than $1 million individually. Between 2000 and 2004, the total was $123 million, with 37 candidates surpassing the $1 million mark.

Maynard, who is running for re-election this year, has raised almost $485,000 to date, according to his most recent campaign finance filing.

His opponents in May's Democratic primary - former state Supreme Court Justice Margaret Workman, Huntington lawyer Menis Ketchum and West Virginia University law professor Bob Bastress - have raised $610,000, $356,000 and $73,000, respectively. Charleston lawyer Beth Walker, the only Republican running, has raised $113,000. Two Supreme Court seats are open.

"Big money is changing the character of judicial election campaigns," the study states. "These campaigns are now high-stakes contests in which chambers of commerce, tort reform lobbyists, organized labor, plaintiffs' lawyers, and other, often much narrower, interest groups spend substantial resources - frequently without disclosing the sources of their funding."

Recent surveys cited by the authors indicate that more than 70 percent of Americans believe that campaign contributions have "at least some influence" on judges' courtroom decisions, while 56 percent of state court judges believe that "judges should be prohibited from presiding over and ruling in cases when one of the sides has given money to their campaign."

In addition, disqualification and recusal procedures are underused and underenforced, the authors maintain.

"Allowing judges to decide challenges to their own impartiality is not a policy calculated to promote vigorous enforcement," the authors wrote. "Moreover, the fact that judges generally are required neither to hold hearings on the claim nor to give reasons for their decisions makes it easy for them to reject even meritorious disqualification motions with impunity."

And just like everyone else, judges may have blind spots regarding their own biases, the report states.

"[R]esearch on social psychology shows that much bias is unconscious and that people tend to underestimate and undercorrect for their own biases and conflicts of interest. Thus, even a judge trying to conscientiously decide a motion for her disqualification may be unable to appreciate biases apparent to more objective observers."

Steven Lubet, a law professor at Northwestern University who specializes in judicial ethics, said Tuesday that the issues surrounding judicial disqualification and recusal have become mainstream, even becoming fodder for "The Appeal," author John Grisham's latest legal thriller. Grisham has said events in West Virginia influenced the book's plot.

Lubet supports a built-in appeal process, where an impartial panel can review a judge or justice's decision.

"I don't think human beings are very good at judging their own impartiality under any circumstances," he said.

As judicial campaigns become more contentious and expensive, the issue of campaign contributions pits the possible appearance of impropriety versus an individual's right to participate in the democratic process, he said.

"It's not necessarily the case that a justice would be biased in favor of a campaign contributor, but it's certainly the case that people will wonder about it," he said. One possible solution is to put a monetary cap on contributions, noting that the U.S. Supreme Court has ruled that such limits are constitutional.

"One of the virtues of an elected judiciary is that judges who fail to meet the public's expectations of judicial disqualification, they have to face the voters again," he said.

To read the report online, visit www.brennancenter.org/content/resource/fair_courts_setting_recusal_standards.

To contact staff writer Andrew Clevenger, use e-mail or call 348-1723.