Caperton v. Massey: How Could Four Justices Side with Massey?

OK, I’ll confess a bias: When I was in high school I dreamed of being a lawyer. I liked the idea of argumentation and found that I think like a lawyer. I was cured of this desire when I joined the debate team at George Mason University. I learned that very little time is actually spent in argumentation: most time is spent in libraries going through endless articles and most argumentation is not finding the best argument but rather in burying your opponent in tons of words (with little regard to efficacy).

In any case I still enjoy following how courts rule on different issues and I confess to a dream of someday meeting NPR’s Nina Totenberg. A few days ago I was listening to NPR about the Supreme Court’s recent decision in the case of Caperton v. Massey. Here are the facts of the case:

  • In 1998 Hugh Caperton (President of Harman Coal Company) sued the Massey Energy in West Virginia, claiming they were using fraudulent business practices to run him out of business. In 2002 a jury in Boone County, West Virginia agreed and awarded Caperton the sum of $50 million.
  • Not surprisingly, Massey Energy appealed and the case began to wend its way up through the courts. During this time (in 2004) West Virginia Judge Warren McGraw was running for reelection as a judge in the West Virginia State Court of Appeals. Massey’s CEO was Don Blankenship and he began to campaign against Judge McGraw. I’ve been reading articles on this case and I can’t find any previous relationship between Don Blankenship and Judge Warren McGraw.
  • In any case, Don Blankenship began to back another candidate, Brent Benjamin, for the office. In fairness, Blankenship had given money to political campaigns before, but the sums were small. With Benjamin running for office, however, he donated $3 million
  • The campaign against McGraw turned ugly: a web page called …and for the sake of the kids accused McGraw of voting “to let a child-rapist out of prison, and court records show the plan called for the rapist to work at a local school.” Not surprisingly, Brent Benjamin wins the election and gains a seat on the West Virginia Court of Apppeals.
  • Drum roll everyone: the case of Caperton v. Massey came before the court. The lawyers for Hugh Caperton asked Judge Benjamin to recuse himself as his position was due in large part to the generosity of the defendant, Don Blankenship. He refuses.
  • Another drum roll: The court reversed the decision by a 3-2 vote with Judge Benjamin voting for the majority.
  • Final drum roll: Hugh Caperton continues to appeal, arguing that Judge Benjamin is biased and should have recused himself. Eventually it reaches the Supreme Court who agrees to accept the case.

Now it becomes news. The Supreme Court finds that there is always going to be a fuzzy line with elected judges, but wherever the line falls, this is way beyond it. In the 5-4 majority opinion, Justice Anthony Kennedy ruled that Justice Benjamin should have recused himself: “Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when — without the consent of the other parties — a man chooses the judge in his own cause.” The opinion recognized that there may some fuzziness and there may need to be other rulings but this case was too far over the line.

The minority opinion used what I call the “Pandora’s Box” rational. Chief Justice John Roberts based his opinion on the fear of where this might go. Would Justice Benjamin have to recuse himself if the contributions were smaller? etc.

This clearly will begin an increase in litigation over judicial bias but I don’t necessarily think that’s a bad thing. The election of judges opens the door to all sorts of questions and the fact that it can’t be settled in one case doesn’t mean it isn’t worth doing.

The Long and Winding Road: Our Journey with Contractors

First the good news: the project is finally completed. When our last cat Kirby died in March we realized this was probably our best opportunity to get some projects completed in the house. Our home was built in 1969 and has been well taken care of. The previous owner sank a great deal of money into the kitchen and that was one the things that attracted us to the house. We were, however, a little puzzled that the master bathroom had not been touched and had all the original fixtures. We’d known for a long time that we wanted to update it.

We also thought this was a good time to replace the flooring. Most of the house (except the kitchen and bathrooms) had hardwood flooring and while we like not having to care for carpeting, it was time for a new floor. We like the look and feel of bamboo flooring and also like that it is “green” (ie, more renewable than other hardwood floors).

We also had a good contractor in mind. They are friends (actually she is Nancy’s brother’s ex girlfriend, but “friends” is an expansive term). That meant we trusted them to work on our house when we were on vacation the beginning of May. We realize what a gift we had that we could leave town and know the job was getting done. The original hope was that they would start work the day we left and by the time we were back the floor would be complete and the bathroom would be mostly complete. We expected it to take 2 to 3 weeks.

We should have known better; it’s finally finished after about 5 weeks. In the interim it’s been a comedy of unforeseen/unforeseeable delays and errors on the parts of some of the suppliers. The bathroom pretty much went as planned and that wasn’t the problem. The flooring, on the other hand, was a different story.

Here’s how it went from my memory:

  • The first part of the job was to remove the old flooring. That’s normally a pretty easy process as there are standards on how floors are laid in the beginning. However, whoever laid the original flooring used some kind of glue or cement that I can only describe as Kryptonite that went directly on the slab under the house. The guys who were doing the job had to literally jackhammer the old flooring off. About the time the floor was supposed to be completed they were about 75% of the way toward removing the old floor.
  • They underestimated the square footage of the flooring they needed to order. We asked for some decorative work to be done just inside the front door and this threw off the estimate. This meant that when they were completing the job they ran out of wood with only 2/3 of the spare room done. The whole thing had to stop while more flooring had to be ordered and shipped from the East Coast.
  • Here’s where it actually gets frustrating: Ordering more of something that you’ve already ordered should be a fairly simple job. But the flooring people (and let’s be clear here, not the contractor) ordered the wrong stuff three different times. Each time it had to be sent back and the new order had to wend it’s way across the country. Oh yes, and when the correct stuff did arrive, it needed to “season” in the house for 3 days before it was installed.

Again, the end result was excellent and we are pleased with the flooring, but exasperated at how long it took. What was supposed to be finished around May 10th wasn’t done until June 5th. And again, to be fair, we were thrilled with the contractors and highly recommend them (let me know if you need a reference) and they have learned to stop using these flooring guys. Also, I was clear that I’d rather have it done right than fast and didn’t accept any suggestions of shortcuts.

We’re glad it’s over. Next step: a new cat. Stay tuned.

Memorial Day: Remembering Those Who Have Fallen

It’s become an annual tradition for me to post on Memorial Day. Since shortly after the Civil War families of those who were killed in war have felt the need to commemorate their sacrifices. Since 1868 it has been a national holiday, now celebrated on the 4th Monday of May. Last year I noted that 4083 of our young men and women have died in Iraq since 2003. The number is now 4300.

That is, in a sense, good news in that only 217 have died in the last year, but that’s of little consolation to their families. The major focus of the war is moving to Afghanistan and I’m having a hard time finding a web page that tracks casualties there.

Regardless, it’s a good day to thank a veteran.

Manny Ramirez: How I'll Spend My Summer Vacation

As many of you know, I am part of a mixed marriage: I root for the San Diego Padres while my wife Nancy is a lifelong fanatic for the Los Angeles Dodgers. The news this week for the Dodgers has not been good: their star player Manny Ramirez has been suspended for 50 games for using a banned substance. Manny released this announcement when the results were known:

Recently I saw a physician for a personal health issue. He gave me a medication, not a steroid, which he thought was OK to give me. Unfortunately, the medication was banned under our drug policy. Under the policy that mistake is now my responsibility. I have been advised not to say anything more for now. I do want to say one other thing; I’ve taken and passed about 15 drug tests over the past five seasons. I want to apologize to Mr. McCourt, Mrs. McCourt, Mr. Torre, my teammates, the Dodger organization, and to the Dodger fans. LA is a special place to me and I know everybody is disappointed. So am I. I’m sorry about this whole situation.

OK, now for some facts.

First, I’m not impressed with the fact that he passed about 15 drug tests; we expect the players to pass all their drug tests, not 15 out of 16. Many people in this country who don’t play baseball (myself included) work for companies that do drug testing and none of us could imagine defending ourselves by claiming that we’re usually clean.

Second, he tries to distance himself from this by claiming that he went to a physician for a “personal health issue.” I’m not sure what this issue is, but the team physicians on all teams tell players not to take anything they haven’t approved. They are the MD’s who know what is allowed and not allowed and even if Manny felt the need to seek medical treatment outside the team, he could at least have shown the medication to the team MD and asked if it was allowed.

Finally, this medication is not something you’d expect a healthy 36 year old man to take. It’s called human chorionic gonadotropin, or hCG. This is normally taken by women who are trying to conceive and it’s also used as an early pregnancy test. Manny is probably not trying to get pregnant but it’s also used to mask the use of artificial testosterone which was also found. You can read an excellent article on ESPN; it states that a test during spring training showed an elevated level of testosterone. Further tests showed the testosterone came from an artificial source, and there was other evidence of hCG use. This gave MLB the justification for the suspension.

The worst of this is that the Dodgers were doing so well. They are currently 21-9 and until just recently were undefeated at home. They are still a good team and I expect they will win the NL West this year but there’s no way around the fact that Manny has let down his teammates, his team, and the fans in Los Angeles. His bat will be silent for the next 50 games and this was because he made a poor choice.

I hope he spends the next 50 games looking for ways to pay back the fans of Los Angeles.

Baltimore: It's No Hawaii

It’s the beginning of May and that means it’s time for Nancy’s annual PAS meeting. Last year was in Hawaii and we knew it would be hard to beat. While Nancy goes to meetings, I get to explore the city and do some genealogy research. Or at least I could if it weren’t raining the whole time. We’re planning to leave today and it’s been raining nonstop since we arrived.

Baltimore may appear to be a strange place to do family tree research, but there is a connection. Some of my ancestors were Acadians who inhabited present day Nova Scotia (I was called “Acadia” then). In 1763 the British deported them. My ancestors went to New Brunswick, many went to New Orleans (where they became Cajuns) and a few went to Baltimore. One of these was my 2nd cousin, 6 times removed, Daniel LeBlanc (1729-1810) who died in Baltimore. The chance of finding his tombstone is essentially nil (the original cemetery was abandoned and the bodies moved with the stone. Stones at that point were marble and would not have survived 200 years and a move) but perhaps there were some descendants I could trace. Alas, the idea of taking a bus halfway across town and tramping around a cemetery in the pouring rain didn’t sound very appealing and I’ll have to wait until my next trip to Baltimore for this.

The good news department is that we leave today for Virginia. My nephew Nathan is graduating from Old Dominion University on May 9th and I’ll be able to be there for that. I just hope the weather breaks.

Want to Join Me in Starting the "Galileo Award?"

For a long time I’ve toyed with the idea of starting a web page that annually awards the dumbest teaching or ruling from the Catholic Church that year. The obvious reason for the name is the way the 17th Century Catholic Church treated Galileo Galilei (1564-1642).

Galileo (and Nicolas Copernicus before him) challenged the theory that the sun revolved around the earth. As a reward for his scientific work the Church denounced him, ordered him to recant, and held him under house arrest. The Church argued that he must be wrong because Psalm 93:1 states: “Yea, the world is established; it shall never be moved.” Also, Psalm 104:5 says: “[God] didst set the earth on its foundations, so that it shall never be shaken.” Finally, Ecclesiastes 1:5 states: “The sun rises and the sun goes down, and hastens to the place where it rises.” [Quotations are from the Revised Standard Version Bible]

Now, in fairness, there has been some progress since 1633. In 1943 Pope Pius XII wrote the encyclical Divino Afflante Spiritu which essentially stated that the Catholic Church is not fundamentalist in reading Scripture. And in 1992 Pope John Paul II announced that Galileo was correct; this is particularly inspiring as it came only 23 years after the moon landing.

And while the Church now acknowledges Galileo was right, and while I still find great joy and love in being Catholic, she continues to make occasional stupid and senseless rulings. Catholics of my generation remember well the 1968 encyclical On Human Life, better known as Humanae Vitae that created great pain for young married couples. Other notables are the 1992 document from the Congregation of the Doctrine of the Faith (aka the Office of the Inquisition) that allows for discrimination against our gay brothers and sisters and Vatican’s support of those who demanded that Terry Shiavo be kept alive long after it was clear that it was time to say goodbye to her.

The event that finally moved to me throw this suggestion to the cyberworld is the latest publication from the United States Conference of Catholic Bishops on Reiki. For the unaware, Reiki is a spiritual practice that has been adopted for healing. Reiki practitioners use energy practices on people who are experiencing illness or pain, and we use this at San Diego Hospice where I work. I have to confess that I don’t fully understand how it works, but I also don’t understand acupuncture, aroma therapy, or a host of other alternative therapies. In any case, our bishops have decided that reiki is really about attacking faith and they have condemned it as being unscientific. Hard to imagine what Galileo is thinking about that. You can download the PDF on their ruling here.

In any case, this is my first nominee for 2009. I suggest the award be given on January 8th, the anniversary of Galileo’s death. This conforms to Catholic tradition where a saint’s day is determined by the date of his death, or in other words, his birth into Heaven.

Let me know what you think.

Goodbye Kirby

Last month we bade a sad goodbye to our cat, Kirby. Longtime readers of this blog remember that our other cat, Hoover, died peacefully four years ago on May 2, 2005. He was 15 at the time. For the past few years Kirby has enjoyed being the only cat in the house and his health has been in good health for most of it.

We noticed a few months ago that he was doing what we called a “silent meow;” that is, he would look like he was meowing but no sound came out. That didn’t concern us, but in February his purr changed pitch and over the next few weeks we noticed he wasn’t drinking very much. We brought him to his veterinarian Dr. John Hetzler, DVM who told us that Kirby was indeed having trouble with his swallow reflex. He did a quick X ray that showed that there was no massive tumor (which was our biggest fear) but that he had swallowed a huge amount of gas and suggested, no kidding, Maalox. Unfortunately that didn’t do any good and we needed to have Kirby re-hydrated.

Dr. Hetzler was very good with us and explained that Kirby is probably suffering from some kind of neuropathic condition that was making it hard for him to swallow, especially liquids. We could have done any number of tests, but the results would almost certainly have told us that either there was nothing to be done, or that it would have been much too expensive. Frankly, Kirby was nearly 19 years old, he had a wonderful life, and it was time to let him go. On March 18th we brought him in and he was euthanized. As with Hoover, it was a painful decision, but it was our last chance to care for him. We’re comforted by the fact that in his 19 years he was well cared for. He was never cold, hungry, or in danger.

Our next step? Well, for the first time in we have no pets in our home. We have some fixing up to do around the house and this provides us with the perfect opportunity. We have some projects to do in the next few months and we expect to repopulate the house sometime this summer. Stay tuned.

Happy Belated Birthday to my Prius

Three years ago on March 17th I bought my Prius (OK, before you start thinking I’m some kind of savant who can multiply huge numbers in my head or know what day of the week Jesus was born, I remember this date only because it’s also my sister’s birthday). As of the 17th I had 78,636 miles. That comes out to 26,223 miles per year, down from 26,950 per year last year. I expect my mileage to go down dramatically next year. I’ve changed territories at work and drive much fewer miles: I now see patients in La Jolla, University City, and Point Loma.
In any case, I still enjoy the car, still enjoy the karma, and still enjoy the sticker that allows me to use the carpool lanes even if I’m alone.

Shock and Outrage Reaches a New High

This is a story I read in my local paper, the San Diego Union Tribune, and still can’t believe it’s true. In Luzerne County, Pennsylvania two federal judges, Mark A. Ciavarella Jr. and Michael T. Conahan, have plead guilty to accepting money to send juveniles to a privately owned (for profit) juvenile detention center.

You can read the timeline here and you should. Basically they were paid by the operators of the facility to sentence juvenile offenders to long sentences, disproportionate to their offenses.

Perhaps the best synopsis is an editorial from the local newspaper, the Citizen’s Voice:

Luzerne County’s top judges have hurt, betrayed and shamed all of Luzerne County.
For the last six years, Michael T. Conahan and then Mark A. Ciavarella Jr. served as president judges, at the very top of the Luzerne County judiciary.
Instead of assuring the justice we expect when we appear in county court, the two men, through a variety of complex schemes, severely violated the public trust as they secretly raked in $2.6 million for themselves, according to federal prosecutors.
Federal officials say the two defrauded taxpayers, in part by arranging for county money to build a juvenile center from which they would secretly profit. They assured the center would have plenty of paying customers by tearing juveniles from their families and sending them to the facility, at times against the advice of probation officers.
The judges covered up their schemes, filing false documents and lying about their income to the state and to the Internal Revenue Service, federal officials say.
Conahan and Ciavarella entered a plea agreement Friday to two counts each of fraud and agreed to 87-month federal prison terms, disbarment and restitution.
County residents, although angered and disgusted with the news, were not all that surprised. The indictments Monday confirmed the very worst of their fears.
Rumors and speculation about corruption within the county courthouse have been circulating for more than a year, and many area residents say these charges of fraud, even against judges, are not so surprising for Luzerne County.
Still, Judge Chester Muroski, in comments Monday morning, offered hope for an immediate new beginning to the county’s judicial system.
The remaining county judges will “do everything we need to restore pubic confidence in the court,” said Muroski. Fairness and justice without outside influences would be top priorities, he promised.
The courthouse probe will continue and federal officials ask the public for help with information that may aid their investigation.
We urge the remaining county judges and all who will take the bench in the future to remember Conahan’s and Ciavarella’s shameful examples.
Remember, too, they must earn the trust we so badly need from our judges.

The next question, of course, is how we do restitution to those children who were improperly incarcerated. I pray for their healing.

Happy Birthday President Lincoln

I pray no American isn’t aware of this, but 200 years ago today Abraham Lincoln (1809-1865) was born in Hardin County, Kentucky. He was a great man at a time when our nation needed a great man and it’s hard to imagine what our nation would look like if he hadn’t been there.

He is also a man of great paradoxes. If you haven’t read Team of Rivals I suggest that you do. Doris Kearns Goodwin is an superb writer and she gives an excellent portrait of Lincoln. The point of her book is that when newly elected President Lincoln was choosing his cabinet he chose the men who ran against him for the Republican nomination. They were more than simple rivals: they disliked him and never took him seriously as an opponent. The fact that Lincoln selected them and eventually won them over shows how secure a man he was.

On the other hand, he had deep periods of depression earlier in life. The love of his life, Ann Rutledge died at 22. Lincoln was sent into a depression so deep that his friends put him on what we would call a suicide watch. In 1841 he wrote this to his first law partner John Stuart: “I am now the most miserable man living. If what I feel were equally distributed to the whole human family, there would not be one cheerful face on the earth. Whether I shall ever be better I can not tell; I awfully forebode I shall not. To remain as I am is impossible; I must die or be better, it appears to me.”

After Ann’s death he married Mary Todd Lincoln and they had four sons; only one survived into adulthood and there are no living descendants of Lincoln. More is the pity as this was a gene pool that would have benefitted the world.

Take some time to read his Second Inaugural Address and The Gettysburg Address.