Wednesday, June 10, 2009

Supreme Court Smacks Down Appearance of Bias

It's embarrassing. The U S Supreme Court just smacked down the high court of my state. In Caperton et al v. Massey Coal et al, the court found that a justice of the West Virginia Supreme Court of Appeals failed to properly recuse (or disqualify) himself. Please stop the emails with questions such as -are your judges still the finest that money can buy? Only funny for so long.

The facts of the case are that a large coal company was the loser in a civil case with a huge punitive damages award. The owner of the coal company allegedly formed one of those shadowy Section 527 organizations and spent nearly a gizillion dollars to elect his own candidate to the West Virginia high court. His guy narrowly won, and when the judgment against the coal owner was appealed, his guy was asked by the other side to recuse himself. He declined, and the matter was appealed to the highest court in the land.

Earlier this week, the supremes ruled by a typical 5 to 4 vote that the failure to recuse violates the due process clause of the U S Constitution. Some commentators see this as an expansion of the rule for disqualification to include cases where there is a distinct appearance of partiality as opposed to actual bias. Here is a news account regarding the case. Here is a summary of the decision by the SCOTUS blog. Here is the majority opinion by Justice Kennedy.

There is a connection to special ed law. Due process hearing officers and other administrative hearing examiners are generally held to a similar standard as judges with regard to disqualification. My fellow hearing officers will have to decide whether this opinion by the supreme court lowers the bar for disqualification as to the amount of apparent bias that will trigger disqualification. I've already had discussions about this decision with a number of hos, and they are evaluating the impact of this case. Stayed tuned for more.

Speaking of the supreme court, this is the last day to vote on our poll question. How would you vote on the special education law issue now before the high court? Exercise the "franchise."

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