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High court to rule when judges must bow out
Top Legal News | 2008/11/14 02:51
The Supreme Court stepped into a sensitive dispute Friday over a state judge's decision to participate in a case that involved a key campaign supporter.

The justices typically avoid cases about judicial ethics, but they agreed to review the actions of a West Virginia Supreme Court justice whose vote overturned a $50 million verdict against a company that is run by the most generous backer of his election.

The high court's decision comes amid growing concern over the role of money in electing state judges. Campaign spending on state supreme court elections rose by 25 percent to nearly $20 million from 2006 to 2008, a national justice reform group said.

Don Blankenship, the chief executive of Massey Energy Co., spent more than $3 million to help elect Justice Brent Benjamin to the West Virginia high court. Benjamin twice was part of 3-2 majorities that threw out a verdict in favor of Harman Mining Co. in its coal contract dispute with Massey.

Harman said Benjamin's participation in the case created an appearance of bias strong enough to violate its constitutional rights.

The American Bar Assocation and other legal ethics groups have taken Harman's side.

In earlier cases, the Supreme Court has said that judges must avoid even the appearance of bias.

Benjamin repeatedly rejected calls to recuse himself from the case when it was before the state high court. He has since said that he fairly judged the dispute.

Benjamin issued a lengthy defense of his actions, pointing out that he had no financial interest in the outcome of the case and the campaign money went to an independent group, not his campaign. He had no comment Friday after the court accepted the case for review.

Massey vice president and general counsel Shane Harvey said, "We are confident that the Harman case was properly decided by the West Virginia Supreme Court."

David Fawcett, a Pittsburgh attorney who represents Harman and its founder, Hugh Caperton, said, "The question at issue here is central to the future of our court system." Former Solicitor General Theodore Olson will argue the case for Caperton at the Supreme Court, probably in March or April.

Retired Supreme Court Justice Sandra Day O'Connor has not commented on the West Virginia dispute, but she has bemoaned the role of money in state judicial elections.

"There is too much special interest money and influence in state court elections," O'Connor said recently. "It endangers the public's faith in the justice system. If courts are going to stay impartial, leaders in every state need to get moving on reforms."

Former Colorado Supreme Court Justice Rebecca Love Kourlis, an advocate for ending partisan election of judges, said the case may get "people to pay attention to the problems partisan fundraising creates." Kourlis is executive director of the Institute for the Advancement of the American Legal System at the University of Denver, which provided the figures on spending in judicial elections.

The Supreme Court case stems from a jury verdict in 2002 that concluded Richmond, Va.-based Massey hijacked a coal supply contract from Harman, plunging both it and Caperton into bankruptcy.

Massey contended Harman filed for bankruptcy because of mounting losses at a mining facility and other problems that had nothing to do with Massey.

The case is Caperton v. Massey, 08-22.



Voters' word may not be last in Minn. Senate race
Headline News | 2008/11/06 22:07
One Senate candidate says the voters have spoken. The other says the electorate still needs to be heard.

In the end, experts say, it could be the courts or even the Senate that speaks the loudest on Minnesota's unsettled Senate race.

While the race is headed for an automatic recount, Republican Sen. Norm Coleman and Democratic challenger Al Franken have other options to alter the outcome.

The recount is due to start once results are made official Nov. 18, and it could take weeks. Coleman clung to a 342-vote lead, out of nearly 2.9 million votes cast, as election officials around the state double-checked their reports.

After a recount, the candidates or any eligible voter can head to court to challenge how the election was conducted or the votes were tallied. The Minnesota law spelling out the contest raises the possibility of Senate involvement.

"I don't think there is any possibility it will be simply a recount," said Hamline University law professor Joseph Daly. "It is destined for the courthouse and ultimately it is destined for the United States Senate based on this law. There's too much at stake. There's too much vitriol."

Minnesota's race is one of three up in the air nationwide. Races in Georgia and Alaska are also unresolved. All three involve Republican incumbents in a year that has seen Democrats gain five seats already.

Franken went on Minnesota Public Radio to explain why he won't waive the recount, as Coleman said he would do if he was in the same position.

"This is the closest race in Minnesota history, the closest Senate race and the closest race anywhere in the country. This is just part of the process to make sure every vote is counted," Franken said, adding, "Candidates don't get to decide when an election's over — voters do."

Coleman laid low Thursday.

In percentage terms, Minnesota's race will go down as the closest Senate election prior to a recount. In 1974, a New Hampshire race came down to 355 votes out of 200,000 cast.

The loser in that race, the Democratic candidate, overtook the Election Day victor by 10 votes in a recount. But more maneuvering and court challenges overturned that result, and the state's Republican governor awarded the election certificate to his party's nominee.

The case ultimately wound up before the Senate, where Democrats held a large majority. But a standoff dragged on until August, when the Senate voted to declare the seat open. A special election was held the next month, and record-breaking turnout helped Democrat John Durkin prevail.



Court: Payday lending law violated constitution
Top Legal News | 2008/11/05 22:07
A 1999 state law allowing so-called payday lenders to charge high fees for short-term loans violates the state constitution, the Arkansas Supreme Court ruled Thursday.

In a 6-0 decision, the court said the fees permitted under the 1999 Check Cashers Act were really triple-digit interest rates. The state constitution limits interest rates on loans to 17 percent.

"Because that fee is in reality an amount owed to the lender in return for the use of borrowed money, we must conclude that the fees authorized clearly constitute interest," Justice Paul Danielson wrote.

Through a payday loan in Arkansas, a customer writing a check for $400, for example, typically would receive $350. The lender would keep the check for about two weeks before cashing it.

The customer could buy back the check for $350 during that two-week period, but otherwise would pay the full $400 when the company cashed his check. The $50 charge on a $350 loan for 14 days equates to 371 percent, well above Arkansas' usury limit.

Attorney Todd Turner, who represented the plaintiffs who challenged the Check Cashers Act, said the ruling means it will be impossible for payday lenders to operate in the state.

"It's great for all the Arkansas residents who have been paying 600 percent for these loans," Turner said.

Tom Hardin, attorney for the Arkansas Financial Services Association that sought to preserve the law, did not immediately return a call seeking comment.

Even before Thursday's ruling, the number of payday lenders in the state has dwindled in response to threats of lawsuits from Attorney General Dustin McDaniel. An advocacy group said in a report last month that the number of payday lenders operating in the state has dropped from 237 in March to just 33.

In its 6-0 decision, the court overturned a Pulaski County judge who last year ruled that the 1999 act was constitutional.



Alaska Personal Injury Law Group Attorney Selected For The "Best Lawyers In America" 2009 Listing
Firm News/Alaska | 2008/11/05 19:44
Richard E. Vollertsen of the Alaska Personal Injury Law Group has been selected for inclusion in the "Best Lawyers In America" 2009 publication. He is now in a distinguished group of attorneys listed in the publication for over 10 years. Selection to the "Best Lawyers In America" listing is based on exhaustive and rigorous peer-review evaluations by the top attorneys in the country.

Published by Richard E. Vollertsen


Supreme Court wrestles with TV profanity case
Legal Watch | 2008/11/04 22:07
The Supreme Court spent an hour on Tuesday talking about dirty words on television without once using any or making plain how it would decide whether the government could ban them.

The dispute between the broadcast networks and the Federal Communications Commission is the court's first major broadcast indecency case in 30 years.

At issue is the FCC's policy, adopted in 2004, that even a one-time use of profanity on live television is indecent because some words are so offensive that they always evoke sexual or excretory images. So-called fleeting expletives were not treated as indecent before then.

The words in question begin with the letters "F" and "S." The Associated Press typically does not use them.

Chief Justice John Roberts, the only justice with young children at home, suggested that the commission's policy is reasonable. The use of either word, Roberts said, "is associated with sexual or excretory activity. That's what gives it its force."

Justice John Paul Stevens, who appeared skeptical of the policy, doubted that the f-word always conveys a sexual image.



Alaska Sen. Stevens can still vote, despite felony
Headline News | 2008/10/31 02:43
GOP Sen. Ted Stevens' felony conviction won't block him from casting a vote for himself in Tuesday's election.

Stevens was convicted Monday on seven counts of trying to hide more than $250,000 in free home renovations and other gifts that he received from a wealthy oil contractor. Alaska law says "a person convicted of a crime that constitutes a felony involving moral turpitude under state or federal law may not vote in a state, federal, or municipal election from the date of the conviction through the date of the unconditional discharge of the person."

But state legal officials say that since Stevens has not been sentenced yet, he is eligible to vote in the general election, said Gail Fenumiai, director of the Alaska Division of Elections.

Stevens won't be sentenced until early next year. He faces a maximum 35 years in prison, but is likely to get far less, if any, prison time. If re-elected, he also could face an expulsion vote in the Senate, or senators could recommend a lesser sanction.

The 84-year-old senator, who has represented Alaska in the Senate since 1968, is in a tight race with Democratic challenger Mark Begich, the mayor of Anchorage.

Several politicians, including GOP presidential candidate John McCain and his running mate Alaska Gov. Sarah Palin, have called on Stevens to resign. But the senator has said he plans to fight his conviction and for re-election.



Alinghi, rivals call on BMW Oracle to drop lawsuit
Top Legal News | 2008/10/31 02:41
All 11 teams challenging for the next America's Cup have called on American syndicate BMW Oracle Racing to drop its legal fight with cup holder Alinghi.

The request came at a meeting of Cup contenders Thursday called by Alinghi at its home yacht club in Geneva.

Preparations for the 33rd America's Cup have been stalled for more than a year by legal problems.

The BMW Oracle team based in San Francisco believes Alinghi has acted unfairly in the way it has drawn up rules for the next cup races.

The team is waiting on an appeal ruling from a New York court.

Swiss-owned Alinghi has invited teams from across the world to help it plan for an America's Cup in 2010. On Thursday they united to ask BMW Oracle to join them.



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