Justice's relationship with CEO questioned again, this time with photos

Chris Dickerson Jan. 14, 2008, 8:10pm



CHARLESTON - The owner of a now-bankrupt coal company again has questioned the relationship between West Virginia Supreme Court Chief Justice Spike Maynard and Massey Energy CEO Don Blankenship.

On Monday, Hugh Caperton, owner of Harman Mining Corp., filed an amended version of the motion he filed last week asking that Maynard be disqualified from a recent $76 million case between the companies. On Nov. 20, the Supreme Court ruled in favor of Massey in its appeal.

This time, his motion includes nearly three dozen photographs "which depict Chief Justice Maynard and Mr. Blankenship vacationing together in the Kingdom of Monaca during the time period of July 3-5, 2006."

The earlier motion said Caperton had learned Maynard and Blankenship had been seen dining together Nov. 8 in Logan, which was "less than three weeks before this Court issued it majority opinion, in which Justice Maynard joined, overturning the judgment against A.T. Massey Coal Comp ...," the original motion said.

"While Caperton has been unable to independently verify such a dinner meeting, surely Justice Maynard can do so, and it is incumbent upon him, in order for the public to maintain its confidence in the appearance of the impartiality of this state's highest legal tribunal, of which Justice Maynard will be serving as the Chief Justice, to offer full and complete details of the nature of his personal relationship with Mr. Blankenship, as well as the nature of the discussions had by them at this or any other meeting during the pendency of this matter before the Court."

The amended motion includes 24 photographs, and notes that 10 other photos show Maynard and Blankenship with two females "apparently traveling with them as companions" that were filed under seal in the event the women become witnesses "to this spectacle."

"By the time of this trip to the Kingdom of Monaco, this Honorable Court had already given considerable attention to this case, having ruled upon numerous petitions and motions, and was in the process of finalizing the record for purposes of entertaining Massey's Motion for Appeal," the amended motion says. "In fact, approximately two months prior to this trip, Massey moved for the disqualification of Justice (Larry) Starcher, based on his alleged personal bias, in the companion case of State of West Virginia ex. rel. A.T. Massey Coal Co. Inc. v. the Honorable Jay M. Hoke.

"Moreover, just one month after this trip, Massey Energy filed suit against this Honorable Court. However, at no time during the pendency of any of these lengthy proceedings has Chief Justice Maynard ever made a voluntary disclosure to Mr. Caperton regarding the depth, extent or nature of his personal relationship with Mr. Blankenship."

The amended motion goes on to say the photographs "clearly evidence the appearance of impropriety."

"Indeed, inasmuch as Chief Justice Maynard had decided to intentionally withhold disclosure of this trip, despite the fact that he was duty-bound to do so, these photographs raise over this Honorable Court, the highest and sole appellate court of this state, the specter of corruption or worse," the motion states, also questioning the payment for the "luxurious accommodations" and transportation costs for the trip.

Caperton's amended appeal says Maynard must withdraw his vote in support of the Nov. 20 majority and other related proceedings as well as disqualify himself from other involvement "to maintain any confidence at all of the appearance of the impartiality" of the Court.

"If Chief Justice Maynard fails or refuses to do so, then Mr. Caperton specifically requests that, and submits that it is imcumbent upon, the remaining members of this Court to undertake all necessary steps to remove the impact of the specter of bias, impropriety, and the deprivation of any semblance of fairness that now looms over this case in particular and this Honorable Court in general," the motion states. Maynard's "actions and lack of forthrightness in the face of his express Constitutional and judicial obligations have demeaned the judicial system, defiled justice, and have caused a denial of Mr. Caperton's legal and Constitutional rights."

Harman Mining started a 10-year metallurgical coal supply contract in 1992 with Wellmore Coal, which was eventually purchased, along with parent company United Coal, by Massey in 1997. Massey subsequently broke the contract.

In the contract was a forum-selection clause which required all actions stemming from the agreement to be brought in Buckhanan County, Va. The "(a)greement, in all respects, shall be governed, construed and enforced in accordance with the substantive laws of the Commonwealth of Virginia. All actions brought in connection with this Agreement shall be filed in and decided by the Circuit Court of Buchanan County, Virginia ..." the contract read.

Each member of the Court has played his or her own role in the well-publicized case.

* Justice Robin Davis authored the majority opinion, finding that a Boone County jury had every reason to award such a large judgment to Harman. However, she wrote that because the company had filed a similar case in Virginia, "(N)o matter how sympathetic the facts are, or how egregious the conduct, we simply cannot compromise the law in order to reach a result that clearly appears to be justified.

"(T)he law simply did not permit this case to be filed in West Virginia."

* Justice Joseph Albright wrote a dissenting opinion, calling the majority "flat-out wrong." He said a 1977 Virginia statute allows plaintiffs to file contract claims and tort claims concerning the same matter in separate lawsuits.

"The long and the short of it is that the adjudication of the contract action in Virginia, resulting ultimately in a recovery of about $6 million, did not affect the rights of the plaintiffs in the action sub judice to recover damages in tort in a separate action, under either Virginia or West Virginia law," he wrote.

* Starcher offered his own dissent. His reply the majority opinion was "horse puckey!"

Starcher has long been a critic of Blankenship's, calling him, in public, "stupid" and "a clown." The millions Blankenship spent on Justice Brent Benjamin's campaign against Warren McGraw (brother of Attorney General Darrell McGraw) left Starcher feeling that Blankenship was buying the state Supreme Court.

Blankenship, in turn, sued the Court with the hopes of disqualifying Starcher from any Massey cases.

"Now three members of this Court have ruled that even though it is a fact that Don Blankenship illegally took over $60 million dollars from Hugh Caperton -- he can get away with it scot-free. Talk about crime in the suites!" Starcher wrote.

* In a concurring opinion, Benjamin responded to Starcher's dissent -- sort of. He said it was light on legal matters to which he could reply.

"(E)motion-laden verbiage which could easily be perceived as showing an apparent grudge or personal animosity should never serve as the basis for a separate opinion at the appellate level," Benjamin wrote.

"I believe the dissenting opinions lack logical rigor and legal support," Benjamin wrote. "By baiting emotions, the dissents adopt a 'political voice' rather than a 'judicial voice.'

"Resorts to emotions and sensationalism generally betray the lack of a cogent legal basis for one's criticism."

Starcher, who will not run for re-election this year, had written of his feelings for Blankenship in his dissent -- "(H)e has said he will be 'targeting' me in the next election if I run. Fortunately, the public can see through this kind of transparent foolishness, just as a West Virginia jury saw through his lies in court," he wrote.

"What is sad is that a majority of this Court is telling a West Virginia jury that their work to bring about justice was a complete waste."

Last week, Maynard had no comment, only saying justices respond to recusal requests in writing and that he had not filed a response yet.

"Caperton respectfully submits that if such meetings or communications occurred, a reasonable person, knowing all of the relevant facts, would harbor doubts about Justice Maynard's ability to be impartial and that disqualification is necessary in order to develop and maintain the public's confidence in West Virginia's judiciary," the original motion said.

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