Justice wants probe into other Justice's relationship with Massey CEO

Chris Dickerson Jan. 22, 2008, 9:17pm



CHARLESTON, W.Va. - State Supreme Court Justice Larry Starcher reportedly has asked for an independent probe into the relationship between Chief Justice Spike Maynard and Massey Energy CEO Don Blankenship.

According to an Associated Press story, Starcher sent a memo Tuesday to state Supreme Court Administrator Steve Canterbury.

In the memo, Starcher reportedly believes, according to the AP, there are "extremely serious legal and ethical issues" about Maynard's relationship with Blankenship, suggesting more evidence than the pictures showing the pair together in Monaco in 2006.

In November, Maynard was part of a 3-2 majority that overturned a $76.3 million 2002 Boone County judgment, which had been won by Harman Mining Co. and its president, Hugh Caperton. The jury found that Massey sent Harman and Caperton into bankruptcy.

Maynard recused himself Friday, but stressing that he had "no doubt in my own mind and firmly believe I have been and would be fair and impartial in this case."

Harman also had asked that Justice Brent Benjamin remove himself from the case, citing the "unprecedented and massive" amounts of money Blankenship spent on the 2004 Supreme Court race to help elect Benjamin and defeat former Justice Warren McGraw.

Benjamin refused to do so. And as the next in line to be chief Justice, he selected Hampshire Circuit Judge Donald Cookman to replace Maynard in re-hearing the case, which is scheduled for Thursday's docket.

Harman and Caperton also have asked the Supreme Court to reconsider its reversal.

Last week, Maynard dismissed suggestions that he let his friendship with Blankenship influence his opinions.

"The suggestion I have done something improper is nonsense," Maynard said in a statement issued Jan. 15.

That was in response to a motion filed by Caperton the day before. That amended motion included nearly three dozen photographs showing Maynard and Blankenship in Monaco in July 2006.

Harman Mining started a 10-year metallurgical coal supply contract in 1992 with Wellmore Coal, which eventually was 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 Buchanan 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 to 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 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."

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