Benjamin: Count me in

John O'Brien Feb. 21, 2008, 4:00pm




CHARLESTON, W. Va. - Despite a fellow justice's best efforts, West Virginia Supreme Court Justice Brent Benjamin will not recuse himself from cases involving his biggest campaign supporter.

Benjamin made his decision public Thursday in a pair of briefs explaining his stance. Companies facing Massey Energy in appeals that will be heard by the Court have asked Benjamin to step aside because Massey CEO Don Blankenship donated millions of dollars to his 2004 campaign.

"The motion seeking disqualification comes over three years after the 2004 election and focuses entirely on that election," Benjamin wrote. "It contains nothing about this Justice's record on the Court.

"There are no allegations that this Justice has or has had any relationship with Mr. Blankenship or any party in this litigation, or that he ever represented Mr. Blankenship or any Massey company in his 22-plus years of private practice. Nor is this Justice aware of any basis by which this Justice should disqualify himself."

Justice Larry Starcher, who this week recused himself from one of the two Massey cases at issue, wrote that Blankenship's presence on the Court has become "a cancer." He has called Blankenship "stupid" and "a clown" in the past because he felt he was attempting to buy the Court.

Through a group called "For the Sake of the Kids," Blankenship lobbied heavily against Warren McGraw and for Benjamin in the election. Starcher's recusal brief addressed the issue.

"At this point, I believe that my stepping aside in the instant case might be a step in treating that cancer -- but only if others as well rise to the challenge.

"If they do not, then I shudder to think of the cynicism and disgust that the lawyers, judges and citizens of this wonderful state will feel about our justice system."

In his brief, Benjamin wrote that several state officers, like Attorney General Darrell McGraw, who is Warren's brother, and Department of Environmental Protection Secretary Stephanie Timmermeyer have not asked for Benjamin's recusal in their cases involving Massey.

"Simple conclusory accusations and assumptions are plainly insufficient to support a motion for disqualification," Benjamin said. "To interpret the term 'impartiality might reasonably be questioned' in such a subjective and partisan manner as the movants seem to suggest, particularly after this Justice voted in the majority against their legal positions in this case, would create a system where there would be almost no limit to recusal motions and popularly elected courts of this State would be open to 'judge-shopping' under the guise of litigation strategy."

Benjamin was part of a November 3-2 ruling that overturned a $60 million Boone County verdict for Harman Mining Co. against Massey. With interest, the figure had increased to $76 million, but three of the justices determined that a forum-selection clause in the disputed coal contract required any actions to be brought in a county in Virginia.

Shortly after, Harman owner Hugh Caperton produced photographs of Blankenship and current Chief Justice Spike Maynard together in Monaco. Maynard admitted he is a longtime friend of Blankenship's, claimed the two coincidentally were vacationing at the same place at the same time and provided documentation that showed Massey did not pay for his trip.

Since then, the justices unanimously decided to hear Harman's case again. Maynard has already recused himself from it and was joined by Starcher, who has called for an investigation into the extent of Maynard's and Blankenship's friendship.

Hampshire County Circuit Judge Donald Cookman and Marion Circuit Judge Fred Fox II have been appointed by Benjamin, the acting Chief Justice in the case because of Maynard's recusal, to fill out the Court.

Starcher, who dissented in the original decision, has apparently not yet recused himself from another case involving Massey.

Maynard, however, did recuse himself from Massey's appeal of a $240 million Brooke County verdict in favor of Wheeling-Pittsburgh Steel Corp. and Mountain State Carbon.

Massey has sued the Court in an effort to have Starcher removed from all its cases because of the public comments made by Starcher regarding Blankenship.

"The simple fact of the matter is that the pernicious effects of Mr. Blankenship's bestowal of his personal wealth, political tactics and 'friendship' have created a cancer in the affairs of this court," Starcher wrote.

Benjamin says he can still remain impartial.

"The proper purpose of such a motion (to disqualify a judge) is to preserve, not inhibit, the administration of justice," Benjamin wrote.

"The measure of whether a Justice should or should not recuse himself necessarily is not the bias or prejudice which a litigant may have regarding the Justice. Our judicial system requires more.

"A litigant's subjective believe that a Justice may be more or less favorable to his position is therefore an insufficient basis for disqualification."

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