Former Solicitor General: Benjamin bullheaded on recusal issue

John O'Brien May 15, 2008, 5:46pm



CHARLESTON, W. Va. (Legal Newsline) - The center of controversy on the West Virginia Supreme Court may have shifted to Justice Brent Benjamin.

Benjamin's refusal to recuse himself in one of the Court's most discussed cases in recent years will be the subject of a plea to the U.S. Supreme Court, the Charleston Gazette reported Thursday.

Harman Mining Co. says because Massey CEO Don Blankenship, the victor in the Court's decision to overturn a $50 million Boone County verdict that had ballooned to $76 million with interest, spent millions of dollars in the 2004 election to unseat then-Justice Warren McGraw, Benjamin should have disqualified himself.

It was Benjamin who benefited from the more than $3 million spent by Blankenship. He voted in favor of Massey during two votes on the case, and was acting Chief Justice for the second one.

Former U.S. Solicitor General Theodore Olson will represent Harman, the Gazette reported.

"A line needs to be drawn somewhere to prevent a judge from hearing cases involving a person who has made massive campaign contributions to benefit the judge," Olson told the newspaper. "We certainly believe that, in this case, acting Chief Justice Benjamin crossed that line."

All eyes had been on Chief Justice Spike Maynard, photographed with Blankenship on vacation in Monaco while the case was pending.

Maynard finished third among four Democrats in Tuesday's primary election and will not move on to the general election. Fellow Justice Larry Starcher is not seeking re-election.

Publicly, Starcher has called Blankenship "stupid" and "a clown." After November's 3-2 decision to overturn the Harman verdict, the Justices voted to rehear the case without Maynard.

Starcher, whose comments caused Blankenship to sue the Supreme Court in an effort to force his disqualification from all Massey cases, voluntarily recused himself from the second hearing and urged Benjamin to do the same.

Benjamin remained, though, and picked the two substitute judges. A 3-2 vote again resulted.

Starcher said he would not recuse himself from a $240 million verdict against Massey that is being appealed to the Court. Maynard already has.

"I acted in the (Harman owner Hugh) Caperton case because I wanted to help restore public confidence in this Court. But the hoped-for stepping aside by the justice whose election so greatly benefited from Massey's CEO did not occur," Starcher wrote.

"Instead, that justice ended up as the Acting Chief Justice in the Caperton case. He appointed my replacement, and both he and my replacement cast votes for Massey in the rehearing of the Caperton case. As a result, it seems likely that public confidence in the Court's decision in the Caperton case is close to zero."

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