ABA: W. Va. case has chance to provide landmark ruling

John O'Brien Aug. 6, 2008, 1:00pm



WASHINGTON (Legal Newsline) - West Virginia Supreme Court Justice Brent Benjamin's controversial decision not to recuse himself from the appeal of a supporter should serve as a guideline for future similar issues, the American Bar Association says.

The ABA filed an amicus brief with the U.S. Supreme Court on Monday, urging the High Court to accept now-bankrupt Harman Mining Co.'s appeal in its $76 million case against Richmond-based Massey Energy.

Massey CEO Don Blankenship spent more than $3 million supporting Benjamin's 2004 campaign, and Benjamin voted twice in Massey's favor in the case.

"The ABA submits that such an appearance of impropriety may be created where, as in the present case, a judicial officer denies a recusal motion and continues to sit on a case where one of the parties has made significant contributions to the judge's election campaign," the brief says.

"With the cost of judicial campaigns increasing, these issues are arising throughout the country, and there is need for guidance from the Court as to the boundaries imposed by the Due Process Clause in these circumstances."

A Boone County jury awarded $50 million to Harman owner Hugh Caperton in his case against Massey, a dispute over a broken coal supply contract. However, the state Supreme Court overturned the verdict in November with a 3-2 vote, deciding that a forum-selection clause in the allegedly broken contract required all actions to be brought in a county in Virginia.

Soon after the state Supreme Court's decision, photographs surfaced of Justice Spike Maynard and Blankenship on vacation in Monaco. The two, lifelong friends from Mingo County, said they simply were vacationing at the same place at the same time, and Maynard provided documentation to show he paid his own way.

Still, the Justices voted unanimously to rehear Caperton's case. After Maynard voluntarily recused himself from all Massey cases, Caperton demanded Benjamin also step down.

Benjamin refused, arguing that stepping down from a case involving a campaign supporter would start a negative trend. Massey Energy CEO Don Blankenship spent more than $3 million promoting Benjamin in his 2004 race against former Justice Warren McGraw, brother of Democratic state Attorney General Darrell McGraw, through an organization called And For The Sake Of The Kids.

In Maynard's absence, Benjamin became the acting Chief Justice for the case and appointed the replacements for Maynard and Justice Larry Starcher.

Starcher had stepped down because of past comments critical of Blankenship and hoped his example would persuade Benjamin to do the same.

"Large campaign expenditures have become a virtual prerequisite for election to state judicial office," the ABA wrote. "To meet this demand, judicial candidates increasingly depend on large contributors.

"These elections... involve highly reported, politicized campaigns marked by million-dollar budgets and heated competition. This massive influx of money may pose a threat of judicial impropriety, both actual and apparent."

Benjamin, meanwhile, recently released a concurring opinion in the Harman case, which has ballooned to a worth of $76 million with interest.

"It is an unfortunate truth that judicial officers in West Virginia must stand for office in political elections," Benjamin wrote. "Notwithstanding this political selection method, the public's confidence in our system of justice is necessarily undermined and the stability and predictability of the rule of law is compromised when politics cross the threshold of our Court.

"The most important factors therefore affecting the public's perception of actual justice in this Court necessarily are the actual decisions of this Court, and its members, over time, the professional demeanor of this Court's members, and the quality of the written opinions and orders which we produce in specific cases.

"By baiting emotions, I believe the Dissenting opinion adopts a distinctly 'political voice' rather than a 'judicial voice.' With due respect to my dissenting colleagues, this case does not present a close call on the basis of the rule of law."

From Legal Newsline: Reach John O'Brien by e-mail at john@legalnewsline.com.

More News