U.S. SC to rule on judicial recusal issue from W.Va.

John O'Brien Nov. 14, 2008, 3:41pm


WASHINGTON (Legal Newsline) - The U.S. Supreme Court will decide if West Virginia Supreme Court Justice Brent Benjamin should have recused himself from the $50 million case of a heavy campaign supporter.

The court will hear arguments in February or March. The owner of a bankrupt coal company, Hugh Caperton, says Benjamin should have disqualified himself when Massey Energy's appeal of a $50 million verdict in favor of Caperton's company proved successful.

Massey CEO Don Blankenship spent more than $3 million promoting Benjamin in his 2004 race against former Justice Warren McGraw, brother of state Attorney General Darrell McGraw, through an organization called "For the Sake of the Kids."

A Boone County jury awarded $50 million to 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, then again by the same vote after Chief Justice Spike Maynard recused himself.

Photographs had surfaced of Maynard and Blankenship on vacation in Monaco. The two, lifelong friends from Mingo County, said they were coincidentally vacationing at the same place at the same time, and Maynard provided documentation to show he paid his own way.

Caperton, throughout, complained that Benjamin should have taken himself off the case. Supreme Court Justice Larry Starcher agreed, recusing himself in the hopes Benjamin would do the same.

"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."

While Benjamin is viewed as a pro-business influence on the Court, he voted against hearing Massey's appeal of a $220 million verdict against it.

The Harman case drew amicus briefs from Public Citizen, the Brennan Center for Justice at New York University School of Law, the Washington Appellate Lawyers Association, the American Bar Association and the Committee for Economic Development.

All those briefs were in favor of review.

Former U.S. Solicitor General Theodore Olson is representing Caperton.

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

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