W.Va. Chief Justice Benjamin not receiving much support in Massey recusal issue

John O'Brien Jan. 7, 2009, 4:17pm


WASHINGTON (Legal Newsline) - West Virginia Supreme Court Chief Justice Brent Benjamin's controversial decision not to step down from a $50 million case involving a campaign supporter is drawing input from several interested groups, including his colleagues from other states.

The Conference of Chief Justices recently filed an amicus brief with the U.S. Supreme Court, which is scheduled to hear arguments in the case March 3. The case involves the overturning of a $50 million judgment against Massey Energy.

Massey CEO Don Blankenship spent more than $3 million supporting Benjamin's 2004 campaign, and Benjamin refused to step down from the case. The Conference's brief does not take a side but leans toward disqualification.

"The Conference takes the position that, under certain circumstances, the Constitution may require the disqualification of a judge in a particular matter because of extraordinarily out-of-line campaign support from a source that has a substantial stake in the proceedings," the brief says.

"As judicial election campaigns become costlier and more politicized, public confidence in the fairness and integrity of the nation's elected judges may be imperiled. Disqualification is an increasingly important tool for assuring litigants that they will receive a fair hearing before an impartial tribunal, particularly since First Amendment attacks have been leveled against several provisions of the States' judicial conduct codes."

The Conference is made up of chief justices and chief judges of the highest courts in each state, as well as the District of Columbia. Its board of directors unanimously authorized the brief's filing.

Also, a group of 27 former justices from 19 states has filed an amicus brief. It says Benjamin was wrong to stay on the bench.

"Substantial financial support of a judicial candidate -- whether contributions to the judge's campaign committee or independent expenditures -- can influence a judge's future decisions, both consciously and unconsciously," the brief says.

"Amici believe that the only way to preserve a litigant's due process right to adjudication before an impartial judge is to require that a judge recuse from a case not only when the judge consciously perceives the judge's own partiality, but also when there exists a reasonable appearance of partiality
or impropriety."

Notable among the 27 former justices is former West Virginia Supreme Court Chief Justice Richard Neely, famous for writing, "As long as I am allowed to redistribute wealth from out-of-state companies to in-state plaintiffs, I shall continue to do so. Not only is my sleep enhanced when I give someone else's money away, but so is my job security, because the in-state plaintiffs, their families and their friends will re-elect me."

Other groups in favor of disqualification include the American Bar Association and the National Association of Criminal Defense Lawyers.

"(I)f this Court were to rule for Respondents even on the extraordinary facts of this case, judges and litigants will believe -- and appropriately so -- that judicial electioneering can never implicate the Due Process Clause and require recusal," the criminal defense lawyers' brief says.

"Such a result would leave elected judges and the states in which they sit with no incentive to reconsider or reform their own recusal standards in the light of constitutional concerns and would ultimately jeopardize criminal defendants' right to a fair trial in a fair tribunal."

Businesses like PepsiCo., Lockheed Martin and Wal-Mart also support disqualification, claiming a need to preserve the public's faith in the justice system.

The case has been kept alive by the owner of a bankrupt coal company, Hugh Caperton. A Boone County jury had awarded $50 million to Harman Mining and 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 then-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 Brooke County verdict against it.

He has also recused himself from a high-profile case involving a $381 million verdict against industrial giant DuPont because his former law firm is involved.

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

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