AGs to weigh in on recusal case

John O'Brien Jan. 21, 2009, 4:22pm


CHARLESTON, W.Va. (Legal Newsline) - A group of state attorneys general may soon come to the aid of West Virginia Supreme Court Chief Justice Brent Benjamin.

Alabama Attorney General Troy King is preparing an amicus brief in which he would like colleagues around the nation to join, according to a report in the Charleston Gazette. It is in support of Benjamin's controversial decision not to recuse himself from a $50 million case involving a campaign supporter that is now before the U.S. Supreme Court.

The report says King will finish his brief on Jan. 28, then allow other state attorneys general until Feb. 3 to join. The brief will argue against authorizing a federal rule to decide when state judges and justices should recuse themselves, it adds.

Most of the amicus briefs filed so far have argued that a judge or justice must step down when there is heavy campaign support that may lead to an appearance of impropriety.

King's office did not return a message seeking comment. A spokesperson for the National Association of Attorneys General said she could not help with a request for information.

Massey Energy CEO Don Blankenship spent more than $3 million supporting Benjamin's 2004 campaign through an independent expenditure organization called "For the Sake of the Kids," and Benjamin refused to step down from the case last year.

The case was appealed to the U.S. Supreme Court 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

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