Benjamin recuses himself from Massey cases

John O'Brien Feb. 2, 2009, 1:52pm


CHARLESTON, W.Va. (Legal Newsline) - While he waits for the U.S. Supreme Court to make a decision on his recusal policy, West Virginia Supreme Court Chief Justice Brent Benjamin is disqualifying himself from any cases involving a major campaign contributor.

Benjamin made the decision Friday in Mountain State Carbon's case against Central West Virginia Energy Company, a subsidiary of Massey Energy. Massey CEO Don Blankenship spent more than $3 million through a political action committee in support of Benjamin's 2004 campaign.

Benjamin wrote that not recusing himself would be "personally and judicially disrespectful" to the U.S. Supreme Court, which will hear arguments in March over Benjamin's controversial decision not to step down from a $50 million Massey case last year.

"Should justice be defined by subjective perceptions and appearances?" Benjamin wrote. "I do not believe so.

"The shifting sands of subjective perceptions and the potential for manipulations of appearances for a system aimed at disqualifications of judges based on 'apparent conflicts' should not, I believe, replace our current system in which justice is based on legal certainty, not political correctness.

"Politics is about perception. Justice is about the rule of law and objective facts."

Though Mountain State Carbon's request for his disqualification was not satisfactorily persuasive, he said, Benjamin voluntarily recused himself because of the pending Caperton matter.

"Appearance-based criteria for judicial disqualification emphasizes the importance of 'public confidence' in the judiciary as its most important value, not judicial independence, the accuracy of justice or stability and predictability in our judicial system," Benjamin wrote.

"Public confidence is a legitimate concern for our judicial system, but not in a vacuum. Concerns within the judicial system must be balanced.

"In the long run, I believe that judicial independence, the accuracy of justice and the stability and predictability in our judicial system are far more important to the public's long-term confidence in our judicial system."

Hoping to unseat then-Justice Warren McGraw in 2004, Blankenship spent more than $3 million in support of Benjamin through an independent expenditure group called "For the Sake of the Kids."

When a $50 million verdict against Massey came before the Court in 2007, Benjamin twice refused to step down.

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 Nov. 2007 with a 3-2 vote, then again by the same vote in April 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.

Most of the amicus briefs filed in the case have been in support of Benjamin's recusal.

In Massey cases, Justice Robin Davis will take over Benjamin's chief justice duties. She has appointed Marion County Circuit Court Judge Fred Fox to take his spot in all Massey cases while Caperton's appeal is pending.

Fox replaced Starcher in the Harman case and voted to overturn the verdict. Davis, too, voted in the majority in that case.

From Legal Newsline: Reach John O'Brien by e-mail at

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