Massey request to file extra brief shot down by U.S. SC

John O'Brien Apr. 2, 2009, 10:45am


WASHINGTON (Legal Newsline) - Massey Energy may not file a supplemental brief detailing West Virginia Chief Justice Brent Benjamin's voting record in its cases, the U.S. Supreme Court decided Friday.

Massey wanted to make the information part of the record in a case brought against it by now-bankrupt coal company Harman Mining. Harman claims Massey drove it out of business and won a $50 million verdict in Boone County.

That verdict was later overturned by the state Supreme Court. Harman appealed to the U.S. Supreme Court, claiming Benjamin should have recused himself because of the campaign support he received from Massey CEO Don Blankenship in 2004.

A news release put out by West Virginia's Supreme Court said Benjamin has voted against Massey 81.6 percent of the time. Benjamin's votes, according to the court, have cost the coal company about $317 million.

Massey's lawyers contend that even if the constitution required a judge who felt a "debt of gratitude" to a litigant to step aside from hearing a case, Benjamin's voting record would exempt him.

The case has drawn attention from all directions, including former Supreme Court justices, current state attorneys general, businesses and the American Bar Association.

Hoping to unseat Justice Warren McGraw in 2004, Blankenship spent more than $3 million in support of Benjamin through an independent expenditure group called "And 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 owner Hugh Caperton in his case against Massey, which he claimed drove him out of business.

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.

Benjamin refused and has insisted that he cannot control spending outside his campaign.

The U.S. Supreme Court heard oral arguments March 3.

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

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