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W. Va. justice's relationship with CEO called into question

By John O'Brien | Jan 10, 2008



CHARLESTON, W. Va. - Justice Elliott Maynard had been the only member of the West Virginia Supreme Court of Appeals not to stand out in a $76 million case against Massey Energy and its CEO, Don Blankenship.

That was until Monday, when Harman Mining Co., the recent loser of Massey's appeal to the Supreme Court, filed a motion asking that Maynard be disqualified from the case because of his relationship with Blankenship.

Hugh Caperton, the owner of now-bankrupt Harman Mining Corp., says a friendship between the two gives the appearance of impropriety.

"Caperton has been advised that Justice Maynard was observed dining with... Blankenship on or about Nov. 8, 2007, in Logan, W. Va., less than three weeks before this Court issued its majority opinion, in which Justice Maynard joined, overturning the judgment against A.T. Massey Coal Comp...," the motion says.

"While Caperton has been unable to independently verify such a dinner meeting, surely Justice Maynard can do so, and it is incumbent upon him, in order for the public to maintain its confidence in the appearance of the impartiality of this state's highest legal tribunal, of which Justice Maynard will be serving as the Chief Justice, to offer full and complete details of the nature of his personal relationship with Mr. Blankenship, as well as the nature of the discussions had by them at this or any other meeting during the pendency of this matter before the Court."

Harman Mining started a 10-year metallurgical coal supply contract in 1992 with Wellmore Coal, which was eventually purchased, along with parent company United Coal, by Massey in 1997. Massey subsequently broke the contract.

In the contract was a forum-selection clause which required all actions stemming from the agreement to be brought in Buckhanan County, Va. The "(a)greement, in all respects, shall be governed, construed and enforced in accordance with the substantive laws of the Commonwealth of Virginia. All actions brought in connection with this Agreement shall be filed in and decided by the Circuit Court of Buchanan County, Virginia..." the contract read.

Each member of the Court has played his or her own role in the well-publicized case.

-Chief Justice Robin Davis authored the majority opinion, finding that a Boone County jury had every reason to award such a large judgment to Harman. However, she wrote that because the company had filed a similar case in Virginia, "(N)o matter how sympathetic the facts are, or how egregious the conduct, we simply cannot compromise the law in order to reach a result that clearly appears to be justified.

"(T)he law simply did not permit this case to be filed in West Virginia."

-Justice Joseph Albright wrote a dissenting opinion, calling the majority "flat-out wrong." He said a 1977 Virginia statute allows plaintiffs to file contract claims and tort claims concerning the same matter in separate lawsuits.

"The long and the short of it is that the adjudication of the contract action in Virginia, resulting ultimately in a recovery of about $6 million, did not affect the rights of the plaintiffs in the action sub judice to recover damages in tort in a separate action, under either Virginia or West Virginia law," he wrote.

-Justice Larry Starcher offered his own dissent. His reply the majority opinion was "horse puckey!"

Starcher has long been a critic of Blankenship's, calling him, in public, "stupid" and "a clown." The millions Blankenship spent on Justice Brent Benjamin's campaign against Warren McGraw (brother of Attorney General Darrell McGraw) left Starcher feeling that Blankenship was buying the state Supreme Court.

Blankenship, in turn, sued the Court with the hopes of disqualifying Starcher from any Massey cases.

"Now three members of this Court have ruled that even though it is a fact that Don Blankenship illegally took over $60 million dollars from Hugh Caperton -- he can get away with it scot-free. Talk about crime in the suites!" Starcher wrote.

-In a concurring opinion, Benjamin responded to Starcher's dissent -- sort of. He said it was light on legal matters to which he could reply.

"(E)motion-laden verbiage which could easily be perceived as showing an apparent grudge or personal animosity should never serve as the basis for a separate opinion at the appellate level," Benjamin wrote.

"I believe the dissenting opinions lack logical rigor and legal support," Benjamin wrote. "By baiting emotions, the dissents adopt a 'political voice' rather than a 'judicial voice.'

"Resorts to emotions and sensationalism generally betray the lack of a cogent legal basis for one's criticism."

Starcher, who will not run for re-election this year, had written of his feelings for Blankenship in his dissent -- "(H)e has said he will be 'targeting' me in the next election if I run. Fortunately, the public can see through this kind of transparent foolishness, just as a West Virginia jury saw through his lies in court," he wrote.

"What is sad is that a majority of this Court is telling a West Virginia jury that their work to bring about justice was a complete waste."

Maynard had avoided any attention in the six weeks since the Court's decision. He had no comment, only saying that justices respond to recusal requests in writing and that he had not filed a response yet.

"Caperton respectfully submits that if such meetings or communications occurred, a reasonable person, knowing all of the relevant facts, would harbor doubts about Justice Maynard's ability to be impartial and that disqualification is necessary in order to develop and maintain the public's confidence in West Virginia's judiciary," the motion says.

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