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Maynard distances himself from another Massey case

By John O'Brien | Feb 8, 2008





CHARLESTON, W. Va. - West Virginia Supreme Court Chief Justice Spike Maynard has recused himself from a case involving Massey Energy, the third time he has done so since photographs surfaced of he and the company's CEO together in Monaco.

Maynard informed Supreme Court Clerk Rory Perry of his decision Thursday. Facing re-election this year, Maynard has apparently chosen to withdraw from all cases involving friend and Massey CEO Don Blankenship.

"Please be advised that I sua sponte disqualify myself from participating in the above-referenced case pursuant to Canon 3E. (1) of the Code of Judicial Conduct," Maynard wrote to Perry.

The case involved the state's Department of Environmental Protection, the citizens group Coal River Mountain Watch and Goals Coal Co., a subsidiary of Richmond-based Massey.

Last year, Kanawha County Circuit Court Judge Duke Bloom upheld a decision from the state's Surface Mine Board that permitted Goals Coal to construct a coal silo within 300 yards of Marsh Fork Elementary School in Sundial.

The DEP issued a permit despite the proximity to the school because the company's initial prep plant permit was filed before the enactment of a law that would have required the silo be located farther away from the school.

The permit was rescinded a month later, but the court decision reversed that. According to a report in the Charleston Gazette, the DEP did not appeal Bloom's ruling. Instead, Coal River Mountain Watch appealed its rejected argument, which concerns mine permit boundaries.

The report adds that the DEP has filed a brief in support of Massey. Blankenship promised not to build the silo until all environmental concerns could be discussed with Gov. Joe Manchin and officials from Marsh Fork.

The Court has not voted on whether or not to hear the appeal.

Maynard recently provided documentation that his trip to the French Riviera was not paid for by Blankenship, and the two were coincidentally vacationing at the same place at the same time.

On Jan. 29, Maynard recused himself from a case involving Massey Energy and Wheeling-Pittsburgh Steel Corp.

Wheeling-Pitt sought Maynard's disqualification as it prepares to defend a $240 million judgment it won from Massey in a Boone County civil case. Massey had petitioned to appeal the July verdict the previous week, and Wheeling-Pitt sought Maynard's recusal. He stepped aside later the same day.

Harman Mining and President Hugh Caperton won a 2002 civil trial against Massey Energy in Boone County. Harman sought Maynard's recusal before petitioning the court to reconsider its November reversal of the verdict. The vacations in the Riviera came more than a year after Massey announced it was appealing the Boone County verdict.

In a unanimous vote last week, the Court decided to reconsider its ruling in the controversial case.

Hampshire Circuit Judge Donald Cookman took part in the vote, having been appointed to fill the spot left by Blankenship. Arguments will be heard March 12.

Harman Mining won $60 million from Massey Energy in a Boone County jury verdict, but the Court overturned the ruling in November because the disputed coal contract had a forum-selection clause that required any legal action be brought in Virginia.

Blankenship and Maynard were photographed in Monaco. The two claimed they decided to meet up when they found out they were vacationing in the same place. Blankenship also donated millions of dollars to Justice Brent Benjamin's campaign and has sued the Court in an attempt to disqualify Justice Larry Starcher from hearing any Massey cases because he publicly called Blankenship "stupid" and "a clown."

Benjamin and Starcher refused to recuse themselves from the case. Benjamin, Maynard and Justice Robin Davis were the majority in the initial ruling, while Starcher and Justice Joseph Albright dissented.

In the order, Starcher said he would have preferred if the justices would have taken more time to decide on rehearing the case to sort out all the other issues it has created.

"I would have strongly preferred not to vote on the rehearing until we had discussed the matter further," said Starcher, who asked for an investigation into the relationship between Maynard and Blankenship and wrote to Supreme Court administrator Steve Canterbury to make sure the photos would not be lost or destroyed.

"If we had taken time and not decided the rehearing issue on this day, there would be absolutely no injury to any party. This case has been pending for several years, and a few more days or weeks will do no harm."

In fact, interest on the jury award pushed the amount owed to $76 million. Harman owner Hugh Caperton also claims Blankenship and Maynard met for a meal late last year while the case was pending.

"If we had taken time, matters relating to Court's prior decision in this case could be properly considered, including the effect of Justice Maynard's recent recusal," Starcher wrote. "If it was right for Justice Maynard to have recused himself and not voted in this case -- after the pictures filed in a recent motion were publicly revealed and he acknowledged contacts with litigant's CEO while this case was pending -- should his prior vote, while the pictures and contacts were a secret, have any effect at all? This issue remains unresolved."

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