Massey foe wants U.S. Supreme Court to put W. Va. Justice off case

By John O'Brien | Jul 28, 2008

Brent Benjamin

WASHINGTON (Legal Newsline)-- The extent of the influence of Massey Energy CEO Don Blankenship's money soon may be determined by the U.S. Supreme Court.

The owner of a bankrupt coal company, Hugh Caperton, says the High Court should decide if state Supreme Court Justice Brent Benjamin should have stayed on the bench when Massey's appeal of a $50 million verdict in favor of Caperton's company proved successful.

Caperton's petition, recently obtained by The West Virginia Record, asks the Justices to answer a question: If Benjamin's refusal to recuse himself violated Harman Mining's 14th Amendment right to due process.

"This Court's review of Justice Benjamin's insistence on participating in this case is warranted to provide authoritative guidance to the lower courts regarding the circumstances in which due process requires recusal of a judge who has benefited from a litigant's substantial campaign contributions and to restore public confidence in the judicial systems of the thirty-nine States that elect their judges," Caperton's attorneys wrote in the petition, filed July 2.

Blankenship spent more than $3 million promoting Benjamin in his 2004 race against former Justice Warren McGraw, brother of state Attorney General Darrell McGraw, through an organization called "And For the Sake of the Kids."

A Boone County jury awarded $50 million to 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. The majority reasoned that the disputed contract contained a stipulation that any disagreements be filed in a county in Virginia, where Caperton filed an additional suit against Massey.

Soon after the state Supreme Court's decision, photographs surfaced of Justice Spike 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.

Still, the Justices voted unanimously to rehear Caperton's case. After Maynard voluntarily recused himself from all Massey cases, Caperton demanded Benjamin also step down.

Benjamin refused, arguing that stepping down from a case involving a campaign supporter would start a negative trend.

In Maynard's absence, Benjamin became the acting Chief Justice for the case and appointed the replacements for Maynard and Justice Larry Starcher.

Starcher had called for an investigation into the Maynard-Blankenship friendship and had dissented sharply in the November decision. Court officials said they do not have the power to conduct such an investigation.

On Feb. 19, Starcher recused himself from the case, which ballooned to $76 million with interest, and urged Benjamin to do the same.

Starcher publicly has called Blankenship "stupid" and "a clown," leading to a lawsuit filed by Massey against the Supreme Court with the goal of forcing Starcher to disqualify himself from all Massey cases.

"As a judge I am limited in my public comments, but I do have a constitutional right -- and, in fact, a duty -- to speak out on matters affecting the administration of justice," Starcher wrote. "And let me be clear about this: I believe Mr. Blankenship's conduct does have an effect on the administration of justice, in that it has become a pernicious and evil influence on that administration."

Benjamin filed a brief refusing to recuse himself.

"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."

Caperton submitted another motion to disqualify Benjamin, complete with poll numbers. Benjamin would not.

The case was reheard, and again a 3-2 vote favored Massey.

"Because of the substantial risk of actual bias created by Mr. Blankenship's extraordinary level of financial support for Justice Benjamin's campaign (which was provided to Justice Benjamin while this case was heading on appeal to the West Virginia Supreme Court of Appeals), the Constitution required Justice Benjamin to recuse himself from Massey's appeal," the petition says.

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