AG King files brief in W.Va. recusal issue

By John O'Brien | Feb 5, 2009



CHARLESTON, W.Va. (Legal Newsline) - Five more amicus briefs were filed with the U.S. Supreme Court Wednesday in West Virginia's judicial recusal issue, including one by Alabama Attorney General Troy King.

King hoped to rile support from other attorneys general in favor of West Virginia Supreme Court Chief Justice Brent Benjamin's decision not to recuse himself from cases involving a major campaign contributor. Benjamin twice voted for Massey Energy in its appeal of a $50 million verdict against it.

Attorneys general joining King in his brief were Colorado's John Suthers, Lousiana's Buddy Caldwell, Michigan's Mike Cox, Florida's Bill McCollum and Utah's Mark Shurtleff. Delaware Chief Deputy Attorney General Richard Gebelein added his state while Attorney General Beau Biden is serving a one-year tour of duty with the military.

"From amici's perspective, therefore, the question is not whether, in some abstract sense, Justice Benjamin 'should' have disqualified himself," King wrote.

"The question, rather, is whether the Court should fashion an entirely new body of federal constitutional law to govern day-to-day recusal practice in state courts - and, in the process, birth an entirely new species of litigation pleading, the Caperton motion.

"The answer on both counts is no."

Benjamin recently recused himself from all Massey cases while the case is pending.

Massey CEO Don Blankenship spent more than $3 million through a political action committee in support of Benjamin's 2004 campaign.

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.

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.

Most of the amicus briefs filed in the case have been in support of Benjamin's recusal. King, however, focused on the problems that could be created by a federal rule that would regulate state-to-state practices.

"There is no pressing need to constitutionalize state recusal practice," King wrote. "The States are uniquely well-situated to regulate recusal practice in their own courts and have been both vigorous and innovative in doing so."

"Individual cases aside, these manipulations would adversely affect the judicial system as a whole. As we have explained, the merits (or demerits) of the abusive disqualification motion would not always control the targeted judge's recusal decision; oftentimes, the in terrorem effect of being labeled an oath-breaker would cause the judge to step aside unnecessarily.

"By contrast, should the judge stay on the case, the charges of unconstitutional conduct would only diminish public confidence in the judiciary."

Briefs by the Center for Competitive Politics, the James Madison Center for Free Speech, 10 former state Supreme Court justices and two law professors filed the other four briefs. All are in support of Benjamin's decision not to step down.

From Legal Newsline: Reach John O'Brien by e-mail at john@legalnewsline.com.

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Organizations in this Story

Center for Competitive Politics DuPont Virginia Supreme Court

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