CHARLESTON, W.Va. (Legal Newsline) - The West Virginia Supreme Court decided Sept. 3 that a tie vote that resulted from Chief Justice Brent Benjamin being told he should've recused himself in a case is not enough to affirm a $50 million verdict in a controversial case.

The Court also ordered Massey Energy to post a $55 million bond, representing the verdict awarded Harman Mining Co. by a Boone County jury plus one year of interest in a case over a coal supply contract.

Arguments in the case were heard Tuesday.

"(B)y retroactively imposing a tie vote, (Harman Mining), in a manner contrary to well-accepted principles of appellate procedure, seek once again to constrain this court's discretion to proceed on remand," the order said.

"Plainly stated, this court has not yet reached a final decision in this matter and therefore cannot be equally divided.

The U.S. Supreme Court ruled in June that Chief Justice Brent Benjamin should have recused himself from the case because of campaign support from Massey CEO Don Blankenship.

The case concerns a coal supply contract.

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 the $50 million verdict against Massey came before the Court in 2007, Benjamin twice refused to step down.

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.

Harman owner Hugh Caperton complained throughout 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 insisted that he cannot control spending outside his campaign. The U.S. Supreme Court voted 5-4 that he should've recused himself.

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

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