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W.Va. SC candidate proposes changes to judicial recusal rules

By Chris Dickerson | Mar 29, 2012


CHARLESTON, W.Va. (Legal Newsline) - One West Virginia Supreme Court candidate has introduced a proposal to change the rules of recusal for sitting Justices.

Tish Chafin, a Democrat, announced her Balanced Court Initiative on Wednesday.

"Since it was a West Virginia case that brought national attention to the recusal issue, I believe that our State Supreme Court should adopt recusal reforms to ensure that its fairness and impartiality are always above reproach," Chafin said.

She is referring to 2009 when the United States Supreme Court ruled that Justice Brent Benjamin's failure to recuse himself from the Caperton vs. Massey case created "a serious, objective risk of actual bias."

Under current state Supreme Court recusal rules, the decision on whether to recuse is left solely the challenged justice.

"My initiative proposes two changes to our state's current recusal rule; the review of recusal motions by impartial judges and publicizing written decisions for recusal motions," Chafin said.

Under her proposal, in cases where a justice declines to recuse, the rules would provide for an expedited de novo review of the motion by members of the Court. Chafin proposes allowing a senior judge or justice to be appointed to the court, to ensure quorum, to hear the recusal motion.

Chafin proposes that, in addition to review by the full court, written decisions should be required in all recusal motions and those decisions should be published and made publically available.

"By adopting my Balanced Court Initiative, the West Virginia Supreme Court would not only help increase public confidence in the judiciary, but would also emerge as a national leader in reforms that protect the integrity of our court system," Chafin said.

The Caperton-Massey saga began in 1998 when Harman Mining President Hugh Caperton sued A.T. Massey Coal alleging Massey canceled a contract, resulting in the company going out of business. In 2002, a Boone Circuit Court jury ruled for Caperton and awarded him $50 million.

Massey appealed to the state Supreme Court. While it was awaiting hearing, former Massey CEO Don Blankenship created a non-profit called "And for the Sake of the Kids" and contributed more than $3 million to help oust then-Justice Warren McGraw from the bench. McGraw was running against Benjamin.

Benjamin defeated McGraw. In 2007 when the case came before the state Supreme Court, Caperton asked for Benjamin to recuse himself because of Blankenship's contributions during the campaign. Benjamin declined and was part of the 3-2 majority that overturned the $50 million Boone County verdict.

Benjamin said he was not biased and that because there was no direct financial or other connection between him and Blankenship, there was no obligation for him to recuse himself

At the same time, Blankenship asked former Justice Larry Starcher to recuse himself because comments Starcher had made about Blankenship. Starcher also initially refused to recuse himself.

Caperton then was granted a requested rehearing of the case. Then, former Justice Spike Maynard recused himself after photos of him vacationing with Blankenship, a lifelong friend, on the French Riviera.

Maynard lost his re-election bid in 2008, and Starcher - who eventually did recuse himself from the case -- did not seek re-election that same year.

In April 2008, the state Supreme Court again ruled in favor of Massey by a 3-2 vote.

After the U.S. Supreme Court sent the case back to the state Supreme Court, it was heard for the third time by the Justices. Benjamin did recuse himself after the U.S. Supreme Court ruling. With Maynard and Starcher no longer on the bench and Justice Joseph Albright taking a leave of absence for esophageal cancer, Justice Robin Davis was the only Justice on the bench who had heard the case before.

This time, the Court ruled 4-1 in favor of Massey, saying Caperton should have pursued the claim in Virginia based on a clause in the contract.

To read Chafin's full initiative, visit

Chafin is one of six Democratic candidates seeking two spots in this spring's primary. Joining her are current Justice Davis, circuit judges J.D. Beane and Jim Rowe, current Supreme Court law clerk Louis Palmer and New Martinsville attorney H. John "Buck" Rogers.

Circuit Judge John Yoder and current state Supreme Court law clerk Allen Loughry are the Republicans running.

The primary election is May 8, and the general election is Nov. 6.

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