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JUSTICE ORDERED TO STEP ASIDE, BENJAMIN CAN'T HEAR MASSEY CASE, COURT RULES


Publication: THE CHARLESTON GAZETTE
Published: Tuesday, June 09, 2009
Page: 1A
Byline: PAUL J. NYDEN

The U.S. Supreme Court said Monday that West Virginia Supreme Court Justice Brent Benjamin should have stepped aside from a case involving the man who spent more than $3 million to put Benjamin on the court.


In a 5-4 decision, the court ruled that Benjamin violated constitutional due process rights when he refused, on two different occasions, to step down from hearing Massey Energy's appeal of a multimillion-dollar Boone County jury verdict.


Benjamin cast deciding votes in two 3-2 decisions, in November 2007 and April 2008, to overturn the verdict against Massey and in favor of Hugh Caperton and his company Harman Mining. With interest, the verdict is now worth more than $82 million.


The U.S. Supreme Court reversed those decisions and sent the case back to the West Virginia Supreme Court "for further proceedings not inconsistent with this opinion." The justices said the case should be reheard after Benjamin recuses himself.


This is the first time the high court has ruled that judges elected to state courts can be required to step down from hearing cases if one party made major contributions to their election campaigns.


In 2004, Benjamin was elected to a 12-year term on the West Virginia Supreme Court, defeating incumbent Justice Warren McGraw.


Don Blankenship, president and CEO of Massey Energy, contributed more than $3 million of his personal money to help Benjamin defeat McGraw. About $2.5 million of that went to And For The Sake Of The Kids, a group created to air negative campaign ads against McGraw.


At the time, Massey had already lost the case against Harman in Boone Circuit Court, and an appeal to the state Supreme Court was the next step.


U.S. Supreme Court Justice Anthony M. Kennedy wrote Monday's majority opinion, stating, "We conclude that Blankenship's campaign efforts had a significant and disproportionate influence in placing Justice Benjamin on the case.


Kennedy noted, "Blankenship contributed some $3 million to unseat the incumbent and replace him with Benjamin. His contributions eclipsed the total amount spent by all other Benjamin supporters and exceeded by 300 percent the amount spent by Benjamin's campaign committee."


In the dissenting opinion, Chief Justice John J. Roberts wrote, "The standard the majority articulates - 'probability of bias' - fails to provide clear, workable guidance for future cases. ...


"How much money is too much money? What level of contribution or expenditure gives rise to a 'probability of bias'?" Roberts asked in his opinion.


Joining Kennedy in the 5-4 majority were Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. Joining Roberts in the dissent were Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.


Benjamin, who said he voted against Massey in 81 percent of its appeals, said in a statement on Monday, "I am confident that there will be a lot of posturing and politicizing about this decision from all sides, as there has been with so many aspects of this case.


"Such a response would be counter to the philosophy of removing politics from the court, which all fair-minded people share. I would hope instead that the decision be given a fair and sober reading, and that it be respected as all decisions of the United States Supreme Court should be."


State Supreme Court spokeswoman Jennifer Bundy said repeatedly in answer to questions, "The West Virginia Supreme Court will follow the United States Supreme Court mandate." When asked other questions, Bundy hung up.


The lawsuit started over Massey's takeover of a 10-year coal supply contract Harman signed with Wellmore Coal to supply metallurgical coal to LTV Steel in Pittsburgh. The August 1997 takeover came soon after Massey bought United Coal, Wellmore's parent company.


Blankenship shifted that contract to Massey's mines in Boone County, which were all nonunion. Harman operated under a United Mine Workers contract.


Shane Harvey, Massey vice president and general counsel, stated in a news release, "While we are disappointed in the outcome of the [Supreme] Court's close vote, our outlook about the ultimate resolution of this legal matter remains positive."


Caperton called Monday's decision great not just for him, but for the miners, small businesses and others who were hurt when his company went out of business.


"We are excited for all of them. We are looking forward to going back and hearing from the West Virginia Supreme Court. We are waiting to see what will happen," Caperton said.


He added, "This decision will certainly alter the way the recusal of judges is viewed across the country."


That worries some critics of Monday's decision, who predict it will encourage thousands of new appeals in courts across the country. Including West Virginia, 39 states elect their judges in political campaigns.


Kennedy's opinion noted former state Supreme Court justice Elliott "Spike" Maynard recused himself in January 2008, after photos surfaced showing him "vacationing with Blankenship in the French Riviera while the case was pending."


Kennedy stated Benjamin should also have recused himself.


"Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when - without the consent of other parties - a man chooses the judge in his own cause. And applying this principle to the judicial election process, there was here a serious, objective risk of actual bias that required Justice Benjamin's recusal."


Kennedy also noted, "Not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge's recusal, but this is an exceptional case."


Former U.S. solicitor general Theodore B. Olson argued Caperton's case before the U.S. Supreme Court on March 3. Caperton was also represented by Bruce Stanley, Dave Fawcett and Rob Berthold.


"In the end, the appearance of justice is paramount if people are to believe in the legal institutions which bind America," Stanley said. "It's unfortunate that West Virginia, my home state which I love dearly, had to become the example for such an important lesson."


Reach Paul J. Nyden at pjnyden@wvgazette.com


or 304-348-5164


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