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Published: Wednesday, August 30, 2006
Page: 5A

For someone who has spent millions of dollars blaming lawsuits and lawyers for what ails West Virginia, Massey Energy Co. chief Don Blankenship has shown a willingness to deploy both against political adversaries and others, court records show.

Though the Massey president, chairman and CEO has styled himself a major foe of "frivolous lawsuits," judges have questioned the merit of at least some of the claims he has filed.

Blankenship, Massey or both have filed more than a half-dozen lawsuits within the last two years. Most recently, Massey sued West Virginia's Supreme Court earlier this month. The U.S. District Court lawsuit challenges the state court's rule governing the recusal of justices from cases.

Blankenship sued another branch of state government in July 2005, when he accused Gov. Joe Manchin in a federal lawsuit of retaliating against him for his high-profile political activities. Blankenship alleges the governor has singled out his coal operations for selective enforcement.

Massey also generated headlines in June when it sued the Boone County stenographer from its 2002 civil trial in a coal contract dispute. That federal lawsuit alleges court reporter Jennifer Meadows botched the trial transcript, impeding the appeal of the $70 million judgment against Massey in the case.

Blankenship did not respond to requests for comment Friday, but a lawyer in some of the cases does not consider the multimillionaire or his company overly litigious.

"I don't see an avalanche of lawsuits," said Robert Luskin, a Washington, D.C., lawyer who represents both Blankenship and Massey. "These lawsuits so far have largely been shown to have merit."

Luskin disagrees that Blankenship suffered a setback in January when U.S. District Judge John T. Copenhaver Jr. barred him from seeking damages against the governor in his official capacity. Luskin said Blankenship only wanted a ruling that Manchin has violated his free speech rights, and a court order forbidding any retaliation.

When filed, the lawsuit requested compensatory damages and "such other relief as may be just and equitable," but also targeted Manchin both as governor and an individual.

Manchin has appealed the January ruling, as it left the rest of Blankenship's lawsuit intact. The 4th U.S. Circuit Court of Appeals is expected to hear the case in October. West Virginia has so far spent $316,414 defending against the lawsuit, according to the state Board of Risk and Insurance Management.

Luskin also questions the importance of what may be Blankenship's biggest legal loss so far. Earlier this year, a judge in Virginia gutted the lawsuit he and Richmond, Va.-based Massey filed last year against The Charleston Gazette, the United Mine Workers of America and others.

Blankenship alleged the state's largest newspaper had defamed him in 2004 with articles regarding the layoff of 250 miners from operations bought by Massey after the bankruptcy of Horizon Natural Resources Co.

The Gazette had published an Associated Press story, later corrected, that said Massey had shut down the mines and laid off the workers. The other defendants had repeated that allegation, the lawsuit said.

"The reason why we didn't sue the AP is because the AP acted responsibly," Luskin said Friday, citing the correction.

The Gazette also printed the AP correction. After twice dismissing the defamation claim, Fairfax County Circuit Judge Leslie Alden barred its refiling in a June 8 order. Alden similarly dismissed the UMW from the case.

Blankenship failed to appeal Alden's ruling to a higher court in Virginia before a July deadline.

"Those are dead," Luskin said of the defamation claims against the newspaper and the union.

But Virginia law has allowed Blankenship and Massey to reserve the right to file a new lawsuit within six months repeating a conspiracy claim against the newspaper and the union from the dismissed case.

And Luskin noted that the judge refused to dismiss the lawsuit's claims against a defunct political action group, West Virginia Consumers for Justice, and labor official Kenny Perdue, its chairman.

The lawsuit contends they falsely alleged Massey helped contaminate West Virginia water. The group has filed for bankruptcy, leaving its part of the case in limbo.

The group had squared off against Blankenship while he spent more than $3 million to help Republican Brent Benjamin defeat incumbent Supreme Court Justice Warren McGraw. Among other allegations against the Democrat, Blankenship accused McGraw of encouraging meritless lawsuits and siding with trial lawyers.

Blankenship also sits on the board of the U.S. Chamber of Commerce, which has pressed for laws limiting lawsuits and jury damage awards. The chamber has frequently singled out West Virginia in its ongoing campaign.

Blankenship also has ties to a group called West Virginia Citizens Against Lawsuit Abuse. His personal lobbyist, Greg Thomas, was formerly director of the group. It targeted McGraw alongside the Blankenship-bankrolled And For The Sake Of The Kids political action group.

This year, Blankenship has vowed to spend millions to unseat dozens of Democratic legislators in November. State Democratic Chairman Nick Casey accused Blankenship on Wednesday of "filing frivolous lawsuits and damaging West Virginia's reputation in order to promote himself."

"Mr. Blankenship appears to be engaging in political campaigning by lawsuit," Casey said in a statement.

Luskin said Casey has wrongly cast each of the Supreme Court's five justices as "victims of Mr. Blankenship's lawsuit hit parade." While that lawsuit alleges an anti-Blankenship bias by Justice Larry Starcher, the court itself is the only defendant.

"It is a suit against the court as an institution," Luskin said. "It is not a suit against any of the Supreme Court justices individually, and does not allege any wrongdoing by any of them individually."

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