This Op-Ed originally provided by
February 22, 2008
Justice refuses to disqualify himself from Massey case
Benjamin says 'innuendo' not basis for recusal
By Tom Searls
State Supreme Court Justice Brent Benjamin refused Thursday to disqualify
himself from another case against Massey Energy Co., even though the company's
chief executive spent about $3.5 million to help get Benjamin elected.
In his reply to a motion by Wheeling-Pittsburgh Steel Corp. and Mountain State
Carbon LLC, Benjamin said he would not step down. A Brooke County jury said this
summer that Massey should pay the two companies $240 million, and Massey has
appealed to the state Supreme Court.
The reply, filed Thursday, includes Benjamin's filings from another case where
he has twice refused to recuse himself. Benjamin referred to his reasoning
there, and added that "inaccuracies and innuendo do not serve as a proper basis
for seeking the disqualification of a judicial officer in West Virginia."
Benjamin said lawyers for Wheeling-Pitt and Mountain State Carbon were incorrect
when they said Justice Joseph Albright was skipped in favor of Benjamin for the
role of chief justice in 2009. That made Benjamin acting chief justice when
Elliott "Spike" Maynard recused himself from the case.
Albright has said he should have been chief justice in 2009 instead of Benjamin.
However, Benjamin ended his reply Thursday by saying, "Justice Albright was not
skipped. The motion is denied."
Maynard recused himself from the Wheeling-Pitt case and the other case where
Benjamin has declined to recuse himself. In that case, a Boone County jury
awarded Harman Mining Co. and its owner, Hugh Caperton, $60 million from Massey.
With interest, the judgment is now more than $76 million.
The state Supreme Court voted last year to overturn that decision. Since then,
lawyers for Harman and Caperton filed photos with the court showing Maynard and
Massey chief executive Don Blankenship on vacation in Europe. Maynard has denied
any wrongdoing, but admitted his impartiality could be questioned.
The Supreme Court will reconsider the appeal in March.
Justice Larry Starcher, whom Massey had asked to recuse himself because of
potentially inflammatory statements he made about Blankenship, has also stepped
aside in the Harman case. Starcher had initially refused to recuse himself also.
As acting chief justice after Maynard recused himself, Benjamin appointed the
judges to hear the Massey-related cases in Maynard's and Starcher's places.
Court rules require justices to recuse themselves whenever their "impartiality
might reasonably be questioned," but leaves the decision to the individual
In asking for Benjamin's recusal, Wheeling-Pitt raised questions about why
Massey had set aside only $16 million to cover the $240 million judgment. It
then cited Blankenship's deposition in which he predicted Massey would win in
Their recusal petition noted Benjamin twice declined requests by Harman to
withdraw from that case. It argued he had sidestepped previous questions about
his impartiality and called on him to disclose any ties to Blankenship. Benjamin
disclosed no such ties in his response filed Thursday.
Author John Grisham has said on national TV that the inspiration for his latest
best seller, "The Appeal," in which a chemical company tries to buy an election
to the state Supreme Court to avoid a $41 million jury verdict, came from West
To contact staff writer Tom Searls, use e-mail or call 348-5198.