This Op-Ed originally provided by The Charleston Gazette

February 22, 2008

Justice refuses to disqualify himself from Massey case

Benjamin says 'innuendo' not basis for recusal

By Tom Searls
Staff writer

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 justice.

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 court eventually.

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 Virginia.

To contact staff writer Tom Searls, use e-mail or call 348-5198.