West Virginia Chief Justice Steps Away From Case

By Adam Liptak
The New York Times

January 18, 2008

Chief Justice Elliott E. Maynard of the West Virginia Supreme Court disqualified himself on Friday from further participation in a case involving a powerful coal executive after photographs of two men meeting in Monte Carlo in 2006 were filed in court this week.

“I have no doubt in my own mind and firmly believe I have been and would be fair and impartial in this case,” Chief Justice Maynard wrote in a statement. “The mere appearance of impropriety, regardless of whether it is supported by fact, can compromise the public confidence in the courts. For that reason — and that reason alone — I will recuse myself.”

It is not clear, though, what follows from the disqualification. Chief Justice Maynard was in the 3-to-2 majority in a November decision that threw out a $50 million jury verdict against affiliates of the executive’s company, Massey Energy. With interest, the award is worth more than $70 million.

Chief Justice Maynard did not say that his disqualification was retroactive or that he was withdrawing his vote.

A motion for reconsideration of the court’s November decision is set to be discussed by the remaining justices on Thursday. The upshot could be a 2-to-2 tie on the reconsideration motion, effectively upholding the decision in favor of Massey.

But the justices have other options as well. They could bring a retired judge or one from a lower court to hear the motion. They could set the entire appeal down for reargument, with or without a substitute justice. Or they could strike the chief justice’s original vote and treat the resulting 2-to-2 tie as an affirmation of the original judgment.

On Thursday, several plaintiffs in the case — mining companies that say they were driven out of business by Massey — filed a separate motion seeking the disqualification of a second justice in the original majority, Justice Brent D. Benjamin. Justice Benjamin, who had no prior judicial experience, was elected to the court in 2004 with the help of more than $3 million in advertisements and other support from Don L. Blankenship, Massey’s chief executive officer who was Chief Justice Maynard’s dining companion in Monte Carlo.

Justice Benjamin refused to disqualify himself from the case in response to an earlier motion in the case. He did not immediately respond to a message seeking comment Friday.

David B. Fawcett, a lawyer for the plaintiffs with Buchanan Ingersoll & Rooney in Pittsburgh, said that Chief Justice Maynard’s decision to disqualify himself was “a step in the right direction.”

“It’s unfortunate,” Mr. Fawcett said, “that it took so long for the justice to disclose his very extensive dealings with Don Blankenship.”