Chief Justice Recuses Himself from Massey Case, Plaintiffs Renew Disqualification Motion Against Another Justice

By Jeffrey V. Mehalic
West Virginia Business Litigation

January 18, 2008

Supreme Court of Appeals of West Virginia Chief Justice Elliott E. "Spike" Maynard has recused himself from further participation in Caperton v. A.T. Massey Coal Company, Inc., et al., in which the Supreme Court reversed the plaintiffs' $50 million verdict The plaintiffs have filed motions for reconsideration, which the Court will take up on January 24. Here is the order entered by the Clerk [ http://www.wvbusinesslitigationblog.com/Maynard%20recusal%20order.pdf ] and Chief Justice Maynard's memorandum to the Clerk [ http://www.wvbusinesslitigationblog.com/Maynard%20memorandum.pdf ].

Here is the text of the memorandum:

It is not enough to do Justice--Justice also must satisfy the appearance of Justice. I have decided to voluntarily recuse myself from this case. I will recuse myself despite the fact I have no doubt in my own mind and firmly believe I have been and would be fair and impartial in this case. I know that of a certainty.

The issue, because of the controversy surrounding this case, is no longer an issue of whether I can be fair and impartial. Rather it has now become an issue of public perception and public confidence in the courts. Above all else, I am very concerned about how the public views this court.

Without question, the Judicial Branch of state government should always be held in the highest public confidence and trust. 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 from this case.

The issue of the Chief Justice's friendship with Massey Energy Company chairman Don Blankenship and his continued participation in the case has attracted a lot of attention, as reflected by Adam Liptak's article today in The New York Times [ http://www.nytimes.com/2008/01/18/us/18cnd-judge.html?hp ] and this entry on The Wall Street Journal Law Blog [ http://blogs.wsj.com/law/2008/01/18/thanks-to-wva-case-recusal-week-goes-on/ ]. Here is Associated Press reporter Lawrence Messina's article today [ http://ap.google.com/article/ALeqM5juSZjdR1i2xIc8nWrDrNyRjHFtSQD8U8DNF80 ].

In another development, Harman Mining Development Corporation, Harman Mining Corporation, and Sovereign Coal Sales, Inc. yesterday renewed their motion to disqualify Justice Brent Benjamin from participation in the case. The plaintiffs first made the motion in October 2005, at which time Justice Benjamin declined to recuse himself. The renewed motion focuses on the role played by Blankenship in Justice Benjamin's election in 2004, when "Blankenship invested more than $3 million in direct or indirect support of Justice Benjamin -- more than any person, other than a person seeking his own election, had ever spent to effect the outcome of a state judicial race, certainly in West Virginia and perhaps in the United States." Here is the renewed motion, which had also sought the Chief Justice's disqualification [ http://www.wvbusinesslitigationblog.com/Harman%20motion%20for%20disqualification.pdf ]. As of today, Justice Benjamin has not indicated whether he will recuse himself.

As Adam Liptak noted, Chief Justice Maynard did not indicate whether he was withdrawing his vote or making his disqualification retroactive, as the plaintiffs had requested. Furthermore, when a Supreme Court justice recuses himself or herself, the chief justice appoints the substitute justice. But here, where the chief justice has recused himself, I don't know whether the justice with the most seniority (Robin Davis) or the one next in line for chief justice (Brent Benjamin) makes the appointment. Of course, that issue is complicated by the motion pending against Justice Benjamin.

I think Chief Justice Maynard is going to have to address the remainder of the plaintiffs' motion, i.e., advise whether his recusal is retroactive to the oral argument in September, which would require the parties to start over, or whether he intends his recusal to apply only to the plaintiffs' motions for reconsideration.

These are my posts from earlier this week about the Maynard disqualification issue [ http://www.wvbusinesslitigationblog.com/2008/01/articles/appellate-decisions/plaintiff-seeks-chief-justices-disqualification-in-massey-reconsideration/ ] and the plaintiffs' motions for reconsideration of the Court's decision [ http://www.wvbusinesslitigationblog.com/2008/01/articles/appellate-decisions/plaintiffs-ask-supreme-court-to-reconsider-massey-decision/ ].

Posted at 9:27 PM