WV Supreme Court Justices Face Recusal Requests in Massey Cases

By Jeffrey V. Mehalic
West Virginia Business Litigation

February 22, 2008

Last month, following the recusal of Chief Justice Elliott E. “Spike” Maynard, the Supreme Court of Appeals agreed 5-0 to reconsider its reversal of the $50 million verdict [ http://www.wvbusinesslitigationblog.com/2008/01/articles/appellate-decisions/wv-supreme-court-agrees-to-reconsider-reversal-of-massey-verdict/ ] against A.T. Massey Coal Company, Inc. The appeal will be reargued on March 12. Here are the supplemental briefs filed by Massey [ http://www.wvbusinesslitigationblog.com/Massey%20supplemental%20brief.pdf ], Hugh Caperton [ http://www.wvbusinesslitigationblog.com/Caperton%20supplemental%20brief.pdf ], and the Harman companies [ http://www.wvbusinesslitigationblog.com/Harman%20companies%20supplemental%20brief.pdf ], and the United Mine Workers of America’s supplemental amicus brief .

In addition to Chief Justice Maynard, whose recusal was sought by the plaintiffs, Massey had moved to recuse Justice Larry Starcher, who dissented from the Court’s original ruling in November. Massey’s motion was based on statements made by Justice Starcher, which it alleged demonstrated bias on his part against Massey chairman Don L. Blankenship. Last Friday, Justice Starcher agreed to recuse himself from further participation in the case. Here are the Supreme Court’s press release and Justice Starcher’s opinion [ http://www.wvbusinesslitigationblog.com/Starcher%20recusal.pdf ], and Paul Nyden’s article [ http://www.wvgazette.com/News/200802150839 ] in the Saturday Gazette-Mail.

Justice Starcher also made clear his belief that Justice Brent Benjamin, who last month had rejected the plaintiffs’ request to recuse himself, should still do so in order to protect the integrity of the Court:

I repeat – the pernicious effects of Mr. Blankenship’s bestowal of his personal wealth and friendship have created a cancer in the affairs of this Court. And I have seen that cancer grow and grow, in ways that I may not fully disclose at this time. At this point, I believe that my stepping aside in the instant case might be a step in treating that cancer – but only if others as well rise to the challenge. If they do not, they I shudder to think of the cynicism and disgust that the lawyers, judges, and citizens of this wonderful State will feel about our justice system.

And I reiterate that unless another justice also steps aside in this case, my replacement on the Court will be selected by the justice whose campaign was supported by something close to $4,000,000 from monies that came from one side of the case. Perhaps, a serious read of the United States Supreme Court case, Aetna Insurance Co. v. Lavoie, 475 U.S. 813, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986), is in order before such a decision is made.

I don’t know whether Justice Benjamin read the Aetna decision, but yesterday, he rejected a request that he recuse himself from another appeal involving Massey [ http://www.wvbusinesslitigationblog.com/Benjamin%20recusal.pdf ], and by way of explanation, relied on his refusal last month to recuse himself from the Caperton case. Here is the Associated Press’ story [ http://www.wvgazette.com/latest/200802210462 ] regarding Justice Benjamin’s refusal to recuse himself.

Justice Benjamin’s decision not to recuse himself was made in Wheeling-Pittsburgh Steel Corp., et al. v. Central West Virginia Energy Company, et al., Nos. 080182 and 080183, which are the defendants’ appeals from the jury’s verdict of $220 million [ http://www.wvbusinesslitigationblog.com/2007/07/articles/litigation/jury-awards-wheeling-pitt-219-million-against-massey/ ] . Here are the petitions for appeal filed by CWVEC [ http://www.wvbusinesslitigationblog.com/CWVEC%20Petition%20for%20Appeal(1).pdf ] and Massey [ http://www.wvbusinesslitigationblog.com/Massey%20Petition%20for%20Appeal.pdf ].

In that case, Wheeling Pitt sued Massey and one of its subsidiaries for breach of contract after they refused to deliver a set amount of metallurgical-grade coal to Wheeling-Pitt on a monthly basis. The jury awarded $119.85 million in compensatory damages and $100 million in punitive damages. Based on Chief Justice Maynard's feeling that his partiality could reasonably be questioned due to his friendship with Blankenship, he recused himself last month, which Paul Nyden reported [ http://www.wvgazette.com/News/200801290716 ] in the Charleston Gazette.

Posted at 6:00 AM