Plaintiffs Hire Former Solicitor General Olson to Pursue SCOTUS Appeal

By Jeffrey V. Mehalic
West Virginia Business Litigation

May 17, 2008

The saga of Caperton v. A. T. Massey Coal Company, Inc. [ http://www.wvbusinesslitigationblog.com/Caperton%20v.%20Massey%20II%20(WL).pdf ] continues, following the Supreme Court of Appeals of West Virginia’s decision to reverse the jury’s verdict of $50 million against Massey [ http://www.wvbusinesslitigationblog.com/2008/04/articles/appellate-decisions/wv-supreme-court-again-reverses-50-million-verdict-against-massey/ ]. Paul J. Nyden reported in yesterday’s Charleston Gazette that Caperton and his company, Harman Mining Corporation, have retained Theodore B. Olson [ http://www.wvgazette.com/News/200805150741 ] of Gibson, Dunn & Crutcher, to represent them in an appeal before the Supreme Court of the United States.

Olson [ http://www.gibsondunn.com/Lawyers/tolson ] served as Solicitor General from 2001 until 2004, but may be best known for arguing Bush v. Gore [ http://www.wvbusinesslitigationblog.com/Bush%20v.%20Gore.pdf ] before the Supreme Court in 2000 on behalf of President Bush.

Olson will present Caperton and Harman’s petition for a writ of certiorari, which will likely focus on the make-up of the Supreme Court of Appeals and argue that Caperton and Harman did not have an impartial tribunal because of the participation of Justice Brent Benjamin, whose election in 2004 benefited from the involvement of Massey Energy Company chairman Don Blankenship.

Here is a quote from Olson in the Gazette article:

“A line needs to be drawn somewhere to prevent a judge from hearing cases involving a person who has made massive campaign contributions to benefit the judge. We certainly believe that, in this case, acting Chief Justice Benjamin crossed that line.”

Justice Benjamin became acting Chief Justice when Chief Justice Elliott E. “Spike” Maynard recused himself [ http://www.wvbusinesslitigationblog.com/2008/01/articles/appellate-decisions/chief-justice-recuses-himself-from-massey-case-plaintiffs-renew-disqualification-motion-against-another-justice/ ] after photographs were released in January showing him with Blankenship in Monte Carlo in the summer of 2006, while Massey’s appeal was pending before the Supreme Court of Appeals.

Although Nyden did not mention any time frame for the presentation of the petition, Rule 13 of the Rules of the Supreme Court of the United States [ http://www.wvbusinesslitigationblog.com/SCOTUS%20rules.pdf ] provides that a petition for a writ of certiorari from a judgment of a state court of last resort must be filed within 90 days after entry of the judgment. The Supreme Court of Appeals’ decision was issued on April 3, which makes the petition due by July 2.

Posted at 10:11 AM