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U.S. legal groups blast justice in Massey case




CHARLESTON, W.Va.

The American Bar Association and other legal groups believe a West Virginia Supreme Court justice was wrong to hear a $76.3 million case involving a key booster of his 2004 election campaign.

The leading U.S. lawyers’ association and at least four other organizations filed briefs this week, each urging the U.S. Supreme Court to review the state Supreme Court’s reversal of a judgment in that amount against Richmond, Va.-based Massey Energy Co.

The groups fault Justice Brent Benjamin for remaining on the case after Don Blankenship, Massey’s president, chairman and chief executive officer, spent more than $3 million to help him win his seat.

The various “friend of the court” briefs argued that the appearance of bias by a judge undermines public confidence in the courts and may violate the constitutional right to due process in legal proceedings.

“The ABA submits that such an appearance of impropriety may be created where, as in the present case, a judicial officer denies a recusal motion and continues to sit on a case where one of the parties has made significant contributions to the judge’s election campaign,” its lawyers wrote in their brief.

Benjamin twice voted to upend the verdict won against Massey by Harman Mining and its president, Hugh Caperton, in a coal contract dispute. He defended his decision to remain on the case in an opinion last week that concurred with April’s 3-2 reversal.

“It has long been recognized that there is ‘a presumption of honesty and integrity in those serving as adjudicators,'” Benjamin wrote, quoting from past court decisions. “Due process therefore requires recusal only in those rare cases wherein a judge or justice has a ‘direct, personal, substantial (or) pecuniary interest’ in the outcome of the case.”

Joining the ABA in disputing that stance were the Washington Appellate Lawyers Association, the Campaign Legal Center & Reform Institute at New York University’s Brennan Center for Justice, Public Citizen and the Committee on Economic Development.

“Benjamin created an appearance of bias that would diminish the integrity of the judicial process in the eyes of any reasonable person,” the latter group wrote in its brief.

Harman and Caperton filed their U.S. Supreme Court appeal last month. Massey has until September to respond, and a lawyer for the petitioners expects the high court to decide in October whether to hear the case.

“We are obviously pleased that so many distinguished institutions have chosen to speak out about the undue influence of money upon the elected judiciary,” said the lawyer, Bruce Stanley of Pittsburgh.

The pending appeal focuses on Benjamin’s presence in the case, and its lawyers include former U.S. Solicitor General Ted Olson.

“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,” Olson said before last month’s filing. We certainly believe that, in this case, acting Chief Justice Benjamin crossed that line.”

Benjamin had repeatedly rejected calls for his recusal in the case, even after two fellow justices took that route.

Chief Justice Elliott “Spike” Maynard disqualified himself after photos surfaced showing him socializing in Monaco with Blankenship, a longtime friend. Justice Larry Starcher followed suit amid allegations from Massey that he betrayed a bias against the coal producer and its CEO with numerous public and printed comments.

The Monaco photos and Maynard’s recusal preceded the court’s decision to reconsider its November reversal of the Harman verdict. April’s ruling reached the same conclusion, and again by 3-2 with circuit judges appointed by Benjamin as acting chief justice filling in for his recused colleagues.

Echoing both federal court rules and the ABA Model Code cited in that group’s brief, West Virginia requires justices to remove themselves from cases to avoid the appearance of impropriety. But the state rule gives the targeted justice the final say.

Blankenship contributed directly to Benjamin’s campaign, but the bulk of his spending bankrolled independent advertising that touted the Republican challenger and attacked his incumbent Democratic opponent.


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