Published: February 22, 2008 12:38 am         

Benjamin won’t withdraw from Massey case

CHARLESTON — Supreme Court Justice Brent Benjamin on Thursday rejected the latest bid seeking his recusal from a case involving Massey Energy Co. over the millions the coal producer’s chief executive spent to help Benjamin get elected in 2004.

Benjamin decided to stay on Massey’s appeal of a $240 million judgment against it in Brooke County that Wheeling-Pittsburgh Steel Corp. and Mountain State Carbon LLC. won in a coal contract dispute.

In turning down the plaintiffs’ request, Benjamin cited his previous refusals to disqualify himself from another pending appeal.

“I would further observe that inaccuracies and innuendo do not serve as a proper basis for seeking the disqualification of a judicial office,” Benjamin wrote in his reply.

The reply singled out the recusal request’s allegations that Benjamin was named chief justice for 2009 even though fellow Justice Joseph Albright argued he was in line for that post. As chief justice-elect, Benjamin has been acting chief in Massey cases following the recusal of this year’s chief justice, Elliott “Spike” Maynard.

Maynard has disqualified himself from at least three Massey-related cases after photos surfaced showing him in Monaco with Don Blankenship, Massey’s president, chairman and CEO, while the coal company had appeals pending.

The anonymously obtained photos sparked a furor over conflict-of-interest issues at West Virginia’s highest court. It also renewed criticism of the Blankenship-bankrolled 2004 campaign that promoted Benjamin, a Republican, while attacking the incumbent Democrat he ended up unseating.

The latest best-seller by John Grisham also features a scenario similar to Blankenship’s hefty election-related spending in 2004.

Grisham has cited that race when asked about the plot of “The Appeal,” which involves a chemical company executive seeking to buy a seat on Mississippi’s Supreme Court to avoid an adverse damage award there.

Blankenship recently told the Charleston Daily Mail that he plans to stay out of the 2008 statehouse and state Supreme Court races.

Wheeling-Pitt and Mountain State Carbon argued that Benjamin sidestepped questions of the appearance of impropriety in his previous denials of recusal requests. They also questioned why Massey has set aside $16 million to cover the judgment, which has grown to $240 million because of post-trial interest.

A lawyer for Wheeling-Pitt declined immediate comment Thursday on Benjamin’s decision.

Benjamin rejected the latest bid after ignoring a plea from fellow Justice Larry Starcher to step aside from Massey’s appeal of a $76.3 million in a Boone County case. Targeted over public comments attacking Massey, Blankenship and the 2004 campaign, Starcher recused himself from that case and urged Benjamin to follow suit.

Benjamin instead selected a circuit judge to replace Starcher in that case, which involves a verdict won by Harman Mining Co. and its president. Benjamin has also appointed judges to sit in for Maynard in both the Harman and Wheeling-Pitt appeals.

Benjamin, Maynard and Justice Robin Davis voted in November to overturn the Boone County verdict against Massey. After the Monaco photos grabbed national headlines and Maynard disqualified himself last month, the high court decided to erase its ruling and rehear that appeal in March.

Benjamin voted to reconsider that case, and has also ruled against Massey in at least three cases since joining the court, records show. Massey had sought millions worth of severance tax refunds in two of those cases.

Court rules require judicial officers to recuse themselves from proceedings to avoid even the appearance of impropriety. But they also give the targeted judicial official the final say.

     

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