CHARLESTON – Maintaining that he has "no doubt in his own mind" that he could be objective, Chief Justice Spike Maynard recused himself Friday from a headline-grabbing case.
Fellow Justice Brent Benjamin, however, refused to do so.
"It is not enough to do Justice -– Justice also must be satisfy the appearance of Justice," Maynard said in a memo Friday morning to Supreme Court Clerk Rory Perry. "I have decided to voluntarily recuse myself from this case. I will recuse myself despite the fact that 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."
On Thursday, Harman Mining Corp. filed a motion asking Maynard and Benjamin to recuse themselves from the case because of his friendship with Massey Energy CEO Don Blankenship. That follows a motion already filed by Harman President Hugh Caperton.
Later Friday, Benjamin filed his memo.
"It is observed that movants present no new information, objective or otherwise, to support their contentions," Benjamin said, referring to a 2006 request from Harman for his recusal. "It is furthermore noted that this motion was not filed until after the decision contrary to the positions of the movants in this matter was rendered and after the undersigned filed his concurring opinion to that majority opinion."
Harman wanted Maynard and Benjamin to remove themselves from a recent $76 million case between his company and Massey. On Nov. 20, the Supreme Court ruled in favor of Massey in its appeal. Maynard and Benjamin both were part of the 3-2 majority.
In his memo, Maynard said the issue no longer is whether he can be fair and impartial.
"Rather it now has become an issue of public perception and public confidence in the courts," he wrote. "Above all else, I am very concerned about how the public views this court."
Maynard also said the judicial branch of government always should 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," he wrote. "For that reason -– and that reason alone -– I will recuse myself from this case."
Harman also wanted Benjamin to step down from the case, citing the "unprecedented and massive" amounts of money Blankenship spent on the 2004 Supreme Court race to help elect Benjamin and defeat former Justice Warren McGraw.
"Mr. Blankenship invested nearly $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," the motion states. "Justice Benjamin should also disclose the nature of his relationship with Mr. Blankenship, including private meetings, dinners, etc."
In his memo, Benjamin said Harman's recusal request for him focused solely on the 2004 election.
"It contains nothing about this Justice's record on the Court," Benjamin wrote. "There are no allegations that this Justice has or has had any relationship with Mr. Blankenship or any part in this litigation, or that he ever represented Mr. Blankenship or any Massey company in his twenty-plus years of private practice."
Benjamin noted that no other litigants have sought his disqualification in any cases involving Massey, including state Attorney General Darrell McGraw. He also cited a 2005 newspaper article mentioning the state Department of Environmental Protection saw "no grounds" to have him removed from a matter involving Massey.
DEP Secretary Stephanie Timmermeyer "'would not have entertained' the idea of seeking this Justice's disqualification," the memo states.
"There are clearly no grounds here for us to ask a Supreme Court justice elected by the people to step down in this matter," the memo quotes DEP attorney Perry McDaniel from the 2005 Charleston Gazette story.
Benjamin said Harman's "subjective and partisan" recusal request could have extreme circumstances.
He wrote that it "would create a system where there would be almost no limit to recusal motions and popularly-elected courts of this State would be open to 'judge-shopping' under the guise of litigation strategy."
Earlier in the week, Maynard had dismissed suggestions that he let his friendship with Blankenship influence his opinions.
"The suggestion I have done something improper is nonsense," Maynard said in a statement issued Tuesday through the Supreme Court.
That was in response to a motion filed by Caperton the day before. That amended motion included nearly three dozen photographs showing Maynard and Blankenship in Monaco in July 2006. The original motion questioned the relationship between Maynard and Blankenship, alleging the pair recently were seen dining together.
Massey spokesman Jeff Gillenwater said Maynard and Blankenship, both of whom are from Mingo County, have been friends for a long time, but that they were not traveling together in Monaco.
"My understanding is that they were not vacationing together," Gillenwater said Tuesday. "Mr. Blankenship was vacationing in Monte Carlo area, and Justice Maynard was nearby in the Nice area of France. They did meet for some lunches and dinners together."
Blankenship echoed that comment.
Blankenship told The Associated Press that he and Maynard decided to meet in Monaco after learning they would be in the area at the same time.
"I don't know if it's totally a coincidence," Blankenship told the AP. "I know that we didn't travel together, we didn't vacation together. ... It just happens to be more sexy because of the location, I guess."
Caperton's original motion said he learned Maynard and Blankenship had been seen dining together Nov. 8 in Logan, which was "less than three weeks before this Court issued it majority opinion, in which Justice Maynard joined, overturning the judgment" against Massey.
The amended motion includes 24 photographs, and notes that 10 other photos show Maynard and Blankenship with two females "apparently traveling with them as companions" that were filed under seal in the event the women become witnesses "to this spectacle."
"By the time of this trip to the Kingdom of Monaco, this Honorable Court had already given considerable attention to this case, having ruled upon numerous petitions and motions, and was in the process of finalizing the record for purposes of entertaining Massey's Motion for Appeal," the amended motion says. "In fact, approximately two months prior to this trip, Massey moved for the disqualification of Justice (Larry) Starcher, based on his alleged personal bias, in the companion case of State of West Virginia ex. rel. A.T. Massey Coal Co. Inc. v. the Honorable Jay M. Hoke.
"Moreover, just one month after this trip, Massey Energy filed suit against this Honorable Court. However, at no time during the pendency of any of these lengthy proceedings has Chief Justice Maynard ever made a voluntary disclosure to Mr. Caperton regarding the depth, extent or nature of his personal relationship with Mr. Blankenship."
One of Caperton's lawyers, Pittsburgh attorney Bruce Stanley, told members of the media that the photos were sent to him anonymously.
The amended motion says the photographs "clearly evidence the appearance of impropriety."
"Indeed, inasmuch as Chief Justice Maynard had decided to intentionally withhold disclosure of this trip, despite the fact that he was duty-bound to do so, these photographs raise over this Honorable Court, the highest and sole appellate court of this state, the specter of corruption or worse," the motion states, also questioning the payment for the "luxurious accommodations" and transportation costs for the trip.
Caperton's amended appeal says Maynard must withdraw his vote in support of the Nov. 20 majority and other related proceedings as well as disqualify himself from other involvement "to maintain any confidence at all of the appearance of the impartiality" of the Court.
"If Chief Justice Maynard fails or refuses to do so, then Mr. Caperton specifically requests that, and submits that it is imcumbent upon, the remaining members of this Court to undertake all necessary steps to remove the impact of the specter of bias, impropriety, and the deprivation of any semblance of fairness that now looms over this case in particular and this Honorable Court in general," the motion states. Maynard's "actions and lack of forthrightness in the face of his express Constitutional and judicial obligations have demeaned the judicial system, defiled justice, and have caused a denial of Mr. Caperton's legal and Constitutional rights."
Harman Mining started a 10-year metallurgical coal supply contract in 1992 with Wellmore Coal, which eventually was purchased, along with parent company United Coal, by Massey in 1997. Massey subsequently broke the contract.
In the contract was a forum-selection clause which required all actions stemming from the agreement to be brought in Buchanan County, Va. The "(a)greement, in all respects, shall be governed, construed and enforced in accordance with the substantive laws of the Commonwealth of Virginia. All actions brought in connection with this Agreement shall be filed in and decided by the Circuit Court of Buchanan County, Virginia ..." the contract read.
Each member of the Court has played his or her own role in the well-publicized case.
* Justice Robin Davis authored the majority opinion, finding that a Boone County jury had every reason to award such a large judgment to Harman. However, she wrote that because the company had filed a similar case in Virginia, "(N)o matter how sympathetic the facts are, or how egregious the conduct, we simply cannot compromise the law in order to reach a result that clearly appears to be justified.
"(T)he law simply did not permit this case to be filed in West Virginia."
* Justice Joseph Albright wrote a dissenting opinion, calling the majority "flat-out wrong." He said a 1977 Virginia statute allows plaintiffs to file contract claims and tort claims concerning the same matter in separate lawsuits.
"The long and the short of it is that the adjudication of the contract action in Virginia, resulting ultimately in a recovery of about $6 million, did not affect the rights of the plaintiffs in the action sub judice to recover damages in tort in a separate action, under either Virginia or West Virginia law," he wrote.
* Starcher offered his own dissent. His reply the majority opinion was "horse puckey!"
Starcher has long been a critic of Blankenship's, calling him, in public, "stupid" and "a clown." The millions Blankenship spent on Benjamin's campaign against Warren McGraw (brother of Attorney General Darrell McGraw) left Starcher feeling that Blankenship was buying the state Supreme Court.
Blankenship, in turn, sued the Court with the hopes of disqualifying Starcher from any Massey cases.
"Now three members of this Court have ruled that even though it is a fact that Don Blankenship illegally took over $60 million dollars from Hugh Caperton -- he can get away with it scot-free. Talk about crime in the suites!" Starcher wrote.
* In a concurring opinion, Benjamin responded to Starcher's dissent -- sort of. He said it was light on legal matters to which he could reply.
"(E)motion-laden verbiage which could easily be perceived as showing an apparent grudge or personal animosity should never serve as the basis for a separate opinion at the appellate level," Benjamin wrote.
"I believe the dissenting opinions lack logical rigor and legal support," Benjamin wrote. "By baiting emotions, the dissents adopt a 'political voice' rather than a 'judicial voice.'
"Resorts to emotions and sensationalism generally betray the lack of a cogent legal basis for one's criticism."
Starcher, who will not run for re-election this year, had written of his feelings for Blankenship in his dissent -- "(H)e has said he will be 'targeting' me in the next election if I run. Fortunately, the public can see through this kind of transparent foolishness, just as a West Virginia jury saw through his lies in court," he wrote.
"What is sad is that a majority of this Court is telling a West Virginia jury that their work to bring about justice was a complete waste."
Last week, Maynard had no comment, only saying justices respond to recusal requests in writing and that he had not filed a response yet.
"Caperton respectfully submits that if such meetings or communications occurred, a reasonable person, knowing all of the relevant facts, would harbor doubts about Justice Maynard's ability to be impartial and that disqualification is necessary in order to develop and maintain the public's confidence in West Virginia's judiciary," the original motion said.