CHARLESTON – To Justice Brent Benjamin of the West Virginia Supreme Court of Appeals, Justice Larry Starcher's dissent from a decision in favor of Massey Coal owner Don Blankenship doesn't count as a genuine dissent at all.
"It is difficult to respond to my colleague Justice Starcher's dissenting opinion with legal arguments," Benjamin wrote in a Dec. 20 opinion, "since Justice Starcher identifies no legal support for his dissent.
"... emotion-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 concurred in a Nov. 21 decision overturning Boone County jurors who awarded $60 million to former mine owner Hugh Caperton.
The Court held that Caperton could not seek damages in West Virginia because he had already obtained judgment in a Virginia court on similar claims.
Starcher dissented, branding the decision as "horse puckey."
"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," Starcher wrote.
"There is an important difference between a thoughtful, well-reasoned separate opinion and one which is grounded in the political manipulation of legal doctrine," he wrote. "Judges who use their opinions simply as sensationalistic bombast by which to convey partisan agendas or who pander to emotion rather than legal reason do a disservice to the rule of law and to the institution they serve."
Benjamin criticized Justice Joseph Albright's dissent as well as Starcher's dissent, though he did not accuse Albright of personal motives.
"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."
Benjamin was elected the Supreme Court in 2004 when he defeated former Justice Warren McGraw in the general election. A group called And For The Sake Of The Kids, backed by Blankenship, campaigned heavily for Benjamin.