CHARLESTON - State Supreme Court Justice Brent Benjamin should not participate in a $240 million case involving his largest campaign supporter, according to the the companies hoping to preserve the verdict.
Wheeling-Pittsburgh Steel Corp. and Mountain State Carbon on Wednesday filed a brief asking for the disqualification of Benjamin, who received millions of dollars from Massey Energy CEO Don Blankenship for his 2004 campaign. Massey is the defendant in the suit.
"The question before this Court, therefore, is not whether Justice Benjamin believes he can be impartial in this case or whether Movants believe he can be impartial in this case," the brief says.
"The question is whether an outside observer, neither judge nor litigant, less inclined to credit a judge's impartiality than the judiciary, but not highly suspicious either, might question Justice Benjamin's ability to hold the balance nice, clear and true in this case involving a corporate defendant who did so much to ensure Justice Benjamin's election.
"The answer to this question is obviously yes."
Chief Justice Spike Maynard already has recused himself from the case, just as he has done two other recent Massey cases after pictures surfaced of he and Blankenship together in Monaco. The two admit to being friends and claim it was a coincidence that they were vacationing at the same time and place.
Maynard has provided documentation for his trip to prove it was not paid for by Blankenship.
Wheeling-Pitt apparently is not applying the same "reasonable observer" argument to Justice Larry Starcher, who has publicly insulted Blankenship in the past. Starcher, upset at the amount of money Blankenship gave to Benjamin, has called Blankenship "stupid" and "a clown."
Massey has sued the Court because Starcher has refused to recuse himself from its cases. Benjamin has remained similarly steadfast.
After a five-week trial, a Brooke County jury found that Central West Virginia Energy Co. breached a coal supply agreement with Wheeling-Pitt, and that CWVEC and Massey engaged in fraud during their business relationship with Wheeling-Pitt by shorting it on hundreds of thousands of tons of coal from 2003-06.
Blankenship used almost $3 million to support Benjamin's campaign, hoping to oust former Justice Warren McGraw, the brother of state Attorney General Darrell McGraw, from the bench.
According to Massey's complaint against the Court, Starcher told a group of high school students visiting the state Capitol on Dec. 3, 2002, that coal companies were not good for the state because "they reap benefits without contributing anything in return." The complaint also states that Starcher singled out Massey in that criticism.
After Benjamin's election, Starcher spoke at the 2005 Virginia Trial Lawyers Association's annual conference, saying, "So, really, the election was bought, a seat was purchased on our Supreme Court, and I'm highly offended by it. I'm highly offended by the obscene use of out-of-state money ..."
He also told a television reporter, "I think (Blankenship's) a clown, and he's an outsider, and he's running around this state trying to buy influence like buying candy for children. And, I think it's disgusting.
"He's stupid. He doesn't know what he's talking about ... I'm certainly not afraid of him."
There are two other pending cases involving Massey.
A $60 million Boone County verdict for Harman Mining Co. that has ballooned to $76 million. The justices overturned the verdict with a 3-2 vote (Benjamin, Maynard and then-Chief Justice Robin Davis made up the majority), but Harman later provided the pictures of Maynard and Blankenship and was unanimously granted a rehearing.
Hampshire Circuit Court Judge Donald Cookman is taking Maynard's place in the case.
Maynard, facing re-election this year, also recused himself in an appeal brought by citizens group Coal River Mountain Watch against Massey. The group says one of Massey's silos is too close to an elementary school, though the state's Department of Environmental Protection has filed a brief urging the Court not to hear the group's appeal.
Because Benjamin is scheduled to become Chief Justice next year, he has the task of appointing judges to take the place of judges unavailable or unwilling to hear arguments. He chose Senior Status Judge Frank Jolliffe for the Wheeling-Pitt case.