CHARLESTON – A bankrupt coal company and its president again are asking state Supreme Court Justice Brent Benjamin to recuse himself from its case against Massey Energy. And this time, they have commissioned a poll to help make their point.
On Friday, Harman Mining Corporation and Hugh M. Caperton renewed their disqualification motion because, as the motion states, Massey CEO Don Blankenship and others "expended mover $3.5 million to help Justice Benjamin's election to this court" in 2004. The motion includes the results of a telephone survey that shows 67 percent of those polled don't think Benjamin could be impartial in this case.
While he hasn't responded to the latest request, Benjamin previously has refused to step aside in this case. In February, Benjamin refused to step aside in the Harman and Wheeling-Pitt cases involving Masssey.
Benjamin was part of a November 3-2 ruling that overturned a $60 million Boone County verdict for Harman Mining Co. against Massey. With interest, the figure had increased to $76 million, but three of the justices determined that a forum-selection clause in the disputed coal contract required any actions to be brought in a county in Virginia.
Shortly after, Harman owner Hugh Caperton produced photographs of Blankenship and current Chief Justice Spike Maynard together in Monaco. Maynard admitted he is a longtime friend of Blankenship's, claimed the two coincidentally were vacationing at the same place at the same time and provided documentation that showed Massey did not pay for his trip.
The justices unanimously decided to hear Harman's case again. Maynard recused himself from it and soon was joined by Justice Larry Starcher, who has called for an investigation into the extent of Maynard's and Blankenship's friendship.
Starcher has a history with Blankenship. He has called Blankenship "stupid" and "a clown" in the past because he felt the Massey CEO was attempting to buy the Court.
Friday's motion also Blankenship's support of Benjamin "caused a public outcry, produced remedial legislation, and which, Appellees allege, would cause a reasonable person to question Justice Benjamin's ability to be fair and impartial in hearing Massey's appeal to this Court to reverse or greatly reduce the very substantial judgment entered against Massey in the trial court below."
And it includes results of the public opinion survey that Harman and Caperton paid to have conducted.
A March 24-28 telephone survey of West Virginia residents showed that more than two-thirds of those polled doubt Benjamin can be fair and impartial regarding this appeal, and that only 15 percent think he can do so.
The motion includes an affidavit from Robert Drake, senior vice president of Talmey-Drake Research & Strategy Inc. from Boulder, Colo. That firm conducted the phone survey.
His affidavit shows that American Research Interviewing – a spinoff company of Talmey-Drake – conducted 753 phone interviews with randomly selected West Virginia voters. Quotas were selected to obtain equal representation for men and women as well as representation from each West Virginia county. The margin of sampling error was plus or minus 3.6 percentage points.
"Interviewees were also asked whether the three and a half million dollars spent by the head of Massey Energy to help elect Justice Benjamin creates doubt in their minds that Justice Benjamin will be fair and impartial in the two cases," Drake's affidavit states. "Sixty-seven percent (when asked about the Harman case) and 68 percent (when asked about the Wheeling-Pitt case) say they have doubts that Justice Benjamin will be fair and impartial."
The survey also included questions about the photos of Blankenship and Maynard together in Monaco. Maynard has withdrawn from three cases involving Massey, and 79 percent of those surveyed agreed with his decision.
"The motion seeking disqualification comes over three years after the 2004 election and focuses entirely on that election," Benjamin wrote then. "It contains nothing about this Justice's record on the Court.
"There are no allegations that this Justice has or has had any relationship with Mr. Blankenship or any party in this litigation, or that he ever represented Mr. Blankenship or any Massey company in his 22-plus years of private practice. Nor is this Justice aware of any basis by which this Justice should disqualify himself."
In his February brief, Benjamin wrote that several state officers, such as Attorney General Darrell McGraw (the brother of Warren McGraw, whom Benjamin defeated in the 2004 election) and Department of Environmental Protection Secretary Stephanie Timmermeyer have not asked for Benjamin's recusal in their cases involving Massey.
"Simple conclusory accusations and assumptions are plainly insufficient to support a motion for disqualification," Benjamin said. "To interpret the term 'impartiality might reasonably be questioned' in such a subjective and partisan manner as the movants seem to suggest, particularly after this Justice voted in the majority against their legal positions in this case, 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."
Massey seeks Starcher's withdrawal from the Wheeling-Pitt appeal, and Starcher has scheduled a hearing next month to mull that request. The hearing is the first for the Supreme Court.