Even more filed in High Court recusal debate

By John O'Brien | Apr 4, 2008





CHARLESTON - The state's Supreme Court attempted to return to normality Thursday after a 3-2 decision affirmed its earlier ruling in a controversial case.

After again siding with Massey Energy in a $76 million coal contract dispute, members of the Court are hoping the worst is over. Justice Brent Benjamin again refused to recuse himself in a case involving Massey, and Mingo County officials fought against the possible recusal of Chief Justice Spike Maynard.

Mingo County Commissioner Gregory Smith had sought the disqualification of Maynard, who recused himself from all Massey Energy cases after photographs surfaced of he and Massey CEO Don Blankenship on vacation in Monaco. Mingo Sheriff Louie Hannah filed a response Thursday.

"Petitioner Hannah respectfully moves Chief Justice Maynard to consider this response to the Motion for Disqualification and to find that Respondent's Motion to Disqualify is not well-grounded in fact and is not warranted by existing law," it says.

"Further, Respondent's motion was filed pursuant to the incorrect disqualification rule. Further, had Respondent filed his motion pursuant to the correct disqualification rule, his motion has failed to allege any causes for Chief Justice Maynard's disqualification which is required..."

Earlier Thursday, the Court overturned a Boone County verdict awarding Harman Mining Co. $76 million from Massey. The Court had done it in November, but the pictures of Maynard and Blankenship led to the rehearing of the case.

Maynard and Blankenship, longtime friends who both grew up in Mingo County, claim they were coincidentally vacationing at the same time and place. Maynard even provided documentation that showed he paid for his own trip.

Smith said Maynard should have been disqualified from his case against Hannah and Mingo County assessor David Basiden because Maynard and Hannah have conducted real estate business together.

Hannah said he did purchase real estate previously owned by Maynard but did not know it was his. He used Poole Realty to make the purchase and had no direct dealings with Maynard, up for re-election this year.

Hannah also says he did not contribute to Maynard's re-election fund. He is appealing a three-judge panel's decision not to remove Smith from his job.

Also on Thursday, Benjamin responded to a second Motion for Disqualification filed by Harman owner Hugh Caperton. Caperton thinks Benjamin should step down because Blankenship spent millions attempting to unseat Warren McGraw in 2004's election, helping Benjamin earn his spot on the bench.

Caperton said Blankenship's support has "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 his motion included 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 his appeal, and that only 15 percent think he can do so.

Benjamin wasn't buying it.

"The said motion relies on arguments which relate to the 2004 campaign and which could have been advanced in a timely manner, but have instead been raised now, nearly four years after the 2004 race, during the pendency of a new 2008 political race," Benjamin wrote.

"Citing no good cause for the delay in raising issues which could have been earlier raised, the said motion is untimely.

"Furthermore, a 'survey' which appears to be a 'push poll' specifically designed with limited information for the purpose of supporting the instant joint motion, is, as a matter of law, neither credible nor sufficiently reliable to serve as the basis for an elected judge's disqualification."

Justice Larry Starcher has been a frequent criticizer of Blankenship, publicly calling him "stupid" and "a clown."

Blankenship has sued the state Supreme Court in federal court in an effort to have Starcher removed from all his cases. Starcher recused himself from the Harman case, but not a $240 million Brooke County verdict against Massey is scheduled to be heard by the Court. Neither has Benjamin.

ABC News plans to air its report on Blankenship's effect on the West Virginia Supreme Court Monday. The piece will be featured on "World News with Charles Gibson" and "Nightline."

According to ABC News, an interview with Blankenship got physical. It says he told a reporter, "If you're going to start taking pictures of me, you're liable to get shot," in the parking lot of an office in Kentucky.

ABC says tape of the incident shows Blankenship grabbing the camera and breaking its microphone. Reporter Asa Eslocker says Blankenship grabbed him around the collar with both hands.

Blankenship's attorney wrote to ABC, claiming, "Mr. Blankenship has been a frequent target for harassment and physical attacks over the years, so his reaction is not so surprising when you consider that he was approached unannounced by an intruder on private property."

In a report in the Charleston Daily Mail, Blankenship said he didn't remember making any threats.

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