Caperton always opposed Benjamin being on W.Va. SC

By John O'Brien | Jan 28, 2009



CHARLESTON\- The man challenging state Supreme Court Chief Justice Brent Benjamin's ability to hear certain cases apparently never wanted Benjamin on the Court anyway.

Hugh Caperton, the owner of now-bankrupt Harman Mining who is appealing the overturning of a $50 million verdict to the U.S. Supreme Court, contributed $20,000 to Benjamin's opponent in the 2004 election, the former executive director of the state's Republican Executive Committee recently noted.

Gary Abernathy recently wrote about the contribution made by Caperton to a group called Consumers for Justice, which gave more than $2 million to then-Justice Warren McGraw.

On his online publication The Republican Gazette, Abernathy also wrote that Caperton's lawyer, Bruce Stanley, gave $10,000 to Consumers for Justice, and another law firm on Caperton's side, Buchanan Ingersoll, gave $30,000.

"So, the very individuals complaining that Benjamin should recuse himself from cases involving Massey Energy because of money spent by (Massey CEO Don) Blankenship on Benjamin's behalf are themselves guilty of trying to 'buy a seat on the court' through their own contributions to Consumers for Justice," Abernathy wrote.

Blankenship spent more than $3 million in support of Benjamin through an independent expenditure group called "And for the Sake of the Kids."

When a $50 million verdict against Massey came before the Court last year, Benjamin refused to step down.

A Boone County jury had awarded $50 million to Harman Mining and Caperton in his case against Massey, a dispute over a broken coal supply contract.

However, the state Supreme Court overturned the verdict in November with a 3-2 vote, then again by the same vote after then-Chief Justice Spike Maynard recused himself.

Photographs had surfaced of Maynard and Blankenship on vacation in Monaco. The two, lifelong friends from Mingo County, said they were coincidentally vacationing at the same place at the same time, and Maynard provided documentation to show he paid his own way.

Caperton, throughout, complained that Benjamin should have taken himself off the case. Supreme Court Justice Larry Starcher agreed, recusing himself in the hopes Benjamin would do the same.

"The motion seeking disqualification comes over three years after the 2004 election and focuses entirely on that election," Benjamin wrote. "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."

While Benjamin is viewed by many as a pro-business influence on the Court, he voted against hearing Massey's appeal of a $220 million Brooke County verdict against it.

He has also recused himself from a high-profile case involving a $381 million verdict against industrial giant DuPont because his former law firm is involved.

Most of the amicus briefs filed in the case have been in support of Benjamin's recusal.

A group of 27 former justices from 19 states has filed a brief that says Benjamin was wrong to stay on the bench.

"Substantial financial support of a judicial candidate -- whether contributions to the judge's campaign committee or independent expenditures -- can influence a judge's future decisions, both consciously and unconsciously," the brief says.

"Amici believe that the only way to preserve a litigant's due process right to adjudication before an impartial judge is to require that a judge recuse from a case not only when the judge consciously perceives the judge's own partiality, but also when there exists a reasonable appearance of partiality or impropriety."

Abernathy also noted the United Mine Workers donated $5,000 to Consumers for Justice. On Monday, the group blasted Alabama Attorney General Troy King for trying to round up support for Benjamin among state attorneys general.

The group filed a "statement of interest" with the state Supreme Court last year that said the UMWA health and retirement funds have claims nearing $16 million in Harman's bankruptcy case.

The Massey litigation, then, was the principal asset in the bankruptcy estates, the UMWA wrote.

Massey filed its own brief in the case Thursday.

"Justice Benjamin voted against Massey affiliates in at least five other cases. There is no personal relationship between him and Blankenship," the brief says, according to the Charleston Gazette.

"The money at issue was not solicited by or given to Justice Benjamin's campaign but was spent independently of it. And the expenditures were not made by any party to the case [but rather by an individual officer of one of the defendants]."

From Legal Newsline: Reach John O'Brien by e-mail at

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