West Virginia Record

Saturday, July 20, 2019

Reply brief filed in Benjamin case

By John O'Brien | Feb 25, 2009


WASHINGTON - Attorneys for a bankrupt coal company have filed one last brief before the United States Supreme Court decides if state Supreme Court Justice Brent Benjamin should have recused himself from the case of a campaign supporter.

Harman Mining's attorneys refuted three arguments posed by Massey Energy, the benefactor of the West Virginia Supreme Court's decision to overturn a $50 million verdict. Harman says Justice Brent Benjamin should have stepped down from the case because Massey CEO Don Blankenship spent millions of dollars campaigning against Benjamin's opponent in the 2004 election.

Harman filed its reply brief Tuesday. The case will be heard Tuesday.

"Massey dismisses the manifest probability that any jurist would have a difficult time being evenhanded in the face of such immense and influential campaign support by asserting that bias is never a constitutional ground for recusal; that any such principle unaccompanied by a clear, bright line would be limitless and unmanageable; and that, in any event, the $3 million was expended by an individual who was not actually a party to the case, and not to elect Justice Benjamin, but to defeat his only opponent," the brief says.

The case has drawn attention from all directions, including former Supreme Court justices, current state attorneys general, businesses and the American Bar Association.

Hoping to unseat then-Justice Warren McGraw in 2004, Massey Energy CEO Don 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 in 2007, Benjamin twice 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 Nov. 2007 with a 3-2 vote, then again by the same vote in April 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.

Some groups feel assigning a federal regulation regarding recusal for each state supreme court to abide by is dangerous, though others say the time is right for a rule change because of the nature of modern-day elections.

Massey has noted that Benjamin and Blankenship do not share a personal relationship, and Benjamin even voted against Massey in a $220 million verdict against it. That vote was 5-0 to not hear Massey's appeal.

"In any event, even if Justice Benjamin had cast a deciding vote against Massey in another case, it would not diminish the likelihood of bias in favor of Massey in this case, where he was asked to review a $50 million verdict against Massey that was premised on conduct orchestrated by his financial benefactor, and which was heading for an appeal to the West Virginia Supreme Court precisely when Mr. Blankenship set out to secure Justice Benjamin a seat on that court," the brief says.

A group of state attorneys general led by Alabama's Troy King says it is more a case about the rights of states to govern themselves.

"From amici's perspective, therefore, the question is not whether, in some abstract sense, Justice Benjamin 'should' have disqualified himself," King wrote.

"The question, rather, is whether the Court should fashion an entirely new body of federal constitutional law to govern day-to-day recusal practice in state courts - and, in the process, birth an entirely new species of litigation pleading, the Caperton motion.

"The answer on both counts is no."

Harman's full brief can be read on the Brennan Center for Justice at NYU School of Law's Web site.

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