WASHINGTON -– Lawyers for Massey Energy are asking the U.S. Supreme Court to consider West Virginia Chief Justice Brent Benjamin's voting record when it comes to the coal giant.
Andrew Frey, Massey's lead lawyer, filed a brief Wednesday asking the U.S. justices to make Benjamin's voting history part of the record in an appeal filed by Hugh Caperton, a coal operator who won a $50 million verdict against Massey before it was overturned twice by West Virginia justices.
Caperton contends that Benjamin should have stepped down from hearing the case because Massey CEO Don Blankenship spent more than $3 million to defeat Benjamin's opponent in the 2004 general election, Warren McGraw.
The U.S. Supreme Court heard arguments in the case Tuesday. A decision is expected within the next six months.
"Justice Benjamin's voting history in Massey cases bears significantly on respondents' contention that, even if the Due Process Clause requires recusal when there is a 'probability of bias, there was no such probability here," Massey's brief states.
But the other side opposes including the voting record, arguing there is nothing new about the information that would justify its inclusion, according to court rules.
Benjamin's voting record was compiled and released Monday by the West Virginia Supreme Court's Public Information Office.
"The only thing that is remotely "new" about the information proffered by Massey is that it was repackaged in a self-serving news release on the eve of the oral argument before this Court," the opposition brief says.
"The 'news' Massey's supplemental brief purports to present -- information concerning Justice Benjamin's voting pattern in the fifteen Massey cases that have come before him in the four years since his taking the bench-was discussed at length in Justice Benjamin's min's opinion explaining his refusal to recuse himself, in petitioners' brief, and in the brief filed by Massey just five weeks ago."
The news release put out by West Virginia's Supreme Court said Benjamin has voted against Massey 81.6 percent of the time. Benjamin's votes, according to the court, have cost the coal company about $317 million.
Massey's lawyers contend that even if the constitution required a judge who felt a "debt of gratitude" to a litigant to step aside from hearing a case, Benjamin's voting record would exempt him.
Caperton's lawyers argue that what is "new" information that wasn't known at the time of the filing of the initial merit briefs were reported personal encounters between Blankenship and Benjamin.
Massey has asserted the two men didn't know each other before or after the election.
In the opposition brief, Caperton's legal team, led by former U.S. Solicitor General Ted Olson, cited a March 4 New York Times article in which Blankenship recounts a meeting between the men before the election where they talked about fundraising. Blankenship recalled that the meeting did not go well.
The article quoted Blankenship as saying "When he got through talking to me, I said, 'Mr. Benjamin, I don't know who you are, but if you go around talking to business people about raising money, you need to do more listening than you do talking'. I said, 'I've hardly been able to find out anything about you, but I don't like McGraw.' "
"That would be new information 'that was not available in time to be included in a brief,' and it would tend to reinforce petitioners' argument that the CEO had set out to pick a judge for his own case and that any reasonable observer would conclude that a judge selected under those circumstances quite probably would be biased in favor of the CEO who spent so much to elect him," the opposition brief says.
A story in the Feb. 15 Sunday Gazette-Mail also recounts a time in March 2006 when Benjamin "had dinner" with Blankenship, former stte Supreme Court Justice Elliott "Spike" Maynard and Chris Hamilton, vice president of the West Virginia Coal Association, at the Athletic Club Sports Grille at the Embassy Suites in Charleston.
But Jennifer Bundy, the state Supreme Court's public information officer, fired back in a letter to the newspaper, pointing out that the article's writer, Paul Nyden, also sat at the table with the men. Bundy called Nyden's article "disingenuous."
Bundy said Benjamin only joined the table where Blankenship and the others sat because he was asked to. She said he spent the majority of the time watching an NCAA 3-point shooting competition on television.
"Unless rudeness is now the standard of appropriate behavior in public, Chief Justice Benjamin did nothing wrong by watching a basketball game in a public restaurant," Bundy wrote. "He ate an appetizer and drank a diet soda, and paid for them himself."