Blankenship

Benjamin

Carper

CHARLESTON – The U.S. Supreme Court's ruling that West Virginia Supreme Court Chief Justice Brent Benjamin should have stepped down from a Massey Energy case because of Don Blankenship's spending in the 2004 campaign certainly isn't the end of the saga.

While Monday's ruling said Benjamin should have recused himself to avoid the appearance of bias, the majority offered no guidance to states in how to deal with any future such problems.

And dissenters to the opinion, specifically Chief Justice John Roberts and Justice Antonin Scalia, wondered what the fallout would be because of the vague majority opinion.

A federal judge in Charleston could offer more guidance on the issue and zero in on the state Supreme Court's recusal process -– which leaves it up to the justice being asked to step down.

Massey Energy has a lawsuit pending in U.S. District Court targeting the Supreme Court's recusal process. The company argues that because a party in a proceeding cannot appeal a justice's decision to stay on a case violates due process rights.

Massey's argument in that case pivots around former Justice Larry Starcher, who stayed on Massey cases even though he'd made no secret about his disdain for Blankenship.

In November, both sides agreed to stay the action until after the U.S. Supreme Court ruled in the case brought by coal operator Hugh Caperton against Massey and Benjamin on the recusal issue.

Washington-based lawyer Robert Luskin represents Massey in the federal action. Luskin said Tuesday it's unclear whether District Judge John Copenhaver will put the case back on the active docket.

If he does, Luskin says the judge will first call on the parties to submit briefs on how they believe the U.S. Supreme Court's decision is relevant to the lawsuit.

"To be sure, the decision in Caperton will furnish some guidance in resolving the issues raised in the West Virginia Supreme Court case," Luskin said. "But I wouldn't want to speculate how until we've had an opportunity to study the Supreme Court's decision further."

Luskin said if Copenhaver invites briefs, both sides will then engage in discovery and submit motions for summary judgment on which Copenhaver would rule.

If Copenhaver rules in favor of Massey, the court's rule on recusal could be voided as unconstitutional, which is the relief the coal company desires.

Kanawha County Commission president and lawyer Kent Carper believes that in the wake of the Caperton decision, the state Supreme Court will change its recusal rules on its own.

"I predict that the Supreme Court might set up a mechanism to deal with that because of this ruling," Carper said. "To help take some of the nonsense out of it."

Carper speculated that the court may make a rule that empanels either circuit judges or retired justices to ponder and rule on individual motions for recusal.

Carper believes these motions are going to become prevalent because of the Caperton opinion.

"At the end of the day, my concern is that there will be lawyers that will use this to attempt to intimidate a fair and decent judge because they don't want him or her on their case," Carper said. "That's going to happen and it's going to happen a lot … I think they'll take this and use it as a tool to go judge shopping."

If the state Supreme Court does take up a rule change, Carper believes the current make-up of the court will mean that a consensus is easily reached.

"I suspect they'll deal with this," Carper said. "I'll be surprised if they don't."




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