Judge appointed in Massey rehearing

CHARLESTON – A former Putnam County circuit judge will stand in for West Virginia Supreme Court Chief Justice Brent Benjamin in the reconsideration of a controversial Massey Energy appeal.

Senior Status Judge James O. Holliday was appointed to participate in the court's rehearing of Massey's appeal of a $50 million verdict in favor of Harman Mining.

In remanding the case back to West Virginia, the U.S. Supreme Court on Monday ruled that Benjamin should have stepped aside in hearing Massey's appeal because Blankenship had spent about $3 million in the 2004 election on ads targeting Benjamin's opponent, former Justice Warren McGraw.

Harman's chief, Hugh Caperton, had asked Benjamin repeatedly to recuse himself, but Benjamin maintained he could be impartial.

Justice Robin Jean Davis, serving as acting chief justice, signed two administrative orders Thursday appointing Holliday and concluding the participation of judges Donald Cookman and Fred Fox, who had previously stood in on the case for former justices Elliott "Spike" Maynard and Larry Starcher.

Maynard and Starcher both stepped aside from a rehearing of the appeal because of their relationship with Blankenship.

Maynard was photographed with Blankenship while the two vacationed on the French Riviera. Starcher had been publicly critical of Blankenship.

The U.S. Supreme Court, in the 5-4 ruling, said the amount of money Blankenship spent to boost Benjamin's campaign was excessive and that a probability of bias existed on Benjamin's part.

Critics of the ruling say it only opens the doors for so-called "judge shopping" by litigants who don't want certain judges hearing their cases.

The state court had twice voted in favor of Massey in the appeal. Benjamin voted both times.

It is unclear when or how the state Supreme Court will reconsider the appeal. The U.S. Supreme Court's decision will not be considered final until 25 days after the Monday filing.

Supreme Court case number: 33350