Massey Chairmans Gifts to Judge Puts Bias Issue Before Court

March 3rd, 2009|Editor
State

Benjamin won, ousting incumbent Warren McGraw, and three years later cast the deciding vote to strike down a $50 million jury award against several Massey units.

The U.S. Supreme Court hears arguments today on whether Benjamin should have removed himself from reviewing that case. A ruling requiring his disqualification would mark a first for the high court, which has never said that a judge might have to step aside because of the potential bias created by campaign spending. Critics say judges beholden to people who appear before them is a growing problem.

The case is “a very logical and very predictable result of what has been happening to judicial elections in the last decade,” said Bert Brandenburg, executive director of Justice at Stake, which is calling for Benjamins recusal. The group says candidates for state high courts raised more than $168 million from 2000 to 2007, more than double the contributions during the 1990s. Thirty-nine states elect at least some of their judges.

Massey, seeking to preserve its victory in defeating the $50 million award, is urging the justices to rule that Benjamin didnt have a constitutional duty to disqualify himself. The company, the fourth-largest U.S. coal producer, says the Supreme Court shouldnt inject itself into an issue that has traditionally been the province of state courts.

Covering New Ground

States “have fairly elaborate rules to govern this subject,” said Masseys Supreme Court lawyer, Andrew Frey. “The court would be covering new ground thats already adequately covered by the states.”

Richmond, Virginia-based Massey is accused of driving competing coal supplier Harman Mining Corp. out of business. Harmans suit contends that Massey first acquired the sole buyer of Harmans coal and then sharply reduced the amount purchased. In 2002, a jury awarded $50 million to Harman and owner Hugh Caperton.

Post-trial motions kept the case from reaching the states highest court until 2006. In the interim, Blankenship worked to oust McGraw, a justice with a record of ruling against corporate defendants, and replace him with Benjamin.

Blankenship spent more than $500,000 in direct support of Benjamin, mostly for television and newspaper advertisements. The Massey executive also donated almost $2.5 million to And For The Sake Of The Kids, an independent group that worked to defeat McGraw and aired a series of ads that accused the justice of voting to release a pedophile.

3-2 Decisions

Benjamin joined the states highest court in time to hear the Massey appeal. In a pair of 3-2 votes, with Benjamin in the majority, the court overturned the award. The majority said that Virginia courts were the proper forum for the dispute and that the suit was precluded by an earlier case in that state.

Benjamins defenders say he has voted against Massey in several other cases, including a decision not to review a $244 million judgment against the company. Blankenship has also said that his primary goal was to defeat McGraw and he barely knows Benjamin.

Massey spokesman Jeff Gillenwater didnt respond to a request for an interview with Blankenship.

Required to Step Aside

Capertons appeal argues that the Constitutions due-process clause required Benjamin to step aside because Blankenships campaign support created a “probability of bias.” Blankenships spending represented about 60 percent of the $5 million spent on behalf of Benjamin.

“For all intents and purposes, the justice on the West Virginia Supreme Court who decided this case was selected by one of the litigants,” said Capertons Supreme court lawyer, Theodore Olson, U.S. solicitor general in the Bush administration.

Others say they worry about the specter of the U.S. Supreme Court becoming the national overseer of judicial ethics. Should the high court force Benjamins recusal, “its virtually impossible to stop there,” said Harold See, formerly a justice on the Alabama Supreme Court.

“Maybe he shouldnt sit in any newspaper cases,” See said, pointing to the many newspapers that endorsed Benjamin.

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