W.Va. Judges Asked to Recuse in Massey Coal Case Three of the five state Supreme Court justices have been asked to recuse themselves from rehearing a case in March involving one of the biggest businessmen in the state, Don Blankenship of Massey Coal. Two of the justices have ties to him, and the third has publicly criticized him.
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W.Va. Judges Asked to Recuse in Massey Coal Case

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W.Va. Judges Asked to Recuse in Massey Coal Case

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W.Va. Judges Asked to Recuse in Massey Coal Case

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MICHELE NORRIS, host:

John Grisham's new book "The Appeal" tells the story of a chemical company executive who's upset about a huge jury award against his firm. So he decides to spend millions to elect a judge to make sure the decision is overturned. Something very similar has been happening in West Virginia. There, it's coal instead of chemicals, and the controversy has embroiled three out of five members of the state's highest court.

Anna Sale of West Virginia Public Broadcasting reports.

ANNA SALE: Novelist John Grisham has been making the rounds promoting his new book "The Appeal." His story is fiction, but at an appearance on "The Today Show," he pointed to a real-life example.

Mr. JOHN GRISHAM (Author, "The Appeal"): Well, it's happened. It happened a few years ago in West Virginia. A guy owned a coal company. He got tired of getting sued. He elected his guy to the Supreme Court. It switched 5-4 back his way. And now, he doesn't worry about getting sued.

SALE: That story goes back four years to the 2004 election. That's when the head of one of the state's largest coal company spent more than $3 million in an effort to defeat a Democratic incumbent in the state Supreme Court election.

Massey Energy CEO Don Blankenship celebrated on election night as the returns came in, showing that the relatively unknown Republican named Brent Benjamin was headed for victory.

Mr. DON BLANKENSHIP (CEO, Massey Energy): You know, we're hoping to have a celebration tonight. It looks like we will.

SALE: At the time, Massey was preparing to appeal a $50 million verdict to the Supreme Court.

Mr. HUGH CAPERTON (Owner, Harman Development Corporation): I think, obviously, that was the reason that he entered that race.

SALE: Hugh Caperton is the owner of the coal company on the other side of that lawsuit. In November, in a 3-to-2 decision, the Supreme Court ruled in Massey's favor and wiped away damages that with interest had grown to $76 million. Justice Benjamin, the beneficiary of Blankenship's campaign spending, voted with the majority after declining a request to recuse himself. But that wasn't the end of it. Caperton's attorney Bruce Stanley asked the court to reconsider and filed pictures that showed the court's chief justice with the coal executive in the French Riviera in 2006 when Massey's appeal was pending.

At least three separate photos of Don Blankenship and Justice Maynard side by side either looking like they're preparing for a night out or sitting at a table together, obviously enjoying one another's company.

SALE: Justice Spike Maynard and Don Blankenship have acknowledged they are friends. But both men have said they were vacationing separately and only met up for occasional meals. Neither agreed to be interviewed for this story. Justice Maynard initially called allegations that he did anything improper nonsense. But a few days later, he recused himself from the case. The court then voided its previous decision and will rehear the case in March. And there's criticism of another justice on the court, one who's no friend of Don Blankenship. Justice Larry Starcher has called Blankenship a clown and had this to say on election night in 2004.

Justice LARRY STARCHER (West Virginia Supreme Court): What we're going to see is - we're going to see a Massey Coal and big out-of-state insurance companies and huge mega corporations buy a seat on our Supreme Court. And I'll be very sad to sit on that Supreme Court for the next 4 years quite frankly.

SALE: Like Benjamin, Starcher has declined to recuse himself. In West Virginia, as in the federal court system, individual justices make the decision about whether to disqualify themselves from cases. But Stanford Law professor Deborah Rhode says it's appearances that matter when it comes to judicial ethics.

Professor DEBORAH RHODE (Professor of Law, Stanford University): This is textbook 101 of judicial ethics. And, you know, what not to do and how not to structure a system.

SALE: Rhode says it's not just the judge in the pictures who should step down but also the judge who benefited from Blankenship's major campaign spending and the judge who's publicly criticized Blankenship because their impartiality could reasonably be questioned.

Prof. RHODE: So you're down to two justices who ought to be hearing the case. And, you know, that's not a happy situation for anyone.

SALE: All the controversy has already churned up some soul-searching within West Virginia. Republican state Senator John Yoder took to the Senate floor recently to lament the conversations he had during a recent visit to Washington.

State Senator JOHN YODER (Republican, West Virginia): Everybody was talking about West Virginia and how bad the system is. It's just another incident where we help perpetuate a bad image. And everybody around the country is laughing at us.

SALE: State lawmakers have discussed a number of options, including public financing of judicial elections, nonpartisan judicial elections or a new commission to weigh in on recusals. In the meantime, Chief Justice Spike Maynard has disqualified himself from another multimillion-dollar appeal involving Massey Energy in the wake of the picture scandal. He's also attending to his campaign for reelection this year

For NPR News, I'm Anna Sale in Charleston, West Virginia.

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