Recusal ruling reopens Massey suit vs WVa court

Sun, 06/28/2009 - 12:42pm
LAWRENCE MESSINA - Associated Press Writer - Associated Press

CHARLESTON, W.Va. (AP) — A recent U.S. Supreme Court's ruling against Massey Energy Co. will allow the coal operator to proceed with a federal lawsuit if filed nearly three years ago against West Virginia's Supreme Court.

U.S. District Judge John T. Copenhaver Jr. has ended a court-imposed pause in the case and has asked lawyers from both sides to weigh in this week on how to proceed.

Though Copenhaver set a Monday deadline, Massey petitioned him late last week to extend it to Friday. A lawyer for the state Supreme Court, Jack Tinney, said he did not oppose that request.

Massey wants Copenhaver to declare as unconstitutional the state court's policy governing how judges may recuse themselves from hearing cases. Lawyers for the Richmond, Va.-based company argue that the court's standard violates the right to due process guaranteed by the 14th Amendment.

Due process was also at issue when the U.S. Supreme Court faulted state Chief Justice Brent Benjamin earlier this month for refusing to remove himself from a contract dispute involving Massey.

The 5-4 decision from the nation's highest court seized on the "significant and disproportionate influence" of the $3 million spent by Massey Chief Executive Don Blankenship to help Benjamin win election in 2004.

Benjamin and two others on the state court had voided a $50 million verdict against Massey won by Harman Mining Co. and its president, Hugh Caperton. The U.S. Supreme Court ruling overturned the decision, sending the case back to West Virginia's high court for a new appeal to be heard without Benjamin.

The state rule requires justices to recuse themselves for any reason deemed appropriate, including when their "impartiality might reasonably be questioned." But it also leaves the final say up to the justice whose recusal is sought.

Some of Massey's allies had argued in favor of this rule and against second-guessing by the federal courts regarding such state-crafted policies.

They include lawyers representing seven states, led by Alabama Attorney General Troy King, who filed a "friend of the court" brief on Massey's behalf. These state officials alleged that Caperton and Harman sought to "federalize the recusal issue," and wrongly believed "that the Due Process Clause should provide the benchmark."

"The States are uniquely well-situated to regulate recusal practice in their own courts and have been both vigorous and innovative in doing so," the brief said.

That brief also noted that King and his counterparts "do not appear here either to defend or to criticize the wisdom of Justice Benjamin's refusal to recuse himself... Reasonable minds can and will disagree about whether, on the particular facts presented, recusal would have been the better course."

The Caperton ruling leaves it to the states to set their recusal standards. Noting that West Virginia is among those states that have adopted model language from the American Bar Association, it concluded that Benjamin failed to follow the rule when he declined to step aside.

"Objective standards may also require recusal whether or not actual bias exists or can be proved," the ruling written by Justice Anthony Kennedy said, continuing that "the failure to consider objective standards requiring recusal is not consistent with the imperatives of due process."

Given the narrow scope of the June 8 decision — it says that it only applies "to rare instances" — Tinney questioned whether it will help Copenhaver resolve the case. Also unlikely to end the matter is the retirement of the justice that Massey targeted for recusal.

While not naming him as an individual defendant, the lawsuit alleges that then-Justice Larry Starcher had shown "a strong personal bias" against both the coal producer and its CEO.

The suit cites public forums in which Starcher attacked Massey's environmental record and called Blankenship "stupid" and "a clown." Much of his comments involved the 2004 election, with Starcher at one event alleging that Blankenship was "running around this state trying to buy influence like buying candy for children."

Massey estimated that it was party to a dozen cases in West Virginia when it sued the state Supreme Court in August 2006. Starcher at the time had rebuffed its recusal request in at least one of those. He later agreed to step down from the Caperton appeal, while unsuccessfully encouraging Benjamin to follow suit. Starcher's term on the bench ended last year, and he did not seek re-election.

A lawyer for Massey, Patrick Slevin, declined comment Friday. Urging Copenhaver to rule summarily on the merits of its lawsuit, the company argued in an August 2008 filing that West Virginia's rule suffers from "fatal constitutional flaws."

"Simply put: the rule violates due process because it always permits disqualification motions to be decided solely by a justice who has an interest in the outcome," the filing said.

That filing also rejects an argument from the court's lawyers that a recusal decision could be appealed to the U.S. Supreme Court, as later occurred successfully in the Caperton case. It noted that the high court accepted just 151 appeal petitions out of 10,529 submitted during a recent one-year period.


Lawrence Messina covers the statehouse for The Associated Press.


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