Odd allies question ethics of Justice Benjamin in ruling on Massey appeal

By Lawrence Messina

CHARLESTON — An unusual alliance between public interest groups, corporate giants and even ex-judges has formed in a U.S. Supreme Court case over the ethics of a West Virginia judge who ruled in favor of a campaign contributor’s company.

Wal-Mart, PepsiCo, Intel Corp. and Lockheed Martin Corp., as well as groups such as Common Cause and Public Citizen, have all submitted arguments urging the top court to throw out an April decision by the West Virginia Supreme Court.

Each believes that Brent Benjamin, now the state court’s chief justice, created an appearance of bias in the case. Benjamin had helped overturn a $50 million verdict against Massey Energy Co. The coal company’s top executive, Don Blankenship, spent more than $3 million to help get Benjamin elected in 2004.

Benjamin twice was part of 3-2 majorities that threw out the judgment won by Harman Mining Co. in a coal contract dispute with Massey.

The interest by corporate America in the case comes amid growing concern over the role of money in electing state judges. And the companies may also be angling to strengthen efforts to recuse judges from cases, said business and ethics professor David Schultz of Hamline University in Minnesota.

“If you raise the stakes in terms of when judges have to step down, it’s going to make it easier for you to then get judges recused,” said Schultz, who also teaches at University of Minnesota’s law school. “If you’re an attorney you want as much flexibility as possible, all things being equal, to be able to try to remove judges.”

The U.S. Supreme Court agreed in November to hear the appeal from Harman and its president, Hugh Caperton. A hearing is set for March 3.

All told, at least 48 entities, including the League of Women Voters, the American Bar Association and state-level lawyer and public interest groups, have filed briefs in the case. Each echoes the worry that Benjamin created an appearance of impropriety by remaining in the case.

One brief from 27 former justices from 19 state Supreme Courts, including West Virginia, faulted the judge for not recusing himself. The U.S. Conference of Chief Justices filed a brief that did not take sides but said such “extraordinarily out-of-line campaign support” may require recusal. Benjamin is a member of the conference.

Benjamin, 51, has issued a lengthy defense of his actions, saying he had no financial interest in the case’s outcome and that the bulk of Blankenship’s money went to ads from groups supporting his candidacy.

He and court officials have cited other cases where he decided against Massey, including several involving millions of dollars in disputed taxes. Benjamin also was part of a unanimous vote that turned away the leading coal producer’s appeal of a $260 million jury verdict in a separate contract dispute.

The brief from Wal-Mart, Pepsi, Lockheed, Intel and four business-related groups argued the Harman case shakes public confidence in the court system.

“Justice Benjamin created an appearance of bias that would diminish the integrity of the judicial process in the eyes of any reasonable person,” their filing said. “In light of the appearance of bias, Petitioners cannot be said to have received due process.”

The pending appeal stems from a 2002 jury verdict that found that Richmond, Va.-based Massey hijacked a coal supply contract from Harman, plunging both it and Caperton into bankruptcy.

Massey contended Harman filed for bankruptcy because of mounting losses at a mining facility and other problems that had nothing to do with Massey.

A Massey spokesman did not immediately respond to a message requesting comment Tuesday.

The state Supreme Court first ruled in Massey’s favor in November 2007. It agreed to rehear the case after photos surfaced showing Blankenship socializing in Monaco with then-Chief Justice Elliott “Spike” Maynard while the case was heading to appeal. Maynard recused himself from the rehearing, but denied any impropriety. He lost his re-election bid in the state’s Democratic primary.

The case is Caperton v. Massey, 08-22.

Associated Press writer Tim Huber contributed to this report.