Who's Minding the Bench in West Virginia?

Motion Ties W. Virginia Justice to Coal Executive

January 15, 2008

A justice of the West Virginia Supreme Court and a powerful coal-company executive met in Monte Carlo in the summer of 2006, sharing several meals even as the executiveís companies were appealing a $50 million jury verdict against them to the court.

A little more than a year later, the justice, Elliott E. Maynard, voted with the majority in a 3-to-2 decision in favor of the coal companies.

Justice Maynard, who is now West Virginiaís chief justice, and Don L. Blankenship, the chief executive of Massey Energy, were "vacationing together," according to a motion seeking Justice Maynardís disqualification, which was filed on Monday.

A spokesman for Massey Energy disputed that characterization.

"Both Blankenship and Justice Maynard were separately vacationing in the Monte Carlo area," said the spokesman, Jeff Gillenwater. "They were not vacationing together. They did meet occasionally for meals ó lunches and dinners."

The motion included photographs showing the men together. The time stamps on the photographs, apparently taken by someone who had joined the men during their time together, indicated that they met on July 3, 4 and 5, 2006.

Asked whether it was a coincidence that the two men found themselves in Monte Carlo at the same time, Mr. Gillenwater said, "That is a coincidence, I think, and itís my understanding they were not staying in the same location." Justice Maynard stayed in Nice, France, Mr. Gillenwater said, and Mr. Blankenship in nearby Monte Carlo.

The motion asked Chief Justice Maynard to disqualify himself from the case and to withdraw his vote in favor of the coal companies. The stateís canons of judicial ethics say that judges must disqualify themselves when their "impartiality might reasonably be questioned."

They add that judges should disclose any information they believe the parties or their lawyers "might consider relevant to the question of their disqualification."

Chief Justice Maynard did not disclose the meetings in Monte Carlo, and he did not respond to requests for comment Monday.

Ten of the photographs attached to the motion were filed under seal. They showed, the motion said, "two females apparently traveling with them as companions." The men are single.

The case itself was brought by mining companies that said they had been driven out of business by fraud committed by Massey. "Make no mistake," Justice Larry V. Starcher wrote in his dissent in November. "A West Virginia jury heard from all the witnesses for both sides, and decided that Mr. Don Blankenship directed an illegal scheme to break" the companies.

Mr. Blankenship and his companies have attracted attention for labor disputes, workplace injuries and what environmentalists call a highly destructive form of mining called mountaintop removal that involves using explosives to blow off the tops of mountains to reach coal seams.

Hugh M. Caperton, the owner and president of Harman Development Corporation, a mining company that Massey was said to have driven out of business, said he was angry when he learned about the photographs, and doubly so when he saw the dates time-stamped on them.

"Thatís when all the miners take their families to Myrtle Beach and Pigeon Forge, if they can, if they can afford to," Mr. Caperton said, referring to vacation spots in South Carolina and Tennessee. "They go camping at the river while the chief justice and Don Blankenship are smiling and frolicking on the French Riviera."

Stephen Gillers, who teaches legal ethics at New York University School of Law, said Chief Justice Maynard should not have socialized with Mr. Blankenship and should now disqualify himself from the case. Federal judges in Manhattan, Professor Gillers said, will not even have lunch with old friends while they have cases pending in their court.

In 2004, Justice Antonin Scalia of the United States Supreme Court refused to disqualify himself from a case involving Vice President Dick Cheney, although the two had gone on a duck hunting trip together. Justice Scalia reasoned that disqualification was not required because Mr. Cheney had been sued in his official capacity. On the other hand, Justice Scalia wrote, "friendship is a ground for recusal of a justice where the personal fortune or the personal freedom of the friend is at issue."

Mr. Blankenship was not named individually in Mr. Capertonís suit. But he was a central figure in it, and his compensation includes shares and stock options. "The monetary effect on Blankenship is potentially enormous," Professor Gillers said, referring to the November decision.

Bruce E. Stanley, a lawyer with Reed Smith in Pittsburgh who represents Mr. Caperton, said he viewed the filing as "an opportunity for the court to get its house in order."

D. C. Offutt Jr., a lawyer for Massey in West Virginia, said the only question was whether Chief Justice Maynard could be fair and impartial. "Thatís his decision to make," Mr. Offutt said, "and he has always taken the position that he can."

Copyright 2008, The New York Times Company

From: The New York Times, January 15, 2008, http://www.nytimes.com/2008/01/15/us/15court.html, accessed 01/15/08.  Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.

As with many other cases, the Massey Energy case teaches that the business, social and political relationships of judges must be scrutinized to determine whether there could be a conflict of interest between a judge and the litigant or attorney who comes before him or her.  It also suggests that the authority to decide questions of judicial impropriety should be removed from judges, who are usually self-serving, and placed in the hands of a truly independent body.


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