West Virginia justice system is in turmoil

WASHINGTON — The justice system in West Virginia is broken and the U.S. Supreme Court should take steps to fix it, according to a pile of briefs in three cases awaiting the court's attention.

The chief justice of the West Virginia Supreme Court lost an election in May, after pictures of him vacationing in Monte Carlo surfaced in newspapers.

He was with a powerful coal-company executive who had business before the court.

A second justice has called the executive, Don Blankenship, stupid, evil and a clown who was "trying to buy influence like buying candy for children."

That justice, Larry Starcher, has disqualified himself only selectively from cases involving Blankenship's company, Massey Energy.

A third justice, Brent Benjamin, won his seat with the help of more than $3 million from Blankenship but has refused to disqualify himself from cases involving Massey, and twice joined a 3-2 majority throwing out a $50 million verdict against the company.

The U.S. Supreme Court is likely to announce this week whether it will hear one of the cases, about whether the Constitution's due-process clause requires Benjamin to step aside in the $50 million Massey case.

The case, Caperton v. A.T. Massey Coal, has attracted supporting briefs from the American Bar Association and several other groups urging the court to hear the case.

"If the public believes that judges can be bought, that is really poisonous and undermines public confidence in an independent judiciary," said Keith Fisher, a lawyer for the bar association,

Supporting brief

James Sample, a lawyer with the Brennan Center for Justice at New York University School of Law, which also filed a supporting brief, called Blankenship's campaign spending "a brazen attempt to purchase influence in a specific pending case."

Benjamin did not respond to a request for comment.

In a long opinion in July explaining his decision not to disqualify himself, Benjamin said he had judged the case on the merits and that only proof of a judge's actual bias, as opposed to the appearance of a conflict, requires recusal.

Massey filed a brief urging the Supreme Court not to hear the case, calling the matter "a grand conspiracy theory." The Massey brief said the U.S. Supreme Court "has never adopted a 'looks bad' due-process test."

The plaintiffs in the case are mining companies whose officials say they were driven out of business by fraud committed by Massey. They are represented in the Supreme Court by Theodore Olson, a former U.S. solicitor general.

"Individuals and entities that have business before the courts of the United States must be assured that the judges who handle their cases handle them truly, squarely and fairly," Olson said.

Olson argued and won the leading decision in this area, Aetna Life Insurance v. Lavoie, which was decided in 1986.

But that case established only that the Constitution can require judges with a financial stake in the outcome of a case to disqualify themselves.

Caperton, by contrast, turns largely on whether millions of dollars in campaign support from an interested party creates an appearance of impropriety so strong that recusal is required.

Second appeal

Massey takes a different position in a second appeal to the U.S. Supreme Court, this one urging the court to disqualify Starcher, he of the intemperate remarks.

"There would be no inconsistency" in granting that appeal while turning back the one concerning Benjamin, a Massey brief said, because Starcher's bias was manifest while Benjamin's conflict of interest, if there was one, was a question of appearances only.

Starcher has acknowledged having said some harsh things, and in an opinion in April he apologized for his remarks about Blankenship.

"He is obviously an intelligent person," Starcher wrote of Blankenship.

But Starcher added that he would disqualify himself only if Benjamin did. If that is a violation of due process, he wrote, "so be it."

Should the U.S. Supreme Court hear the matter, he continued, "we will surely be told that $3,500,000 in electoral support by the CEO of an active litigant in the court is sufficient to create 'an appearance of impropriety.' "

In a telephone interview, Starcher said he could keep an open mind in cases involving Massey and Blankenship.

"I don't have any bias against them in a legal sense," Starcher said. He proposed an analogy. "I don't smoke," he said. "I don't advise my children to smoke. But I don't get off tobacco cases."

Starcher added that the defeat of the chief justice, Elliott Maynard, and the series of Massey cases has strained personal relationships on the court.

"Some of the justices still barely speak to each other," he said. "It's a little tense."

Distinctive aspect

The respondents in the second case, Massey Energy v. Wheeling Pittsburgh Steel, are also represented by Olson. His brief is due Oct. 22, and he said it was premature to discuss what it would say about Starcher.

The petition in that case and a third one, NiSource v. Estate of Tawney, also attack a distinctive aspect of West Virginia justice: companies hit with enormous punitive-damages awards there have no right to an appeal.

Only two states, West Virginia and Virginia, do not guarantee at least one level of appellate review in civil cases. But Virginia caps punitive damages at $350,000.

West Virginia was responsible for three of the seven largest verdicts in 2007, according to The National Law Journal.

However, when two of those verdicts — one for some $400 million, the other for about $220 million — reached the West Virginia Supreme Court, the justices declined to hear appeals.

Andrew Frey, a lawyer for Massey, said the failure to allow at least one complete appeal violated due process.

"The risk of error if you leave it to a single judge, particularly an elected judge with a local constituency to accommodate, is too great," Frey said.

It is not clear, however, that the Constitution guarantees a right to an appeal in a civil case.