Politics and Political Comments

There is a case being appealed before the U.S. Supreme Court. Caperton v. A. T. Massey Coal Company. When I happened to discover it, it reminded me of the John Grisham book, The Pelican Brief where a businessman, suspecting that an environmental case he was defendant on might be heard by an unfavorable U.S. Supreme Court, has one of the justices murdered in order to get a more favorable court makeup based on whom he figured that (or could influence) the President would appoint as his replacement.

The A. T. Massey Coal Company tried more than once to get their coal sold to LTV Steel but it basically was inferior to the quality of the coal supplied by the petitioners [Update 2/17/2009] (in a U.S. Supreme Court case, the one filing the appeal is the petitioner as opposed to the usual case of being called the plaintiff; the one who would be the defendant in the case is called the respondent.) [End Update] So Massey bought the owner of Wellmore Coal Corporation, who was the sole purchaser of the petitioner's coal and resold it to LTV. LTV refused to allow Wellmore to substitute Massey's coal for that of the petitioners, and canceled its contract. At the direction of Don L. Blankenship, CEO and President of A. T. Massey Coal Company, Wellmore Coal invoked what is called a "force majeure" clause against Sovereign Coal Sales and Harman Mining Corporation, some of the petitioner coal companies, reducing the amount of coal that it would buy from them, knowing that this would basically drive them out of business, and not only to add insult to injury, did this so late in the year that they had no other place to sell their coal.

Caperton, Sovereign Coal and Harmon Mining sued A.T. Massey and several related companies for allegedly pulling those and other stunts that basically drove them into bankruptcy. A 2002 verdict awarded the plaintiffs $50 million dollars. Due to various tactics and stalling by Massey, the case wasn't heard by the Supreme Court of Appeals of West Virginia until 2006.

In the mean time, West Virginia Supreme Court Justice Warren McGraw was running for re-election. According to one of the friend-of-the-court briefs, Brent Benjamin, an unknown lawyer, decided to run for McGraw's seat on the court. At the time he was a real longshot, having less than $25,000 to run for the office. Well, apparently. Blankenship got the idea to put his support behind Benjamin to replace McGraw for the seat on the court.

To the tune of $3 million dollars, an amount equal to 3,000 times the maximum amount an individual can personally spend to give to a candidate for public office under West Virginia law, but he did it to run advertising opposing McGraw rather than directly supporting Benjamin, which probably doesn't violate the law (and is probably protected speech under the First Amendment anyway.)

Apparently some of this stuff is as slimy as rotten mackerel. One of the commercials which was run accused McGraw of allowing a child molester to be released from prison, and able to work in a high school. Blankenship apparently provided a large piece of the financing of a group called And For The Sake of the Kids, a political action committee formed for the express purpose of getting McGraw off the court, claiming that McGraw's policies as a justice were bad for children and their future.

And it worked.

McGraw was defeated in his re-election and Brent Benjamin was elected a justice of the West Virginia Supreme Court. So now, the appeal of the $50 million judgment against A.T. Massey comes before that court. The petitioners filed a motion with Benjamin asking him to recuse himself in view of what appeared to be either a conflict of interest or the appearance of impropriety. Justice Benjamin decided that he did not need to recuse himself, then proceeded to vote on a case where essentially one of the litigants provided more than half of his campaign funds.

In a 3-2 decision, which Justice Benjamin was the deciding vote, the court overturned the verdict against Massey. Note that about 60% of Justice Benjamin's campaign funds came from Blankenship and his efforts to raise money for Benjamin's campaign. I mean, I thought Chicago Politics was cronyism writ large, but this smacks of utter ridiculousness.

And in another instance of adding insult to injury, because West Virginia Supreme Court Justice Larry Starcher publicly voiced comments critical of Blankenship's involvement in the 2004 election, A. T. Massey itself filed a motion to have Starcher removed claiming he was biased, and when he refused to do so, sued the West Virginia Supreme Court in federal court.

In view of the circumstances, Justice Benjamin should have recused himself but he did not. So, what people figured was going to happen, did. Blankenship bought himself a judge who would decide in A. T. Massey's favor.

So now, the U.S. Supreme Court is being asked to decide whether Benjamin's failure to recuse himself violated the petitioner's 14th Amendment right to due process. While I'm not a lawyer, it sure sounds like it did.

[Update 02/21/2010] The U.S. Supreme Court came to the same conclusion I did, and found that Benjamin should have recused himself, and reversed the decision in favor of Massey. So sometimes things do turn out right in the end, it just might take a bit longer. (Several years longer, in this case.) [End Update]

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Paul Robinson is a computer programmer and notary public for Virginia and Maryland, and is General Manager of Viridian Development Corporation.