March 3, 2009 -- A multi-million dollar advertising campaign waged by a controversial mining executive to elect a West Virginia Supreme Court judge to preside over cases his company had before the court may push the U.S. Supreme Court to act. Supreme Court Justice John Paul Stevens Tuesday called the case one of the most "extreme" of its kind that the high court has ever considered. The situation fit Justice Potter Stuart's infamous definition of obscenity, Stevens said, "I know it when I see it."
Don Blankenship, president and CEO of the massive Massey Energy, won successive court appeals in the West Virginia Supreme Court after a jury verdict awarded $50 million to a competitor that claimed Massey had run the smaller mining company out of business. Harman Mining accused Massey of defaulting on contracts and committing fraud.
After Harman won the $50 million verdict in trial court, Massey appealed to the West Virginia Supreme Court. Shortly after, their CEO Blankenship helped to raise a $3.5 million advertising war chest that led to the defeat of one of the Supreme Court justices. The winning candidate in that election was Justice Brent Benjamin who later voted in favor of Massey when Harman's appeal came before the court.
When an ABC News producer caught up with Blankenship last spring to ask him about his financial support of Benjamin, he grabbed the producer's shirt and camera and told him he was "liable to get shot."
Justice Benjamin declined to recuse himself from the case, saying there was no evidence he would not be impartial. He went on to cast the deciding vote in a 3-2 decision by his court in favor of Massey Energy.
U.S. Supreme Court justices hearing the matter argued before them today appeared at times sympathetic to the plaintiff, Hugh Caperton of Harman Mining, who had appealed to them to throw out the West Virginia Supreme Court verdict.
Citing the amount of money Blankenship raised for the ad campaign to elect Benjamin, the timing of his case, and Blankenship's central role in the proceeding, Supreme Court Justice Steven Breyer said, "all of those things make a serious risk of bias. . . you put it together, and it spells trouble."
Questions About the WV Chief Justice
Tuesday's case is not the first conflict of interest issue to dog the West Virginia Supreme Court. Chief Justice Elliott "Spike" Maynard lost his bid for re-election last year after photographs surfaced showing that he and Blankenship along with their girlfriends vacationed together in the French Riviera.
After the photographs surfaced, Maynard did recuse himself from the Harman appeal, after initially siding with Massey on the first appeal.
Blankenship and Justice Maynard have acknowledged they spent several days together on vacation in Europe at a time when the court was considering appeals involving Blankenship's coal company, the country's fourth largest.
"I think he bought a dinner, I bought a dinner. I think we each bought a dinner," said Maynard.