This news story originally provided by The Charleston Gazette

November 3, 2005

Recusal unnecessary, DEP says

By Ken Ward Jr.
Staff writer

State regulators say that they saw no reason to ask Supreme Court Justice Brent Benjamin to recuse himself from the company’s fight to block the temporary closure of a Massey Energy operation for repeated environmental violations.

Benjamin took part in a Tuesday hearing in which Massey subsidiary Marfork Coal Co. asked justices to consider its appeal.

Perry McDaniel, chief of the Department of Environmental Protection’s Office of Legal Services, said agency officials did not discuss asking Benjamin to recuse himself.

After a reporter inquired about the matter, McDaniel said he asked DEP Secretary Stephanie Timmermeyer if she would have considered such a move. Timmermeyer told him she “would not have entertained” the idea, McDaniel said.

“We do not feel it is appropriate for us to ask a sitting Supreme Court justice to step down,” McDaniel said. “There are clearly no grounds here for us to ask a Supreme Court justice elected by the people to step down in this matter.”

Last year, Massey CEO Don Blankenship spent more than $3 million to help Benjamin unseat Justice Warren McGraw.

Now, Blankenship says he will spend millions to try to defeat Justice Larry Starcher if Starcher runs for re-election in 2008.

After Blankenship announced that plan, Starcher criticized the coal executive, calling him “stupid” and “a clown.”

Those comments prompted Massey lawyers to renew their request that Starcher recuse himself from the Marfork case. Starcher declined.

Under West Virginia court rules, judges are required to disqualify themselves whenever their “impartiality might reasonably be questioned.” Among other examples, the rules say that judges should recuse themselves if they have “a personal bias or prejudice concerning a party or a party’s lawyer.”

Earlier this year, Benjamin took part in one case concerning a Massey subsidiary and ruled against the company.

In that case, Massey asked the court to consider an appeal of an $830,000 judgment in favor of a worker who was injured in one of Massey subsidiary Independence Coal Co.’s underground mines.

The miner, Joshua McNeely, lost the sight in his left eye when a piece of metal broke off a pick hammer.

The court voted 4-0 not to hear Massey’s appeal. Justice Robin Davis recused herself because McNeely was represented by her husband, Charleston lawyer Scott Segal. Benjamin voted with the majority not to hear the case. Segal did not ask Benjamin to step down.

Benjamin has not announced whether he will recuse himself from Massey’s appeal of a $50 million verdict in the Harman Mining Corp. case.

Hugh Caperton and his company, Harman Mining, won the verdict against Massey in the bad faith and breach of contract case from a Boone County jury in August 2002. Since then, interest has accumulated, making the verdict worth more than $60 million.

A hearing on Massey’s request that the court hear that appeal has not been scheduled.

The justices did not immediately rule this week on whether they will accept Massey’s appeal in the Marfork case.

In that case, Marfork lawyer Bob McLusky argues that a nine-day suspension for the company’s slurry impoundment permit was too harsh. McLusky also argues that the suspension was part of an ongoing pattern of DEP harassment of Massey.

Tom Clarke, a DEP lawyer, told justices in court papers that Massey “is in a state of denial” over the company’s “abysmal compliance history.”

To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.