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Lawyers offer poll in bid for justice’s recusal from Massey case

CHARLESTON, W.Va. (AP) Lawyers defending a $76 million judgment won against Massey Energy Co. hope a poll of 753 West Virginians will help convince a state Supreme Court justice to recuse himself from deciding the case.
Justice Brent Benjamin has previously declined requests from Harman Mining Co. and its president to withdraw from Massey’s appeal.

Harman and Hugh Caperton argue that Benjamin’s impartiality is in question because Massey’s chief executive spent an estimated $3.5 million to help get him elected in 2004.

Lawyers for Harman and Hugh Caperton renewed their bid Friday by citing the poll they commissioned, which found 67 percent with doubts about Benjamin’s impartiality.

Benjamin has not responded to the latest petition. He has previously ruled against Massey in other cases, including two involving millions of dollars in severance taxes owed by the Richmond-based coal producer.

The survey also found that 68 percent had doubts about Benjamin’s fairness in a separate Massey appeal. That pending case challenges a $240 million judgment won against it by Wheeling-Pittsburgh Steel, which shares a lawyer with Harman.

Wheeling-Pitt had unsuccessfully sought Benjamin’s recusal in its case last month, but had not filed any renewed petition.
The Colorado-based firm Talmey-Drake conducted the poll by telephone this week. For both the Harman and Wheeling-Pitt cases, it asked “does the $3.5 million the head of Massey Energy spent to help elect Justice Benjamin to the court create doubt in your mind that he will be fair and impartial, or do you feel he can be fair and impartial?”

Don Blankenship, Massey’s president, chairman and CEO, has estimated he poured that amount into an effort to promote Blankenship, a Republican, over a Democratic incumbent.

The poll also found that 37 percent of those surveyed had previously heard of the Harman case, in which a 2002 jury found that Massey ruined both the coal company and Caperton by hijacking a supply contract. Only 31 percent knew about the 2007 verdict in favor of Wheeling-Pitt, which alleged Massey reneged on supply contracts.

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