Kentucky

Massie Energy, Don Blankenship, and the legal system.  Not a good combination over the years.  Now, with the mining disaster in my home state of West Virginia, Blankenship and money are now synonymous with death and profits.

See, eg.,

Daily Kos: Blankenship's Bloody Coal Mine: A Deluge of Violations

One no longer needs to read the tea leaves from the past to figure out what lies in our future with the recent Supreme Court's opening the flood gates on campaign contributions and the negative implications on the judiciary and judicial elections.

Cha-ching.  Get it.  Money talks, and ethics and integrity walk when the political currency is the vote and insurance companies and big business get to write big checks to place their persons on the bench.  Nobody thought it would happen in West Virginia, but Brent Benjamin's election to the Supreme Court of that state was largely owed to the coal money and finances of Blankenship.

Yes, some say I am crying wolf, but back room money and politics is not the way to elect judges.  Open and obvious works.  Judicial appointments involving the other two branches of government for all to see works better than the the current practice.  The SCOTUS decision has and will simply  compound the system as that ivory tower has no clue as to what they have wrought locally.

Recent story by Lawreader is just another chapter in this continuing saga of questionable governmental regulations and corporate influence in the courts:

From Stan Billingsley's LawReader Blog:

BIG COAL?S DON BLANKENSHIP AND THE U.S. CHAMBER OF COMMERCE ? BUYING THE COURTS TO KEEP THE MONEY FLOWING ? over $50 million spent in judicial races

By Stan on Uncategorized

By: Jason Rosenbaum  April 12, 2010     Don Blankenship is the head of Massey Energy, the company that runs the Upper Big Branch Mine which just had a horrific ?accident? that left 29 dead. Massey?s conduct under Blankenship has been negligent enough to approach criminality, calling into question how much of an ?accident? this was.

And some of our old stories to refresh your recollections amid my concerns of campaign contributions, judicial races, and the bad that money can do.

From Sept. 21, 2006:

Ky Kommentary: Judicial Elections Running Amok Elsewhere Or So Says the NY Times

In "Justice for Sale", William Kistner remarks on this West Virginia Supreme Court election, the high stakes finances, and interest groups with their impact on the outcome:

Judges are supposed to make decisions based on the law, not politics. But in 38 states, judges get elected to their jobs, and judicial candidates are raising big bucks and running TV attack ads. Judicial candidates spent more money running for office in 2004 than ever before. Meanwhile, special interest groups poured millions of dollars into their campaigns. Will the mountains of cash corrupt the independence of the courts?

* * *

The race for a seat on the West Virginia Supreme Court was mean and expensive. Over $5 million was spent by the candidates and their supporters, a staggering amount in this small state. The incumbent McGraw raked in donations from trial lawyers and unions. His opponent, corporate attorney Brent Benjamin, was the favorite candidate of big business and big coal. One of his major backers was the CEO of Massey Energy Company, the largest coal producer in the region. The company happened to be fighting off a major lawsuit headed to the West Virginia Supreme Court. That prompted many in these parts to say that Massey was out to buy itself a judge. At a senior center out on the campaign trail, Brent Benjamin vowed that no amount of money could influence his vote.

Is the battle in West Virginia over?  Not hardly per this and other stories:

• "But in an unusual show of political candor from a sitting judge, West Virginia Supreme Court Justice Larry Starcher lashed out that same night saying, "We're going to see Massey Coal and a bunch of out of state insurance companies and huge mega corporations buy a seat on our supreme court, and I'll be very sad to sit on that supreme court for the next four years quite frankly." Id.
• Massey sues state Supreme Court [Justice Larry Starcher]

And from Nov. 11, 2007 is yet another incident of Blankenship and West Virginia judicial politics as the state's judicial system goes from a Judicial Hell Hole to the Black Hole of Calcutta:

ELSEWHERE: Pending Case involving W.Va.'s highest court highlights dangers when justices speak off the bench

Our Constitution guarantees the individual the right of free speech.  However, that right is not without limits.  Of course, we all know the Holmes' admonition about yelling fire in a theater or your right to speak goes only as far as my right not to listen.

But not all may know that soldier's rights of free speech are limited by government service. 

And this is not the only public service position in which one much watch what they say as not all conduct is without consequences.

Here is a post that prompted this rumination.  It is from the W.Va. Record and discusses the issues of recusal arising from a sitting justice's remarks outside of published (and not to be published) court opinions.

Bias is not a judicial trademark that is valued by those appearing before the courts (even though many would love the bias to be in their favor).  Justices and judges speak to groups all of the time, and striking the balance between public service speeches and potential proconceived bias problems has raised its ugly head in W.Va.  Click on heading for entire story.

W. Va. SC seeking appeal in recusal case

CHARLESTON - While Massey Energy's case against it continues, attorneys for the state's Supreme Court of Appeals are asking for an appeal of a federal judge's decision not to dismiss the suit.

"Because immediate appeal from the Court's Order may materially advance the ultimate termination of the litigation, certification is appropriate," wrote members of the Tinney Law Firm in the motion.

U.S. District Judge for the Southern District of West Virginia John T. Copenhaver Jr. must grant the interlocutory appeal, which would be heard by a federal appeals court.

The case concerns statements made by current Supreme Court Justice Larry Starcher concerning Massey and its CEO, Don Blankenship. Massey argues that Starcher has shown a personal bias against both, and that the company (and subsidiary Marfolk Coal) would be unfairly treated if Starcher is allowed to participate in the cases against Massey currently before the Court.

Starcher has publicly called Blankenship "stupid" and "a clown." Two major jury awards against Massey are before the court, a $243 million award in a contract dispute and a $76 million Boone County award. The Boone appeal was heard in October, though Starcher did not attend. He will still participate in the decision.

And April 8, 2008, in a bizarre twist of Blankenship, then Chief Justice of Supreme Court of West Virginia, the Riviera, drinks, and a good time had by all:

Justice Takes a Hit as Chief Justice "Spike" Maynard recuses himself in case in West Virginia as life imitates fiction from "The Appeal"

The public's perception of justice took a hit in this story from Nightline regarding the West Virginia Supreme Court and Massey Energy. 

A picture of your Supreme Court Chief have drinks on the Riviera with a good friend and party with a case pending before you is unbelievable.  Not to recuse yourself is even worse. However, this is what happened in West Virginia as Chief Justice Elliott "Spike" Maynard was caught on film having drinks with the CEO of the nation's largest coal company while vacationing with their girlfriends on the French Riviera with cases pending before that same court. Not good.

Nightline did a story on this which had previously made the rounds in national papers (eg., NY Times Article).  Below is a link to a video from WV Public Broadcasting available at You Tube. However, Spike Maynard did not recuse himself the first time.  Not until a motion was filed with the pictures, and after initially refusing to recuse, he did so.  Now, the second appeal went the same way in favor of Massey Coal. 

I apologize for some of the poor formatting, but the content is here.  For a list of links "googled" on this topic, then click HERE.  For a Wikipedia link on Spike Maynard, click here which contains links to some of the pleadings, opinions, motions, etc. 

After the disclosure following the first appeal, Maynard recused himself.  Justice Starcher also recused himself under the circumstances.  However, Justice Brent Benjamin who was one of the remaining justices to hear the case did not recuse himself.  "Shortly after the initial verdict against Massey, Blankenship helped to raise $3.5 million for an advertising campaign that led to the defeat of one of the Supreme Court justices. The winning candidate who benefited from Blankenship's money, Justice Brent Benjamin, has refused to recuse himself from the Massey appeals. Benjamin turned down a request from ABC News to be interviewed. Despite numerous requests for his recusal, Benjamin writes in court documents that there is no evidence to suggest that he cannot be fair and impartial." [for a link to stories on this election, see Justice for sale(American Radio Works)].

John Grisham's novel, "The Appeal", is it life imitating fiction, or the other way around?

Meanwhile, here is the recent Nightline story. 

Another Legal Victory for Tough Coal Boss

Questions Have Emerged About Blankenship's Relationships With State Supreme Court Justices Hearing Multi-Million-Dollar Appeals by His Company

By BRIAN ROSS and MADDY SAUER

April 7, 2008