“Extreme by any measure.” Those four words were used by the U.S. Supreme Court in a landmark 2009 decision to describe judicial corruption and corporate influence in the West Virginia courts.
That opinion by the nation’s highest court famously reversed the West Virginia Supreme Court of Appeals justices who had thrown out a lawsuit against a major coal company and represented an unusually forceful reprimand of a lower court. It also symbolized a turning point for a state where coal has been king for much of the past two hundred years.
Another decision — one levied last month by the Supreme Court in neighboring Virginia — has garnered far less attention but marks yet a further blemish on West Virginia and it highlights the role that coal continues to play in politics and law in that state.
The little-noticed decision handed down by the Virginia court was a major setback to one of the coal industry's kingpins, Don Blankenship, the former CEO of Massey Energy. For over a quarter of a century, Mr. Blankenship was the guiding figure and intellectual architect behind his company’s obliteration of the United Mine Workers union and the coal industry's wholesale shift toward a relatively new and environmentally-ruinous form of mining called mountaintop removal, which essentially involves blowing off the top of mountains to reveal the coal seams underneath.
The 27-page opinion out of Virginia was carefully worded, but subtly assailed the West Virginia court, describing at length how “the contentious story of litigation and controversy” had been “’bouncing’ back and forth” in the West Virginia courts since 1998.
Even after the Supreme Court's ruling, West Virginia had once again thrown the case against Massey out and decided the lawsuit should have started in Virginia instead. This recent ruling will allow the 15 year old case to move forward in Virginia's courts.
Aside from its symbolic importance as yet another blow to Big Coal and the elected West Virginia judges who for too long have been too cozy with this industry, the Virginia decision is so important because it breathed life back into a case that features one of this century's most epic David-and-Goliath legal battles — a drama worthy of a Hollywood film on the order of Erin Brokovich or A Civil Action.
The Virginia decision could not be better timed since it came the same month that best-selling author, Lawrence Leamer, published an exquisitely-reported book called The Price of Justice: A True Story of Greed and Corruption, which casts new and scathing light on the judicial corruption surrounding this legal battle — and quite especially the role that Mr. Blankenship played in it all.
Mr. Leamer chronicles an epic backstory pivoting around Bruce Stanley and David Fawcett – the two small-town lawyers who took on Massey, one of the biggest Appalachian coal companies near the height of the company’s power.
Mr. Blankenship initially brought in fleets of lawyers hoping to squash the case. But these two lawyers (and their client Hugh Caperton) refused to give up and eventually convinced a West Virginia jury to award their client over $50 million. Mr. Blankenship was so incensed that he spent $3 million funding a smear campaign against a sitting justice, Warren McGraw, who was up for re-election, helping to seat a conservative judge, Brent Benjamin, in this deeply blue state.
This act of hubris from Mr. Blankenship (spurred by the fight of these small town lawyers) is how the judicial system of West Virginia wound up under the microscope of the national media and the case found its way before the 9 Supreme Court justices in Washington DC.
Mr. Leamer offers a devastating account of this suit and a number of suits involving Massey and Blankenship, including civil lawsuits over the wrongful deaths of two miners in the Aracoma mine and twenty-nine at Upper Big Branch.
But the most mind boggling material Mr. Leamer landed is drawn from the personal diary of Larry Starcher, a justice of the Supreme Court of West Virginia at the time of this landmark case. The diary offers an unusually intimate day-by-day view of what that justice described as the slow corruption of the last institution that had been immune to coal’s control.
The ties between Blankenship and the West Virginia Supreme Court ran deep but none of the justices at first recused themselves from the Caperton suit and the court found in Blankenship’s favor. After photos ran in the New York Times of a smiling Justice Spike Maynard having a personal dinner with Blankenship in Monte Carlo, Justice Maynard agreed to step aside as the case against Blankenship was re-decided. Justice Starcher, who had made public comment critical of Blankenship and his company, also decided to recuse himself.
But Justice Benjamin, now sitting on the court thanks to Blankenship’s spending spree, remained determined to hear the case himself. The West Virginia Supreme Court’s new decision was 3-2 in Blankenship's favor, with Benjamin the deciding vote.
“We decided the now $75 million Massey Energy case in less than 60 seconds. (HONEST!)” an infuriated Justice Starcher wrote in his diary the night the case was decided, Leamer reveals. Calling the decision obviously decided in advanced, Starcher continued “Benjamin and Maynard are buddies with Don Blankenship and Robin kisses their butts to keep them ‘with her husband’ on his cases. The ‘good ole boy’ system rules the day.”
Caperton was appealed up to the United States Supreme Court, with Caperton’s lawyers arguing that “some in West Virginia wondered aloud whether Massey had 'b[ought] itself a judge.'”
The case, which became the real-life basis John Grisham’s novel The Appeal, began as a simple contract dispute over coal, with one company, Harmon, arguing that Massey breached a contract and drove them out of business. Harmon won its contract case, which it brought in the Virginia court system.
But Massey hadn’t only backed out on a deal, the evidence suggested the company took deliberate measures to cut the legs out from under its competitor. So after winning the contract case, Harmon sued Massey for fraud in West Virginia in 1998.
That was the case that was underway when Blankenship began working to elect Justice Benjamin.
The Price of Justice shines new light into what went on behind the scenes of the West Virginia Supreme Court, and the internal battles over the three justices that initially declined to recuse themselves from hearing the suit against Blankenship.
On January 8, 2008, a week before the photos made headlines, Justice Starcher wrote in his diary that he had decided that if “the evil three plan to ‘sell me down the river,’ ” referring to the three justices closest to the coal industry and Mr. Blankenship, he would make some of their conflicts of interest public.
In his diary, Justice Starcher also describes a “bomb letter” he sent to court officials calling for an investigation.
“I sure hope that the U.S. Attorney’s office moves on this matter,” Starcher later mused in his diary. “Otherwise Maynard wins,” Justice Starcher added referring to the judge that Mr. Blankenship wined and dined.
Why might anyone but coal historians or legal scholars care about the poisonous and pitted infighting between state Supreme Court justices?
Because the story offers a clear window onto the way that powerful stakeholders capture the very institutions that are supposed to police them.
In the wake of Citizens United, it's become easier than ever for corporate money to insinuate its way into elections, including judicial elections. This is especially troubling because judges are often allowed to decide for themselves when they should step aside because of their personal or financial ties to parties.
And corporations are increasingly spending money on judicial campaigns in states where judges are elected. “Candidates for state Supreme Courts have shattered fundraising records in recent elections, and more states are seeing special interest money flood judicial elections,” a recent report by the Center for American Progress found.
Without mandatory disclosures of who is behind these donations, it’s difficult for the public to find out what companies have spent massive amounts of money to tip the scales in judicial campaigns. And without active watchdogs like the brave Justice Starcher, the public might never know what role corporate campaign money played in how a particular case was decided.
What happened in West Virginia is an important cautionary tale, showing how much can go wrong when rampant corporate spending and the court system mix. And with legal battles on the horizon or underway over Keystone XL, fracking and greenhouse gas emissions, the stakes the next time around may be far higher than a contract dispute between two coal companies.
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