Benjamin's replacement in Massey case not known

Jun 09, 2009 (The Charleston Gazette - McClatchy-Tribune Information Services via COMTEX) -- MEE | Quote | Chart | News | PowerRating -- CHARLESTON, W.Va. -- The state Supreme Court will soon name a temporary justice to replace Chief Justice Brent Benjamin when it reconsiders two earlier rulings in favor of Massey Energy.

The November 2007 and April 2008 rulings overturned an August 2002 Boone County verdict in favor of Hugh Caperton and Harman Mining, now worth $82.5 million with interest.

On Monday, the U.S. Supreme Court said Benjamin should have recused himself from the case because Massey chief executive Don Blankenship spent more than $3 million to help Benjamin get elected.

Whoever becomes temporary chief justice when Benjamin steps down will pick his replacement for the Massey-Harman case. But court officials would not say who would become temporary chief justice.

"I am not at liberty to comment about what the court might, or might not, do," Supreme Court Clerk Rory L. Perry II said on Monday. Supreme Court spokeswoman Jennifer Bundy also declined to answer.

However, sources inside the court believe Justice Robin Davis, who wrote the opinion overturned by the U.S. Supreme Court on Monday, would become temporary chief justice.

Justices Margaret Workman, Menis Ketchum and Thomas McHugh would be next in line, said the sources, who asked not to be identified because they were not authorized to speak on behalf of the court.

In a statement Monday, Benjamin said, "I am pleased that the Supreme Court has not questioned my ethics, my integrity, or my personal impartiality or propriety. As a personal matter, that is very important to me and I appreciate the fact that the justices made a specific point of clarifying that issue."

Benjamin said new standards set by Monday's ruling will place more future emphasis "on perceptions and independent actions of external parties than on a judge's actual conduct or record."

"Specifically, the Supreme Court focuses on whether there may be a risk to due process in a case when an external party's influence in a given situation, such as in an election, is sufficiently substantial that it must be presumed to engender the potential for actual bias by a judge despite there being no direct relationship between the judge and the external party, and despite the lack of any benefit to the judge."

Benjamin sent his statement out on Supreme Court letterhead, but added at the bottom, "This release is personal and is not a release of the Supreme Court of Appeals of West Virginia." He did not return a telephone call to his office.

Reach Paul J. Nyden at pjnyden@wvgazette.com or 304-348-5164.

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