By Marcia Coyle
The West Virginia Supreme Court in September will take its third look at the appeal of a $50 million-jury verdict which led to a key U.S. Supreme Court ruling last month on judicial bias.
In a 5-4 decision on June 8, the nation's high court held that given "the serious risk of actual bias," the due process clause required the recusal of West Virginia Supreme Court Justice Brent Benjamin who twice voted to overturn the $50 million-verdict against Massey Coal Co. Caperton v. A.T. Massey Coal Co.
Before Massey's verdict appeal reached the state high court, Massey owner Don Blankenship contributed $3 million in direct and indirect contributions to defeat Benjamin's opponent in the 2004 general election.
Hugh Caperton, owner of Caperton Coal Co. who won the verdict against Massey for tortuous interference with his business, subsequently asked Benjamin twice to recuse himself from hearing Massey's appeal. Benjamin declined, saying there was no evidence of actual bias as a result of the campaign contributions. The verdict was overturned by a 3-2 vote.
But Justice Anthony Kennedy, writing for the nation's high court, said, "We conclude that there is a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent."
The West Virginia Supreme Court will hear the appeal on Sept. 8, according to an order issued by the court.
Caperton's counsel, Bruce Stanley of Pittsburgh's Reed Smith, said only one judge who heard the original appeal will be sitting on the court this time—acting Chief Justice Robin Davis. Davis wrote the first two decisions overturning the jury verdict, according to Stanley.
There will be no additional briefing, he added, but there may be additional filings.