MonacoGate Upends Massey Ruling

With a circuit judge sitting in for disqualified Chief Justice Elliott "Spike" Maynard, the state Supreme Court has voided its earlier reversal of a $76.3 million judgment against Massey Energy Co.

Thursday's 5-0 vote granted the petition for rehearing sought by Harman Mining Co. and Hugh Caperton, which had won the judgment.

As The Associated Press and others report, Maynard's recusal and Thursday's outcome follow "the release of vacation photos showing him with Don Blankenship, Massey's chairman, president and chief executive officer, while the judgment was headed for appeal."

The two sides will again argue the appeal March 12.

Lawyers for Harman and Caperton reacted to the decision by urging the joint recusal of Justices Larry Starcher and Brent Benjamin. Starcher has been a frequent critic of Massey and Blankenship, while Benjamin "was elected in 2004 after Blankenship spent millions on ads that promoted his candidacy by attacking his Democratic opponent," AP notes.

"The Court would gain great credibility, public confidence in the judicial system would be restored, and the litigants would take great comfort that justice will be done," the lawyers' statement said.

Thursday's order included comments from Starcher, who said "the majority" had denied both he and Benjamin time to consider recusal. He also said in the order:

I have an absolute right and duty to comment publicly on that issue, although my language should have been more temperate, I admit. But I can separate that opinion from my understanding of the law.

That comment helped prompt the recusal statement from Harman and Caperton's lawyers.

AP reports that "Starcher also noted the ad campaign that benefited Benjamin, but said that 'he, I am sure, also sincerely believes he can separate that fact from his understanding of the applicable law.'"

The AP article also had this:

The Monaco photos grabbed national headlines. Starcher has since asked for an independent probe to examine other allegations he said "raise extremely serious legal and ethical issues." While providing no details in his Tuesday memo to court administrators, Starcher said he is prepared to share what he knows with investigators.

The justices discussed the memo during a Thursday conference and "are, of course, taking a studied and deliberate approach to this issue," Bundy said. "I have no resolution to report."

Others with the story include The Charleston Gazette and MetroNews.

Decidedly different takes can be found here, here, here and here. Each seems to ignore the analysis of scholars at the Louis Stein Center for Law & Ethics at Fordham University's law school, the Stanford Center on Ethics at Stanford University's law school, and the law schools of New York University, the University of Connecticut, Georgetown University, George Mason University and West Virginia University.