Big Day For Harman

Yesterday was a great day for the Harman companies and myself. August 4th was the deadline for the filing of any Amicus Briefs in support of our Petition for Cert and I am very pleased at the organizations who chose to do so. Instead of linking each brief separately, I have linked The Brennan Center's dedicated web page for the Harman Case here. It has direct links to all of the briefs filed on our behalf if you have an interest in reading them. First and foremost is the brief submitted by the American Bar Association which, if you didn't know, claims as members over 400,000 attorneys from all 50 states. I have been told that the ABA very rarely submits briefs of this nature but did so in this case because of the seriousness of the issue, not only in West Virginia, but across the United States. The organization has a model code of judicial ethics that it asks individual states to adhere to. The code actually focuses on the "appearance of bias" as much as it does "actual bias". Obviously, Brent Benjamin didn't get the memo and now he finds himself in direct conflict with 400,000 of his closest peers. It's pretty obvious that his rambling fifty nine page concurring opinion convinced no one at the ABA that his decision not to recuse was defensible. Along with the ABA's brief, the Brennan Center for Justice in conjunction with The Reform Institute, the Washington State Appellate Lawyers Association, Public Citizen's and the Committee for Economic Development all filed briefs on our behalf. What this group represents is a broad spectrum of political thinking. Public Citizens is Ralph Nader's organization and the Committee for Economic Development is a conservative based organization of business leaders from around the country. If these two diametrically opposed groups can agree on a cause, then you know that something is amiss in the West Virginia court system...particularly the Supreme Court. I am very grateful for the support these institutions have shown in filing these briefs.


Also, you may want to check out Larry Messina's blog (AP Reporter) from today. He has links to several of the news stories surrounding these filings. You can read it here.

Talk to you soon.

My Long Hiatus Is Over...For Now

Well, it's been a little over 2 months since I last blogged...it seems like 2 years. A lot has gone on this summer so let's catch up a little....

On July 2nd, Harman and myself filed a joint Petition For A Writ Of Certiorari in the US Supreme Court. Massey had 30 days to respond but naturally, they asked for and received a 30 day extension because for the fifth time in this saga, they have changed attorneys...at least that's their excuse this time. Any Amicus Briefs filed in support of our petition have to be filed by August 4th so, I will keep you updated on those. You can read the Appendix to the Petition here.

What came as a shock to most people were the two big decisions handed down by the WV Supreme Court in late May...just a few weeks after the Maynard defeat. First, the Tawney v. Columbia Resources case which I spoke about in my May 5th blog came as a no surprise to myself or any of our attorneys. Maynard paved the way for this one and Robin's husband, Scott Segal who represented the plaintiffs, stands to pocket a hefty portion of the forty percent in contingency legal fees....that's 40% of $400 million. Maybe Robin and Scott can upgrade their private jet now. Wonder if Spike gets to ride on it? Poor Chesapeake Energy. They got nothing for their campaign contributions to Spike.

The other high profile case was the Wheeling Pitt v. Massey case which the supreme court decided 5-0 not to hear. Wow! 5-0! I guess Brent Benjamin and Robin Davis sure showed Massey and all the world that they are unbiased and impartial when it comes to Massey. They really stuck it to them. Now don't get me wrong, the court got this one right. Massey deserved this decision. But, before anyone out there goes touting the upstanding moral and ethical character of Davis and Benjamin for their votes, just remember that these votes come on the heels of the public outcry over their handling of the Harman case...not to mention the Maynard fiasco. My personal opinion is that most likely they knew they were going to be in the minority on this one so they voted along with the majority in an effort to rehabilitate their already in the gutter public image. How transparent can you possibly get? It's called throwing away your vote.

Let's fast forward to this past Tuesday...when, out of the blue, Justice Benjamin decides to issue his Concurring Opinion in our case, which you can read here. I know what you are thinking. You're wondering why this guy waited nearly four months to issue a concurring opinion? Good question. Well, for one, he obviously waited to file it until after we had filed our Petition for Cert with the SCOTUS. That way, he got the benefit of peeking at our arguments and then doing his best to refute those arguments. Secondly, he is trying to clean up the mess that he and Davis and Maynard made of the Harman case by taking us through a 60 page maze that hopefully after you have read it, you will be so enamored with his verbose BS that you will reach the conclusion that he is the one of brilliant legal mind and we are all just a bunch of idiots who had this all wrong from the get go. It didn't work and it never will. When you read the opinion, you will notice one very strange omission on his part. That would be the small fact that Don Blankenship contributed over $500,000.00 to Benjamin's campaign. I guess that bit of information just slipped the Justice's mind while he was spending 4 months writing this so called opinion in which he blasts the appellees (that would be me) for daring to question his impartiality or even the appearance of it. So, in summation, it has taken Robin Davis and Brent Benjamin about 160 pages to justify their indefensible position to overturn this jury verdict. Let's hope that the Supreme Court of the United States sees through their charade.

Unanswered Questions

An article titled "In search of the puppeteer" appeared in the West Virginia Record's May 16^th edition which you can read here.

It struck me as strange the infatuation that the writers and editors of the Record have with just how the pictures of Don and Spike "surfaced" during our case against Massey Energy whose CEO is, as we all know now, Spike Maynard's long time buddy, Don Blankenship. Through a series of questions that were asked in the article, it is apparent that what the Record wants to know is, not only how in the world private pictures from a vacation spent in Monaco between two friends and their girlfriends could possibly become public but how they can make this the real story instead of the pictures and the individuals who are actually in them.

What I find equally as strange as the questions the Record asks is the questions that they don't seem at all interested in asking.…like the following :

• Just how did Spike and Don come to be vacationing on the French Riviera together?
  
• Why did Spike wait until five days before his trip to book his airline reservations and only two days before he left to reserve a hotel room?
  
• Why didn't Maynard disclose his trip and relationship to the parties involved in the case as he is required by the Code of Judicial Conduct ?
  
• Why didn't Maynard disclose gifts that he received from Blankenship as is required by the Code of Judicial Conduct? Remember, he admitted in a nationally televised interview that Don paid for at least one dinner and also said that it was no different from having dinner with Don in Charleston.
  
• Just when did Spike know that his and Don's vacation pictures were going to become public and how did he know it?
  
• Were members of the bar involved in some way? (Sorry, I stole that one from the Record)
  
• When is Spike going to release his phone and email records so that the public can see just who he was communicating with and when he was doing it? He himself said he "probably " would release them during the campaign. Obviously, another broken campaign promise.
  
• Why is the Supreme Court so vehemently fighting the release of Maynard's records but has no problem at all serving up Starcher's emails and phone calls? Isn't that a double standard?
  
• Because of his admitted friendship with Don that goes back years, why didn't he recuse himself from our case before the pictures were made public?
  
• And lastly, where is the Judicial Ethics Commission in all of this?
  

So, as you can see, there are a whole lot of unanswered questions regarding the photographs and the story surrounding them. After all, it was Spike who cast the original deciding vote that let his BFF Don's company off the hook to the tune of $75,000,000.00. Maybe it's me, but before we go digging into who was pulling backstage strings to "get" Maynard , maybe the Record and some other newspapers could help satisfy all of our curiosities by finding some answers to the questions I have posed above.

The Maynard Aftermath

Cleaning up from the political storm that caused Spike Maynard to be swept up and blown away from his cozy perch on the bench of our highest court:

The Charleston Gazette had an article yesterday on the Chamber of Commerce's opening of their checkbook on Spike's behalf that you can read here. In the article, Steve Roberts, the President of the State Chamber of Commerce was quoted as saying:

We're not completely surprised by the outcome. We made a conscious decision several months ago to follow this course and stay this course. We understood that in the Democratic [Party] primary, there were two seats and four candidates. Anything could happen. We congratulate all of the candidates for very hard-fought campaigns.Ultimately, we believe the outcome of the race will not be known until we get through the November election. We will reiterate our position that fair and balanced courts are necessary if West Virginia is to compete in a global economy.

I'm sorry but I find Robert's quote appalling and the membership of his organization should feel equally appalled. Roberts and everyone at the Chamber had to know that Maynard was essentially a "dead man walking" in this campaign. With his connections to both Don Blankenship and Spike, it wouldn't surprise me if he knew more about their relationship than most of us and he certainly was completely aware of the photographs and the vacation the two took together. Even with Maynard's unethical behavior being at the front and center of almost every media outlet, he made the decision to pour nearly $600,000.00 into his ill-fated campaign.

If Roberts and the Chamber's position is that a fair and balanced court is necessary in West Virginia then they should have denounced Maynard and his behavior, which was anything but fair, and put their support behind someone that was worthy of having the title of Supreme Court Justice.

If I was a member of the West Virginia Chamber of Commerce, I would be screaming for Mr. Roberts head for his complete lack of disregard in throwing their hard earned money down the drain...right along with Spike.

Ted Olson to Represent Harman

FOR IMMEDIATE RELEASE

(May 15, 2008) Harman Mining Company and its President, Hugh M. Caperton, today announced that Theodore B. Olson, a partner with Gibson, Dunn & Crutcher in Washington, D.C., has agreed to represent Harman in appellate proceedings before the Supreme Court of the United States. The principal issue that Harman will ask the High Court to hear is whether Harman was denied its constitutional rights by West Virginia Supreme Court Justice Brent Benjamin's refusal to step down from Massey's appeal of a $50 million jury verdict despite being the beneficiary of over $3.5 million in campaign spending after the verdict by Massey CEO Don Blankenship. Justice Benjamin twice cast the deciding vote to throw out the jury's verdict and to instead absolve Massey of liability arising out of fraud and improper business interference. Justice Benjamin also played an important role in the proceeding by hand picking judges to hear the appeal after Chief Justice Elliott "Spike" Maynard and Justice Larry Starcher disqualified themselves.

"This is a case that needs to be heard by the Supreme Court," Olson stated. "The improper appearance created by money in judicial elections is one of the most important issues facing our judicial system today. A line needs to be drawn somewhere to prevent a judge from hearing cases involving a person who has made massive campaign contributions to benefit the judge. We certainly believe that, in this case, acting Chief Justice Benjamin crossed that line."

Mr. Olson is one of the nation's premier appellate and United States Supreme Court advocates. He has argued 49 cases in the Supreme Court, including the case of Bush v. Gore stemming from the 2000 Presidential Election, and he has prevailed in over 75% of those arguments. Mr. Olson is the former Solicitor General of the United States and has served as private counsel to two Presidents, Ronald W. Reagan and George W. Bush.

Mr. Olson successfully argued the case of Aetna Insurance Co. v. Lavoie, 475 U.S. 813 (1986), the leading United States Supreme Court decision regarding the Constitution's requirement that judges with a personal interest in the outcome of litigation step aside from handling that case.

You can read Mr. Olson's profile here.

TAKE A BIG HIKE SPIKE!!!!!!

YYYYYYYYYYYYYYYYEEEEEEEEEEEEEESSSSSSSSSSSSSSS!!!!!!!!!!!!!!!!!!

SPIKE LOST...SPIKE LOST...SPIKE LOST...SPIKE LOST...SPIKE LOST...SPIKE LOST...

A message to Spike, the Chamber of Commerce, WVCALA, the Daily Mail,the WV Record and a few other newspapers around the state:

The citizens and voters of this state are pretty darn smart. They are well educated in the politcal game and they can smell a rat from a mile away. Shame on you all for thinking you could get away with this attempt to mislead West Virginia. All of the money you spent on Spike...and it was considerable...all went right down the drain along with Spike. This is a great victory for all of West Virginia because it shows that we the voters control and own the Supreme Court. The Justices that we elect are there to do the job we elect them to do. They work for us, not the other way around. It also shows that we are for fairness and that unfair individuals have no place in politics in our state.

A huge thank you to everyone who voted against Spike and the machine and also to all the volunteers of the candidates and to the candidates themselves for a job well done.

Why the red? Well, it's a red letter day here! Finally something good has come out of the shambles this court has left me, my family and my company in. The mission isn't complete but we got off to a fabulous start last night.

Oh by the way, did I mention that Spike Lost???? I love those words

Your Chamber of Commerce Dollars At Work

So far, as I reported in an earlier blog, Spike Maynard has raised and spent about $487,000.00 in his bid to get re-elected. That's only part of the story though.

The West Virginia Chamber of Commerce has spent nearly $600,000.00 on campaign ads in support of Maynard or against his opponents. What is as equally surprising is that, through their May 9th filing, they haven't spent a nickel on any other election according their Independent Expenditures/ Electioneering Communications Reports filed with the Secretary of States office which, you can read here (scroll down to the bottom of the page). I pity the poor candidates, other than Spike, who are running for other offices around the state that thought they would get money from the C of C in support of their "ideals". Sorry guys, not this time around. Spike sucked this well dry.

Another thing that is interesting about the list of organizations who are required to file is the absence of any filings by the West Virginia Citizens Against Law Suit Abuse. I can't wait to see how much they spent on Spike's behalf. I'm sure Don will give us a full accounting right after the election.

Don't forget to get out and vote...and make sure you vote to get rid of the unethical behavior that Spike Maynard has brought to this court for the last twelve years.