The Supreme Court of Appeals of West Virginia has scheduled arguments in Caperton v. A. T. Massey Coal Co. for September 8 at 2 p.m. But according to the corporate appellees, there isn’t any need for further argument.

In a motion filed last month, Harman Development Corporation, Harman Mining Corporation, and Sovereign Coal Sales, Inc. asked the court to affirm the trial court’s judgment order because without Chief Justice Brent Benjamin’s vote in favor of Massey in April 2008, the vote would have been 2-2, which should affirm the underlying judgment. The corporations have also asked that Massey be required to post bond in the amount of $85 million, which is the approximate current value of the jury’s verdict and accumulated interest.

The corporations rely on West Virginia precedent that "[w]hen a justice is disqualified, and the result is an evenly divided court, the standard practice in West Virginia is to affirm the last official ruling in the matter," which they contend is the judgment order. They also argue that because the United States Supreme Court "reversed" rather than "vacated" the Supreme Court of Appeals’ order, the Supreme Court meant to "produce a directly opposite result from that obtained by the parties before this Court — entry of a judgment sustaining and upholding the judgment of the circuit court in favor of the Appellees."

If the court "chooses not to give effect to the prior vote in this case," the corporations maintain that "due process requires the Court to reconsider the prior decision of this Court to grant Massey’s Petition for Appeal which was granted by a 3-2 vote which included the now nullified vote of Justice Benjamin." 

Their rationale is that because three new justices have joined the court since Massey’s appeal was granted on April 4, 2007 by a 5-0 vote, and a fourth has been appointed to replace Chief Justice Benjamin, "these four individuals [should have] the opportunity to consider what portions, if any, of Appellants’ Petition for Appeal to grant, thus providing Appellees with the due process the high Court ultimately determined they were deprived of in the first instance."  

Here is the appellees’ justification for the Supreme Court of Appeals to review whether Massey’s petition for appeal should have been granted:

Corporate Appellees submit that it is the present Court — which includes only one justice who participated in the decisions relative to Massey’s Petition for Appeal almost three years ago — which must decide whether an appeal should have been granted to some, any or all of the issues raised by Massey. And, when it does, Appellees respectfully submit that it will see that the Petition for Allowance of Appeal was improvidently granted in the first instance, especially given that nothing about the verdict, as affirmed by Judge Hoke, cries out to be rectified. In fact, the opposite is true, as the various judges who have considered this matter have all agreed that the verdict was fully supported by the evidence. As stated in this Court’s first opinion on the merits of this matter: "At the outset, we wish to make it perfectly clear that the facts of this case demonstrate that Massey’s conduct warranted the type of judgment rendered in this case." (11/21/07 Opinion, p. 13.)

First of all, I wonder why Hugh Caperton, who is represented separately, did not join in this motion. But leaving that aside, the motion is interesting, but I don’t think the Supreme Court of Appeals is going to interpret the Supreme Court’s reversal as meaning that the judgment order should be affirmed without any further review on the state level. And likewise, the appellees’ argument that the decision to accept the petition for appeal should be reviewed, given the subsequent recusals, has some merit, but I don’t expect the court to start over — although its decision to review whether Massey’s petition should have been accepted would be consistent with the language in its opinion that Massey’s conduct justified the verdict.

In other legal news regarding Massey, it has withdrawn its lawsuit against the Supreme Court of Appeals, in light of former Justice Larry Starcher’s retirement from the court. Massey had claimed that the court’s recusal procedure was unconstitutional, in that it provided a litigant with no mechanism to challenge a justice’s refusal to recuse him or herself from an action.