A word about Chief Justice Maynard in West Virginia

Bear in mind that among other things, this is my political blog. As such I will use this place to express opinions that some people won't like. I can live with that.

The noise about Justice Spike Maynard in the Massey Coal situation has gotten dangerously silly. He has been loudly criticized for voting on the appeal of a case against Massey Coal, apparently because he knows the CEO, Don Blankenship. His critics point to the fact that Chief Justice Maynard ran into Mr. Blankenship at a vacation spot in Europe.

I’ve practiced law in Fairmont for thirty years. I may be the most liberal "Joe Manchin Democrat" you know, so I’m hardly some conservative apologist. I disagree frequently with Justice Maynard’s rulings. I take lots of cases to the Supreme Court, and Justice Maynard votes my way 10 percent of the time, tops, and that will never change. Every time I present oral argument at the Court, Justice Maynard and I get into a heated debate with raised voices, sharp comments and honest indignation. However, the thought has never crossed my mind that Chief Justice Maynard’s rulings are motivated by friends, influences, or anything other than his honest opinion of the law.

If you look carefully, just about everybody complaining about the Massey case have very strong (multi-million dollar) financial interests in getting the ruling changed or very strong ties to other lawyers running for seats on the Supreme Court. To the critics, it comes down to dollars and cents, not sense.

Once I get past a little envy for Justice Maynard vacationing in Monaco, I find nothing at all evil about his running into someone he knows at a popular resort. The "secret photos" trotted out by the critics reveal what no one has ever bothered to deny, that Chief Justice Maynard knows Mr. Blankenship, and ran into him. This is West Virginia – If a judge goes to any meeting of a state-wide group, s/he will see lots of people s/he knows. And this is West Virginia. Everybody, judges included, acts politely and nicely when not in the heat of a case. If it is required that judges not deal with people they know, we need to get our judges from Idaho.

What has been missing from news accounts is any meaningful discussion of what really happened in the Caperton vs. Massey Coal case. While it’s a lot more lurid and scandalous story without having to bother with little things like the facts, maybe we actually should look at the Court’s decision:

1. The decision was written by Justice Davis, not Justice Maynard. Justice Benjamin also joined in the decision.

2. The decision does not kiss or kowtow to Massey. Justice Davis says in her opinion, "At the outset, we [including Justice Maynard!] wish to make perfectly clear that the facts of this case demonstrate that Massey's conduct warranted the type of judgment rendered in this case. However, no matter how sympathetic the facts are, or how egregious the conduct, we simply cannot compromise the law in order to reach a result that clearly appears to be justified." In other words, Massey did something bad, that’s obvious, but the law has to be applied as it is and not as we would like it to be in special cases. Hmmm - this is a Court. Isn’t it supposed to apply the law and not make stuff up as it goes along?

3. The Massey decision isn’t made in the absence of legal rules. It is based on a great deal of legal authority from many states, including West Virginia. That’s just another way to say that the Court followed the law.

4. The decision says that there are two independent reasons that Massey won, and that either finding required that Massey win the appeal:

a. Sophisticated corporations with lots of high-priced lawyers doing million-dollar deals entered into a contract which said that "All actions brought in connection with this Agreement shall be filed in and decided by the Circuit Court of Buchanan County, Virginia. . . ." We’re mad that Coach Rodriguez wants to back out of parts of his contract. Is Caperton somehow different?

b. The "same transactional facts" about the same contracts had already been disputed in Court in Virginia, and Massey won in Court there. The West Virginia Supreme Court determined that the case here should never have been filed at all in West Virginia. You get your "day in Court." These litigants had theirs, in Virginia and years ago.

Justice Albright and Justice Starcher voted against Massey. Justice Albright is a smart and sophisticated judge with a big concern for people and no patience for bull****. He stated that the decision was "a result-driven effort to excuse without penalty an egregious exercise of raw economic power which a West Virginia jury has found seriously injurious to the plaintiffs in the case, deserving of substantial redress under the law." He disagreed with the three-judge majority’s basis for favoring Massey: "The first reason, res judicata, [i.e., the case has already been decided in another Court] is the easiest to address because the majority is just flat-out wrong," and Justice Albright gives good reasons why he is convinced that the majority is wrong. Justice Albright also writes about the state-selection ruling and its bad effect on public justice: "In the long run, the more devastating effect of this particular part of the opinion is that it invites future litigants to attack West Virginia litigants' ability to sue in the courts of this State based upon "forum-selection clauses" to which such West Virginia litigants were not parties and had received only cursory notice, perhaps by small print in limited warranty notices or financing agreements. The point is that the majority erred in favor of the powerful and against the unsuspecting. The point is our citizens have been put in jeopardy of losing remedies our law provides, in favor of more restrictive remedies provided elsewhere because such "forum-selection clauses" will only be invoked by those seeking to avoid responsibility - as in this case." He concludes that "the majority has [ruled for Massey] by twisting logic, misapplying the law and introducing sweeping "new law" into our jurisprudence that may well come back to haunt us, or more likely, haunt the people we are duty-bound to protect under our law." Justice Starcher agrees with Justice Albright, and the other three justices voted for the majority. Sometimes, "majority rules" is a hard pill to swallow. I appeared before Justice Starcher a great deal when he was a circuit court judge. Nobody in Charleston has a larger heart, and he has a lot of guts to boot. He says that the Massey opinion "is morally and legally wrong," and cites reasons. He also goes toe-to-toe with Don Blankenship’s unjust criticism of him. It is Justice Albright’s and Starcher’s SWORN DUTY to disagree when they honestly think that the majority is wrong, and they did so with strong language and honestly held opinions. But it’s also Justice Davis’, Benjamin’s and Maynard’s SWORN DUTY to vote for an opinion that they thought was right. No one there was acting with dark and sinister motives, just honest disagreement.

Finally, Justice Benjamin has written a concurring opinion that sets forth his very detailed reasons for the decision. He concludes that "with due respect to my dissenting colleagues, this case does not present a close call on the basis of the rule of law. It simply does not." Justice Benjamin is another judge who votes against my cases a lot. He’s a really smart guy, knows a lot of law, and I don’t whine that he’s out to get me, he and I just disagree. Some years ago, another Justice, my great friend and mentor Frank Cleckley, made a ruling that cost me personally around $15,000. I was not overjoyed with that ruling, but I didn’t whine, because I knew that personalities and influence had zero to do with it.

In the strange science-fiction world where I would be a judge, I would have voted against Massey. I think that the LEGAL bases set forth by Justice Albright are the right ones, but that’s not an easy or obvious choice. No doubt, philosophy affects Court rulings, let’s not pretend otherwise. In the last campaign, ALL the candidates (including Chief Justice Maynard) were very upfront with their beliefs. The people voted. Don Blankenship played a farcical role in the last general election. And he would be an idiot to pour money into the MY campaign. But the Law would mean NOTHING if Don Blankenship couldn’t get just as fair a shake based on the rule of law as any other citizen because someone (or even everyone) doesn’t like him.

Justice Maynard is a public figure and he has signed up to be criticized publicly. If you want to say that he is wrong in this or that case because of your view of the law, that is fair criticism which he can’t complain about. But Justice Maynard’s critics should have the guts to say that they think he’s too conservative and tell the public that they should vote for the other person because s/he is more liberal or will rule differently on cases. By telling fairy tales and spinning conspiracy theories, Justice Maynard’s critics are trashing the truth.

You know, Justice Maynard has been a judge long enough that he could retire and start drawing a judicial pension. Then, based upon his reputation, he could go to work at a big law firm and make a few hundred thousand dollars a year for doing one-third of the work he does now. Justice Maynard is at the Supreme Court because he is an honest servant of the law. I will continue to present cases and all of the Justices will continue to make rulings honestly. Sometimes, I’ll win. Sometimes, I’ll lose. That’s the way it’s supposed to be. I much prefer to win, but "sometimes you get the bear and sometimes the bear gets you."

Pippa passes.

R