Several Gazette readers, and at least one Web site commenter, wondered today why Chief Justice Brent Benjamin was taking part in a pending appeal over whether the West Virginia Supreme Court must release e-mails between former Justice Spike Maynard and Massey Energy President Don Blankenship.
As recounted in today’s paper, The Associated Press is challenging a decision by Kanawha Circuit Judge Duke Bloom to withhold from public release eight of 13 electronic messages between Maynard and Blankenship.
Why Benjamin didn’t recuse himself seemed like a reasonable question, given the fact that the U.S. Supreme Court earlier this year ruled that Benjamin should have stepped down from another Massey case because of Blankenship spent millions of his own money on an independent campaign to put Benjamin on the court.
I asked Jennifer Bundy, the Supreme Court’s media spokeswoman, if Benjamin considered recusing himself and if so, why he didn’t. She responded:
No one asked for the disqualification of any justice, nor was there any suggestion that any member of the Court not hear the case.
But did Benjamin consider stepping down from this case on his own, to avoid any appearance of a conflict? Bundy said:
The case is pending in the Court. It is inappropriate for any member of the Court to comment about it.
Not for nothing, but West Virginia’s Code of Judicial Conduct does not contain an absolute prohibition on judges or justices commenting publicly on pending cases.
Rather, the Code says:
Except for statements made in the course of official duties or to explain court procedures, a judge shall not make any public or nonpublic comment about any pending or impending proceeding which might reasonably be expected to affect its outcome or impair its fairness.