Sustained Outrage

Spelter smelter case hits the Supreme Court


This undated file photo provided by Jean Sartoris shows a zinc-smelting operation from Sartoris’ back yard when the plant was still in business in Spelter, W.Va.  AP photo.

The West Virginia Supreme Court will hear arguments Tuesday afternoon in a huge case over pollution of the Harrison County community of Spelter with toxic chemicals from a former zinc smelter.

A local jury previously awarded nearly $400 million in damages against DuPont Co., in a case that has gotten national headlines and fueled all sorts of interest — including that of Gov. Joe Manchin, who filed a friend-of-the-court brief asking justices to review the verdict.

Briefs in the case are available online here.

And it’s important to note that the court is actually hearing 3 appeals: One by DuPont that seeks a new trial, another by DuPont over a ruling that forced it to cover all potential liability for another of the site’s former owners, and a third filed by nearly 200 property owners who said the trial judge wrongly left them out of the lawsuit.

You can watch the arguments online at the court’s Web site.

Justices have set aside more than two hours for the arguments … so stay tuned.

State Bar Irony: Brent Benjamin and equal justice


The W.Va. State Bar has a slick new glossy look for its magazine, The West Virginia Lawyer.

But the cover and feature story in the new edition might strike some members of the legal profession as a bit ironic…

“Equal Justice for all must be more than just a catchphrase,” says the quote from Justice Brent Benjamin that’s included in the story and on the cover.

Why would anybody find that ironic?

Well, remember that the U.S. Supreme Court is currently considering whether Benjamin violated the due process rights of coal operator Hugh Caperton and his company, Harman Mining, by refusing to recuse himself from a case that pitted Caperton against Massey Energy, whose CEO, Don Blankenship spent millions of his own money to help Benjamin win a seat on the court. (See previous posts here, here and here).

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That didn’t take long

On Tuesday, the day before state Supreme Court Justice Joseph Albright was laid to rest in Parkersburg, I got an unsolicited e-mail from a public relations flak in northern Virginia, judging from the 703 area code on her phone number. The e-mail offered to put me in touch with “a West Virginia legal expert on the type of jurist Governor Manchin should select to fill the high court vacancy.”

Curious as to who would have hired a p.r. firm regarding Albright’s replacement, I called CRC Public Relations and asked who their client is, and they told me: the Federalist Society, a conservative legal group that, according to, at least, advocates a strict originalist interpretation of the U.S. Constitution. Philosophically, I was told, the Society’s 40,000 or so members believe in judicial restraint over what they see as judicial activism, or, as the Society’s Web site says, that “it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.”

All three of the local lawyers quoted in the e-mail — Blair Gardner, Luke Lafferre and Robert Ryan — are members. In fact, “Booter” Ryan is one of two attorneys listed on the group’s site as contacts for the West Virginia chapter.

(Astute readers will note that Gardner’s bio on Jackson Kelly’s Web site doesn’t say that he is a member. I called him and asked him, and he confirmed his association with the Society.)

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Two women and a baby

Fayette County Circuit Judge Paul M. Blake maintains that his decision to remove an infant from her foster parents, who happen to be lesbians, didn’t have anything to do with sexual orientation.

And Anthony Ciliberti, who represented Kathryn Kutil and Cheryl Hess in their appeal of Blake’s ruling to the state Supreme Court, said Kutil “didn’t want to become a poster child for anyone’s cause.”

But the debate over whether “traditional” families, to use Blake’s term, (although he explained in a footnote that he meant “two-parent” rather than “single-parent” households), are the best option for adoptive children is attracting attention from gay and lesbian groups.

The case has drawn coverage from,  GO Magazine, and

You can also see a report from the Christian Broadcasting Network here.

And in addition to filings on behalf of Kutil and Hess, the child’s court-appointed guardian, the state Department of Health and Human Resources and Judge Blake, the case drew friend of the court briefs from the American College of Pediatricians, the Family Policy Council of West Virginia, the American Civil Liberties Union, the National Association of Social Workers and the Foster Care Alumni of America.

During the arguments, Chief Justice Brent Benjamin said that the case was specifically about what was best for this particular child, not children in general, but it seems likely that the case will have broader implications.

Doth Chesapeake protest too much?

Remember how Chesapeake Energy folks complained (is whined too strong a word?) about the 2007 Roane County Circuit Court jury award of about $404 million in compensation and penalties?

In the class-action “Tawney case,” people who sold natural gas to Chesapeake and its predecessors — Triana Energy, NiSource Inc. and Columbia Natural Resources — alleged they were cheated out of some of their royalty payments, and the jury agreed.

Chesapeake CEO Aubrey McClendon, in his parting shot at the state last month, said the W.Va. Supreme Court’s refusal to hear an appeal of the Tawney case had a lot to do with the company’s decisions to cancel plans to build a $40 million regional headquarters in Charleston and, ultimately, eliminate 215 valuable jobs here.

You might logically conclude Chesapeake was forced to fork over $404 million to its gas lease-holders and their lawyers. You would be wrong.

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mbowling2.JPGCross Lanes computer exec Martin R. Bowling was an expert at creating “buzz” and promoting people — including himself — on the Internet.

So when news broke earlier this week that Bowling, chief technical officer at Comar Inc. and Vec3,  had been sentenced to three years in state prison on computer fraud charges, many people who knew Bowling just figured it was part of some elaborate hoax he concocted.

Bowling’s supporters called and e-mailed the Gazette yesterday, questioning — and insisting, in some cases — that the Bowling story was a hoax.

Well, we’re here to tell — and show — you this wasn’t a hoax. Here are the documents filed in Bowling’s criminal case file in Kanawha County Circuit Court (thanks to Gazette reporter Ken Ward Jr. for scanning and uploading them.)

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Domestic violence and the legislative process

gun.jpgRecently I’ve been attending meetings of the state Supreme Court’s “New Technology/Technology Improvement Subcommittee — Grants to Encourage Arrest Policies & Enforcement of Protection Orders Grant Committee,” i.e. the group tasked with getting the domestic violence protective order electronic database up and running.

It’s a complicated process, to say the least, made only more so by the strict requirements for submitting local information in the National Crime Information Center. (A statewide registry, which the Legislature ordered the State Police to create way back in 2001, would represent a huge step forward, but also plugging West Virginia’s information into the nationwide network gives law enforcement throughout the country immediate, 24/7 access to a list of protection orders, and who might be violating them.)

As of the last meeting on Feb. 25, three counties are feeding electronic registry information to NCIC. (Look for a big press conference announcing the registry’s progress next week.) Court officials and other committee members won’t set a date for when all 55 counties will be up and running, but it looks to be months away at the earliest.

In the meantime, two bills have been introduced during the current Legislative session to help streamline the registry and empower law enforcement to seize any guns in possession of someone being arrested for violating a protective order.

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Cheating Chesapeake shareholders?


We had a mention in Gazette Business Editor Eric Eyre’s story on the loss of 215 Chesapeake Energy jobs in Charleston of a class-action lawsuit against the company,CEO Aubrey McClendon (above), its officers and directors on behalf of Chesapeake’s shareholders.

Over at the West Virginia Business Litigation blog, Jeffrey V. Mehalic has posted a copy of the lawsuit, which Mehalic reports “alleges various securities laws violations that have caused Chesapeake’s stock to drop 80% from its offering price in July 2008.”

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Show us the money

Last month, as my colleague Doug Smock on the sports desk reported, Marshall University reached a settlement with former compliance director David Ridpath. Ridpath, you may recall, sued the university, former football coach Bob Pruett and other officials, maintaining they turned him into the scapegoat for major NCAA violations within the athletic department.

Roger Forman, Ridpath’s lawyer, told the Gazette that Marshall had agreed to write a letter to the NCAA clearing Ridpath of responsibility for the violations that landed the school on probation. Oh, and there was an undisclosed cash settlement.

U.S. District Judge Robert C. Chambers signed an order on Feb. 2, giving the parties 30 days to iron out the details and submit an agreed order of dismissal for his approval. Barring that, Chambers is free to dismiss the Ridpath case without prejudice, meaning the parties would have to refile to get the case reinstated on Chambers’ docket.

That was 32 days ago.

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The Benjamin-Blankenship transcript

blankenshipap.jpgbenjaminap.jpgThe transcript of today’s oral argument in the Brent Benjamin-Don Blankenship case before the U.S. Supreme Court has been posted online here.

And here’s some early analysis from SCOTUSblog:

Tugged between a sense that a constitutional ruling on judges’ duty to take themselves out of cases if bias is suspected should provide very clear guidance, and a sense that it might be written only to apply in the most extreme factual scenarios, the Supreme Court set itself a difficult task as it moves toward a ruling in Caperton, et al., v. A.T. Massey Coal Co., et al. (08-22), heard Tuesday during an intense hour of exchanges with two harried advocates.

While Justice Anthony M. Kennedy may wind up with the deciding vote in a Court plainly split over the issue, he himself seemed torn between a standard of recusal that would be precise in scope, and a standard that would be no more specific than “an appearance of bias.”  And the bloc of Justices whose votes would seem to be necessary to craft any constitutional decision on recusal focused on ways to make it at least fit this particular case, but perhaps no others.  One of those Justices, John Paul Stevens, remarked at one point: “We have never confronted a case as extreme as this before.”

It was obvious that Chief Justice John G. Roberts, Jr., and Justice Antonin Scalia were leaning heavily against writing a new constitutional rule on recusal, and it also appeared that Justice Samuel A. Alito, Jr., might wind up at that conclusion, too.

On the other side, Justice Stevens’ seeming perception that something had to be crafted to deal with situations like that involving an elected justice of the West Virginia Supreme Court might well be shared by Justices Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter.