West Virginia coal operator Hugh M. Caperton and Harman Mining, his company that was forced into bankruptcy, petitioned the U.S. Supreme Court on Wednesday afternoon to accept its appeal of a West Virginia Supreme Court ruling.

Caperton and Harman are challenging two state Supreme Court actions that overturned a $50 million Boone County jury verdict, now worth $76.3 million, against A.T. Massey Coal Co. for hijacking a coal supply contract Harman had to deliver coal to LTV steel mills in Pittsburgh.

The "appearance of bias" by Justice Brent Benjamin, the petition argues, has national implications that could affect supreme courts in 39 states that elect judges.

Don Blankenship, who headed A.T. Massey (later renamed Massey Energy), spent more than $3 million of his own money to buy television advertisements and other commercials promoting Benjamin's 2004 campaign against incumbent Justice Warren McGraw.

Caperton's lawyer, Theodore B. Olson, was U.S. solicitor general from 2001 to 2004 and has represented Presidents Ronald Reagan and George W. Bush personally.

"Blankenship spent that extraordinary sum of money - which represents more than 60 percent of the total amount spent supporting Justice Benjamin's campaign - while Massey was preparing to appeal a $50 million fraud verdict to the West Virginia Supreme Court of Appeals," Olson's petition states.

"After Justice Benjamin won the election and took his seat on that court, petitioners requested that Justice Benjamin recuse himself from Massey's appeal due to the unavoidable appearance of impropriety generated by Mr. Blankenship's multimillion-dollar campaign expenditures.

"Justice Benjamin refused to recuse himself, and then voted with the court's majority to overturn the verdict against Massey by a 3-2 vote," Olson states.

Benjamin voted with the court's first 3-2 majority against Harman in November.

Then in January, Harman's lawyers filed photographs showing Supreme Court Justice Elliott "Spike" Maynard and Blankenship together on vacation along the French Riviera in July 2006, while the Harman case was pending.

Then chief justice, Maynard stepped down. So did Justice Larry Starcher, who had criticized Blankenship publicly.

But Benjamin remained on the case, became acting chief justice and chose replacements for Maynard and Starcher. In April, Benjamin voted with the court's second 3-2 majority to overturn the verdict.

West Virginia coal operator Hugh M. Caperton and Harman Mining, his company that was forced into bankruptcy, petitioned the U.S. Supreme Court on Wednesday afternoon to accept its appeal of a West Virginia Supreme Court ruling.

Caperton and Harman are challenging two state Supreme Court actions that overturned a $50 million Boone County jury verdict, now worth $76.3 million, against A.T. Massey Coal Co. for hijacking a coal supply contract Harman had to deliver coal to LTV steel mills in Pittsburgh.

The "appearance of bias" by Justice Brent Benjamin, the petition argues, has national implications that could affect supreme courts in 39 states that elect judges.

Don Blankenship, who headed A.T. Massey (later renamed Massey Energy), spent more than $3 million of his own money to buy television advertisements and other commercials promoting Benjamin's 2004 campaign against incumbent Justice Warren McGraw.

Caperton's lawyer, Theodore B. Olson, was U.S. solicitor general from 2001 to 2004 and has represented Presidents Ronald Reagan and George W. Bush personally.

"Blankenship spent that extraordinary sum of money - which represents more than 60 percent of the total amount spent supporting Justice Benjamin's campaign - while Massey was preparing to appeal a $50 million fraud verdict to the West Virginia Supreme Court of Appeals," Olson's petition states.

"After Justice Benjamin won the election and took his seat on that court, petitioners requested that Justice Benjamin recuse himself from Massey's appeal due to the unavoidable appearance of impropriety generated by Mr. Blankenship's multimillion-dollar campaign expenditures.

"Justice Benjamin refused to recuse himself, and then voted with the court's majority to overturn the verdict against Massey by a 3-2 vote," Olson states.

Benjamin voted with the court's first 3-2 majority against Harman in November.

Then in January, Harman's lawyers filed photographs showing Supreme Court Justice Elliott "Spike" Maynard and Blankenship together on vacation along the French Riviera in July 2006, while the Harman case was pending.

Then chief justice, Maynard stepped down. So did Justice Larry Starcher, who had criticized Blankenship publicly.

But Benjamin remained on the case, became acting chief justice and chose replacements for Maynard and Starcher. In April, Benjamin voted with the court's second 3-2 majority to overturn the verdict.

In his petition, Olson stresses the national importance of issues raised by this case and argues a Supreme Court review is needed "to provide authoritative guidance to the lower courts regarding the circumstances in which due process requires recusal of a judge who has benefited from a litigant's substantial campaign contributions."

Blankenship's massive contributions, Olson argues, "created a constitutionally unacceptable appearance of impropriety that required Justice Benjamin to recuse himself."

Benjamin's failure to step down, Olson adds, violates "recusal standards" previously set by the Supreme Court itself and lower federal courts.

Benjamin also "denied [Harman and Caperton] their due process rights, and substantially undermined the integrity and reputation of the West Virginia judicial system."

Harman Mining was "forced into bankruptcy by Massey's fraudulent business practices," the petition argues.

Blankenship's campaign expenditures were "likely more than any other individual spent on a judicial election that year" anywhere in the nation, Olson states.

Most of Blankenship's money went to "And For The Sake Of The Kids," an "independent" 527 organization created to attack McGraw.

Judicial elections, and donations to judicial candidates, are a long-established method of choosing state judges, but, Olson argues, "there will be rare cases where campaign expenditures by a litigant create a constitutionally unacceptable appearance of impropriety.

"This is such a case - and it affords the [Supreme] Court an ideal opportunity both to clarify the circumstances in which due process mandates recusal and to restore the public's waning confidence in state judicial systems."

The U.S. Supreme Court is likely to make a decision in late summer or early fall whether to accept the Harman/Caperton appeal.

Other organizations may file "friend of the court" legal briefs in coming weeks.

Reach Paul J. Nyden at pjny...@wvgazette.com or 348-5164.