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Justice 'frustrated' by court's handling of Massey case

CHARLESTON, W.Va. -- Justice Robin Davis said Friday that "words cannot express how frustrated" she is by the West Virginia Supreme Court's handling of a lawsuit that institutional shareholders filed against Massey Energy officials after the Upper Big Branch Mine disaster.

Davis, in a dissenting opinion, blasted former Massey officials for their "devil-may-care attitude" about mine safety and said she is "dismayed" at the way fellow justices handled the matter.

In the case, lawyers for the Manville Trust and the California State Teachers Retirement System -- shareholders of Massey -- alleged that company managers violated a 2008 legal settlement to improve the coal giant's safety practices.

"Countless other West Virginia coal miners undoubtedly also have been injured and endangered by the Massey Board's failure to do what it said it would, what it has been told by the circuit court to do, and what it is required to do under mine safety laws," Davis wrote in her five-page opinion.

"Regretfully, however, the majority's decision in this case not only forgives the Massey Board for its misdeeds, but also fails to hold accountable those individuals whose callousness cost 29 miners their lives -- men who went to work one day at the Upper Big Branch Mine and who were prevented from returning home to the families waiting for them," Davis wrote.

Lawyers for the shareholders had asked the Supreme Court to overturn a 2011 dismissal of their case, which they brought against various Massey executives and board members after the April 10, 2010, explosion at Upper Big Branch.

The case was brought on behalf of the corporation against company leadership in what's known as a "derivative" action.

However, Kanawha Circuit Judge James Stucky had ruled that the Massey shareholders no longer had standing to bring such a case, citing the purchase of Massey in June 2011 by Alpha Natural Resources. The Supreme Court, by a 4-1 vote, said Stucky was right.

The Supreme Court's 24-page opinion, issued Sept. 13, was written by Justice Menis Ketchum. Chief Justice Brent Benjamin recused himself, as he does all Massey cases. Former Massey CEO Don Blankenship ran an independent campaign that helped Benjamin win election in 2004.

Former Justice Tom McHugh took Benjamin's place.

Davis recused herself when the Supreme Court considered a May 2011 request by the Massey shareholders to block the Alpha buyout.

At the time, Davis said her husband, Charleston lawyer Scott Segal, was involved in litigation stemming from the Upper Big Branch disaster. It was not clear why she did not recuse herself from the most recent case, but most of the Upper Big Branch litigation has since been settled.

In her dissent, Davis said she is "dismayed" by the court's decision that it does not have jurisdiction over the merger, allowing the matter to instead by resolved by a Delaware court.

"I am disappointed that my colleagues did not appreciate the impact that their ruling would have upon Manville's continued quest to do right by the coal miners of this state and to hold accountable those Massey Board members and officers who failed to follow through on their promises," Davis wrote.

Davis also wrote, "Since this state's inception, the coal mining industry has been recognized as being of preeminent importance to the citizens of West Virginia.

"It goes without saying that West Virginia coal mines allow many West Virginians to earn a livelihood, contribute significantly to the state's economy and infrastructure, and are a near-constant topic of legislative concern," Davis wrote. "Therefore, I cannot fathom why the court would defer ruling on a matter of such grave concern to this state that ultimately would impact the enforcement of mine safety regulations against a mining company with such a pervasive presence in and impact on this state and its citizens."

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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