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Plugging a Weasel Hole in West Virginia

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Yesterday the West Virginia House of Delegates plugged what Associated Press news editor Brian Farkas called a "weasel hole." In doing so the elected officials by a unanimous vote asserted their rights as the people's representatives over a West Virginia Supreme Court corrupted by money and power. They delegates said that from now on the five justices cannot claim an exemption from the state's Freedom of Information Laws.

If there is one man who deserves credit for this important legislation that now must pass the West Virginia Senate, it is Hugh Caperton, who, for the past thirteen years, has been fighting a legal struggle against Massey Energy, the largest coal company in the state, and its CEO, Don Blankenship.

Massey Energy drove Caperton's small mine into bankruptcy in 1998. Caperton sued and he and his Harman Coal Company won a $50 million verdict in the circuit court in 2004. Massey Energy appealed to a West Virginia Supreme Court that Blankenship turned into an instrument to do his bidding. He spent over $3 million electing a conservative corporate lawyer, Brent Benjamin, to the high court. In a landmark ruling, the United States Supreme Court said that a plaintiff in a lawsuit cannot contribute large amounts of money to a candidate who will then vote on his case before the court.

Benjamin had to recuse himself, but Blankenship had not limited his largess to one justice. Blankenship had an even more special relationship with Chief Justice Elliot "Spike" Maynard. As the case was before the court, Blankenship and Maynard vacationed together on the French and Italian Riviera with their girlfriends. When photos of the two happy couples mysteriously showed up in Caperton's attorney's office, the judge had to recuse himself. But the court, nonetheless, for the third time voted against Caperton, citing an obscure procedural error.

The AP sued under the Freedom of Information Law to get hold of the emails between Blankenship and the chief justice. These emails may show evidence of bribery or they may show nothing at all. But they are a crucial part of the public record. The West Virginia Supreme Court ruled that the mails must remain private.

In West Virginia, the political system has in many respects failed the people, and the courts have become the last refuge of true justice. Plaintiff lawyers are often not the most heroic of figures, but they are the ones standing up and taking on companies that have hurt the people of the state and needlessly damaged the beautiful hills. But what happens when justice can be bought? What happens when the highest court in the state is a repository for the lowest political motives? Where is justice then?

The House of Delegates is telling the people of the state that their elected officials are the true guardians of justice. There is restlessness in West Virginia now. Since 29 miners died in Massey's Upper Big Branch mine last April, Blankenship has been pushed into retirement. People are waking up to the damage Massey Energy did to all kinds of people in all kinds of ways. The politicians can feel the ground moving under their feet, and they are rushing to get ahead or be trampled.