CHARLESTON, W.Va. - The U.S. Supreme Court is still trying to decide whether to take the appeal of a controversial West Virginia court decision.

The nation's highest court has been looking at the case for a month, and many lawyers are mystified that the court has not already accepted or rejected the appeal.

A decision could be announced on Monday.

Harman Mining and owner Hugh Caperton are seeking to overturn a West Virginia Supreme Court ruling in favor of Massey Energy.

In November 2007, justices voted 3-2 to throw out a $50 million Boone County jury verdict, now worth more than $76 million.

Lawyers for Caperton and Harman Mining argue Justice Brent Benjamin should have taken himself off the case because Massey Energy CEO Don Blankenship spent an estimated $3 million on his election.

The U.S. Supreme Court case could help determine when judges are expected to recuse themselves from cases involving a major campaign contributor.

Typically, Supreme Court justices decide to accept or reject all appeals discussed during a "Conference of the Justices," a private meeting held each Friday.

Only four votes are needed to accept cases for full review, while five votes are required to win cases before the nine-member Supreme Court.

Last month, the Caperton/Harman case was on the docket of three different Friday meetings: Oct. 10, Oct. 17 and Oct. 31.

Since it was on the agenda again last Friday, any decision by the justices should become public tomorrow morning.

Typically, the Supreme Court agrees to accept one or two new appeals, and to reject up to 200 other cases, at each Friday conference.

But the Supreme Court has not been ignoring the Caperton/Harman case, according to the SCOTUSblog, a Web site run by the Supreme Court itself.

After the Oct. 17 meeting, the court's Internet blog reported, "the Court examined but took no action on an appeal testing whether it is unconstitutional for an elected state judge to take part in a case involving the financial interests of a major donor to that judge's election campaign."

In November 2007 and April 2008, West Virginia Supreme Court Justice Brent Benjamin cast deciding votes in two different 3-2 decisions overturning the Boone County verdict against Massey for hijacking a Harman coal supply contract with a Pittsburgh steel company back on August 5, 1997.

Blankenship, Massey's president, personally spent more than $3 million in the 2004 election to help Benjamin defeat Democratic incumbent Warren McGraw.

Blankenship spent most of his $3 million funding "And For The Sake of the Kids," an independent 527 political organization that attacked McGraw, primarily through negative television ads.

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

CHARLESTON, W.Va. - The U.S. Supreme Court is still trying to decide whether to take the appeal of a controversial West Virginia court decision.

The nation's highest court has been looking at the case for a month, and many lawyers are mystified that the court has not already accepted or rejected the appeal.

A decision could be announced on Monday.

Harman Mining and owner Hugh Caperton are seeking to overturn a West Virginia Supreme Court ruling in favor of Massey Energy.

In November 2007, justices voted 3-2 to throw out a $50 million Boone County jury verdict, now worth more than $76 million.

Lawyers for Caperton and Harman Mining argue Justice Brent Benjamin should have taken himself off the case because Massey Energy CEO Don Blankenship spent an estimated $3 million on his election.

The U.S. Supreme Court case could help determine when judges are expected to recuse themselves from cases involving a major campaign contributor.

Typically, Supreme Court justices decide to accept or reject all appeals discussed during a "Conference of the Justices," a private meeting held each Friday.

Only four votes are needed to accept cases for full review, while five votes are required to win cases before the nine-member Supreme Court.

Last month, the Caperton/Harman case was on the docket of three different Friday meetings: Oct. 10, Oct. 17 and Oct. 31.

Since it was on the agenda again last Friday, any decision by the justices should become public tomorrow morning.

Typically, the Supreme Court agrees to accept one or two new appeals, and to reject up to 200 other cases, at each Friday conference.

But the Supreme Court has not been ignoring the Caperton/Harman case, according to the SCOTUSblog, a Web site run by the Supreme Court itself.

After the Oct. 17 meeting, the court's Internet blog reported, "the Court examined but took no action on an appeal testing whether it is unconstitutional for an elected state judge to take part in a case involving the financial interests of a major donor to that judge's election campaign."

In November 2007 and April 2008, West Virginia Supreme Court Justice Brent Benjamin cast deciding votes in two different 3-2 decisions overturning the Boone County verdict against Massey for hijacking a Harman coal supply contract with a Pittsburgh steel company back on August 5, 1997.

Blankenship, Massey's president, personally spent more than $3 million in the 2004 election to help Benjamin defeat Democratic incumbent Warren McGraw.

Blankenship spent most of his $3 million funding "And For The Sake of the Kids," an independent 527 political organization that attacked McGraw, primarily through negative television ads.

Caperton's lawyer, Theodore B. Olson, was U.S. solicitor general from 2001 to 2004 and has represented both 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.

Lawyers Bruce Stanley of Pittsburgh and Rob Berthold of Charleston also are representing Harman and Caperton.

Lewis F. Powell of Hunton & Williams, a law firm with offices in Washington, D.C., is representing Massey before the Supreme Court, as is D.C. Offutt of Huntington.

The New York Times and other publications have urged the Supreme Court to accept the Caperton case.

"Situations like the Massey Energy case create an unmistakable impression that justice is for sale," the New York Times editorial said. "The United States Supreme Court should add the Massey case to its docket for the upcoming term and throw out the court's tainted ruling."

So have various legal groups, including the American Bar Association and the Brennan Center for Justice at the New York University School of Law.

In its brief, the ABA stated it "believes that the facts and circumstances of this case demonstrate the need for guidance from this Court as to the applicable constraints ... where a party has contributed significantly to the judge's election campaign."

The Brennan Center brief states, "The last decade has seen an explosion in campaign expenditures in judicial elections. This case provides the Court with a clean vehicle to address an important constitutional issue ....

"The amount of money, the sole interested source [Blankenship] of the funds, the timing of the expenditures and the other facts of this case are so egregious," the brief argues, "that this case offers the Court the ideal opportunity to offer much needed guidance on one of the most fundamental rights in any system of law."

If the Supreme Court accepts the Caperton case, its decision could create rules for campaigns in 39 states that elect Supreme Court justices.

In her Oct. 10 article in Slate, reporter Amanda Frost called the Caperton/Harman appeal "the crazy judicial corruption case that the Supreme Court should hear."

States should not necessarily scrap elected justices for appointed justices, even though justice appears to be sale in cases like this, Frost argued.  

"States are not about to scrap judicial elections, nor should they necessarily. The problem is not that judges are elected; it is that states insist on treating elected judges as if they are immune to the conflicts of interest that come with running for public office."

In May, Massey lost an appeal it filed with the West Virginia Supreme Court in another coal contract dispute.

In July 2007, a Brooke County jury awarded $219 million to Wheeling-Pittsburgh Steel Co. against Massey and its subsidiary, Central West Virginia Energy Co., for failing to make monthly deliveries of 104,000 tons of coal under a long-term supply contract with the Northern Panhandle steel producer.

That verdict is now worth $275 million, with interest. Massey has filed a petition to the U.S. Supreme Court, asking it to throw out $100 million in punitive damages. The Supreme Court might decide whether or not to take that case later this month.

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