Summary of Chief Justice Benjamin’s Dispositive Voting Record 
Regarding Massey Energy Cases from 01/01/2005 to 12/31/2008

CHARLESTON, W.Va. – The following information was prepared by, and is being released by, the Public Information Office of the Supreme Court of Appeals of West Virginia. It was reviewed by lawyers who work for the Supreme Court to ensure its accuracy. It was prepared in response to press inquiries about Chief Justice Benjamin’s voting record in cases involving Massey Energy.

As broken down below and detailed in the attached table of Massey Energy-related votes, during his first four years on the Supreme Court of Appeals of West Virginia, Chief Justice Benjamin voted in five cases which were determined by full written opinions of the Court. He issued his own separate written opinions in three of those five cases. He also voted in three cases which sought writs of prohibition. And he voted in eleven petitions seeking full appellate review. In some of these cases, Massey Energy or its subsidiary was a petitioner/appellant. In others, Massey Energy or its subsidiary was the respondent/appellee.

Overall, Chief Justice Benjamin voted against the interests of Massey Energy or its subsidiary 81.6% of the time. Most of these votes occurred before the Caperton v. Massey Energy case was decided, and involve votes in cases which were decided by unanimous and non-unanimous votes of the Court. (Of course, in the rehearing of the Caperton case, Chief Justice Benjamin appointed two of the acting Justices after the recusal of Justices Maynard and Starcher and those two circuit judges split their decision, one voting for Massey and one voting against Massey.) According to information which was in the file or which was referenced in local news reports, all votes by Chief Justice Benjamin represented votes against the financial interests of Massey Energy of approximately $317 million.

Chief Justice Benjamin voted in favor of the interests of Massey Energy or its subsidiary 18.4% of the time. Of the five full written opinions of the Court during this time, the only case in which Chief Justice Benjamin voted in favor of Massey Energy’s interests was in Caperton v. Massey. The Caperton case appears to have represented the third-highest value of the Massey cases in which Chief Justice Benjamin voted, behind Wheeling Pittsburgh Steel v Central West Virginia Energy (valued at approximately $220 million, without interest) and U.S. Steel Mining Co., LLC v. Helton (valued at approximately $85 or more million).

The votes do not include such non-dispositive matters as votes on motions for time extensions, exceeding the page limitations on briefs, pro hac vice admissions, bifurcations, stays, etc. Identification of Massey subsidiaries was derived from Massey Energy’s SEC filing, form 10-K, filed 02/29/2008, the most recent filing of its kind. Valuations, where available, are based upon representations of the parties or representations from media.

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