Monday, February 11, 2013

Bruce Stanley's got an enormous chip on his shoulder that nothing can knock off. He's enraged that the legal and political system is his native state of West Virginia is so corrupt that the bad and the compromised often float to the top of the system while the true and the caring are just as often endlessly stymied. For the past 15 years, Stanley and his fellow Pittsburgh co-counsel Dave Fawcett have been fighting a two-person war against Don Blankenship, the chairman of Massey Energy, until its demise as the largest coal company in Appalachia.

Stanley has fought in new, different ways using the law as it has not been used before. In 2006 Stanley filed a lawsuit on behalf of Delorice Bragg and Freda Hatfield, widows whose husband had died in a fire in the Massey-owned Aracoma mine in January of that year. It was a fire that happened because of Massey's egregious violations of state and federal mine safety regulations. Mandatory safety drills never took place though they were written up as if they had. The fire hoses in the mine near the fire did not work properly. The ventilation system had been compromised, fanning the fire's flames and filling the miners' primary escape way with roiling black smoke. While there were no criminal indictments of Massey executives, Aracoma paid massive fines and Stanley won a big settlement for the widows.

Stanley didn't stop there. He believed that the federal safety inspectors shared in the blame. He was convinced that they had either been bribed, had willfully looked the other way, or acted with criminal irresponsibility. But you can't just sue the federal government in a case like this. First, he filed an administrative claim with the U.S. Department of Labor. Anybody who knew anything about the law said that this was just Stanley off on his personal vendetta and he would get nowhere.

Showing its disdain for his apparently frivolous claim, the Department of Labor did not even bother to rule. After waiting two years with no answer, Stanley filed a civil suit against the U.S. government in Charleston, WV. Federal Judge John T. Copenhaver Jr ruled the way anyone in the West Virginia capital could have told Stanley he would rule. He agreed with the feds and dismissed the claim.

Stanley is not a ranting legal lunatic but a sophisticated, well-versed attorney. He appealed to the United States 4th Circuit Court of Appeals, arguing that West Virginia law allows precisely the claim that he was seeking to make. All he asked -- if the court wasn't sure of the right and wrong of the issue -- is that they send it back to the Supreme Court of West Virginia for those five justices to decide. The federal judges agreed with him and last October sent the case to the West Virginia Supreme Court.

This is where he should have expected it to end. In my forthcoming book, The Price of Justice, to be published in May, I detail the corruption of the Supreme Court of West Virginia and its many disservices to the people of West Virginia. Stanley had taken on the court before, and there was no way the five justices were going to vote in his favor. Or so I thought.

Earlier this week the court voted 5-0 that "a safety inspector owes a duty of care to the employees whose safety the inspection is intended to secure." That may have been self-evident but it was an extraordinary moment that could prove one of the most important outcomes of the years of struggle against Massey.

Some people think the justices know what is coming out in The Price of Justice, and they are now trying to position themselves as true servants of the people and of justice. I don't know that that's the case. I do know that it's not only Bruce Stanley who has a victory here, but all the miners of West Virginia and anyone who cares for justice for everyone and who believes that no man is above the law.

The case goes back now to 87-year-old Judge Copenhaver who will have yet another chance to prove that he understands the nature of justice by finally allowing the Aracoma widows to call the US government to account.

Wednesday, February 6, 2013

Catherine "Kitty" Hougton and The Preciousness of Life

There is no greater gift than to know the preciousness of life. Once you realize it, every moment is enhanced and however long you live, you have a far longer life. Of all the people I have known, the person who grasped that essential fact the youngest and perhaps the most fully was Catherine "Kitty" Houghton. Kitty was an ebullient presence who danced through life as if in a dream, helping those who needed help and admiring the abilities and achievements of those who fell far short of her attainments, always with her sparkling, inquisitive eyes finding in life nothing but endless far horizons.

Kitty and I were Peace Corps Volunteers in Nepal from 1964 to 1966. We were stationed in different parts of the kingdom in remote mountain villages several days from a road. You cannot live among the Nepalese without grasping one reality: When you die, your body may be burned in a pyre, but your spirit lives on, meshing with the world. I've thought of that reality often these last few days as I read the stories of how 70-year-old Kitty died. It reminds me that her manner of death doesn't matter, for in Nepal, you learn that individual life is but an instant over which we have the illusion of control, but life takes us and does what it wants with us -- and one day bids us goodbye.

Kitty never did just one thing, but several, each with passionate intensity. Last week, she flew across the country from her home in northern California to attend a board meeting of the White Mountain School in New Hampshire, where she attended high school. She was in the lobby of the Hampton Inn in Littleton, moving gracefully onward from one event to the next when a man came into the hotel and stabbed her to death. The sick, conspiratorial American mindset took hold and among the comments to the news stories are several about how Kitty must have known the 37-year-old man. No, she did not, it was a random knife in the night, and the man sits in jail pleading not guilty.
Kitty's unique quality had little to do with her Ph.D., the fourteen languages that she spoke, the superb skier that she was at the top of her Berkeley collegiate team, how she flew her small plane around the country the way you and I drive our cars, her abilities as a singer and musician, nothing about her accomplishments as top commercial officer in the Foreign Service.It was the human character. At the center of her personality was a profound modesty, unlike anyone I have ever known. I'm not talking about a studious, calculated modesty so useful in a career. I'm not talking about insecurity. I'm talking about someone who grasped her place in the universe. It was the mindset we all should have.

Beyond that -- and this was something that sometimes personally embarrassed me -- she was in awe of the accomplishments of others. She could do ten awesomely good things and I might do one, but it was my act she wanted to talk about and praise. She did some of the most daring things, but it was whatever I did that she insisted on talking about.

When Kitty and I went to Nepal in the Peace Corps in 1964, it was a time when it was unclear whether Americans could live in a place like the impoverished mountain kingdom and whether the Peace Corps was a short-lived quixotic idea or something that could live. It took a certain gumption for a young man to sign up and go to Nepal, but in those years, it took far more than that for a young woman to do so. Nothing troubled Kitty. Even in our training program in Oregon, she was always looking out for others, seeing how she could help.

I can still see Kitty in Kathmandu, when she got her assignment to one of the most remote and difficult of places. I can see her strapping on her Kelty pack and with that knowing smile that never seemed to leave her lips, heading off to face whatever life and fate would bring her. And so she did last week.

Tuesday, January 1, 2013

Blankenship goes down

I'm convinced that within the next two or three months Don Blankenship,  the retired head of Massey Energy, will be criminally indicted.  US Attorney Booth Goodwin has been working his way up, indicting and convicting one subordinate after another.  

The Justice Department's assertion that they are going after a conspiracy makes no sense without Blankenship indicted.  There were DADS Root Beer mugs at many Massey mines.  DADS stood for "Do as Don Says," and that's exactly what his subordinates did. 

If Blankenship is indicted and convicted, Goodwin will be so popular that he will likely be the Democratic candidate for the US Senate in 2014.  He will have the chance to become the new political force that West Virginia desperately needs.  

Tuesday, October 16, 2012

I'm writing a piece for Newsweek now and waiting to get the copyedited manuscript to my new book The Price of Justice. It's coming tomorrow and it's the last step. The cover looks fantastic. I'll post it on my website as soon as I get the final copy. And things look great. Although the book is finished, the case I'm writing about goes on. Dave Fawcett argued the appeal on Caperton before the Virginia Supreme Court today, and tomorrow Bruce Stanley argues before the Supreme Court of Appeals of West Virginia his possible historic case that victims should be able to sue the federal government when mine safety officials fail to protect miners. I wish I could be there for that one. I don't know how Justice Davis has the audacity not to recuse herself. At least Justice Benjamin realized he had no business hearing the case.

Tuesday, October 9, 2012

The Miners are screwed

A friend of mine sent me an article about a rally planned next week of coal miners and their friends. It sounds like it will be quite something, people lined up for miles. From the description the event sounds like a prayer vigil or a kind of witnessing. It seems to have nothing to do with politics but is an almost desperate reaching out hoping to save their jobs and their way of life. My friend thought I might like to go. I find it so immensely sad that I would not want to be there. The fact is that the richest, thickest seams of coal are gone and the price of natural gas is brutally low and in all likelihood the coal industry in Appalachia is in the beginning of long, steady decline. Ken Ward in the Charleston Gazette has been writing about this for years in one impeccably researched story after another. But nobody listened. Not one politician has had the profile in courage to stand up and to talk about the need for a different kind of economy. Of course, it's not the politicians sitting in Washington who will be hurt. Nor will the top coal executives who don't even live in coal country. It's the average person who will suffer. Nothing's going to save this dying world, not speeches, not prayers, not exhortations. The people of coal country have been duped for years. I'm sorry but that's the way it is.

Saturday, February 12, 2011


As I begin to research my book about Caperton vs. Massey, one of the strangest things is the attitude of so many people about coal.  They sit there in front of their computers running on coal-generated electricity in rooms lit up by coal-generated electrcity, looking out on almost everything before them that has in some measure benefited from coal energy.  And yet they have this idea that coal is dirty and the coal business in dirty and anybody who gets near to it is soiled.  One of the few journailsts to see it in a different way is James Fallows who wrote a terrific piece in the Atlantic about coal, a realistic essay about the role that coal will inevitably have in the forseeable future. 

I think about the  only acceptable prejudice left in American life is toward southern accents expecially if they're from West Virginia or Kentucky.  Anybody who sounds like that just has to be stupid.  And if you've got a New York accent, you've got to be smart.

Saturday, February 5, 2011


Recently 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.