CHARLESTON -- The tug-of-war between defunct Harman Mining and Massey Energy Co. will draw nearer its close March 3 after 12 years of litigation.

The U.S. Supreme Court is scheduled to hear Hugh M. Caperton, et al. v. A.T. Massey Coal Co.Inc., et al., and consider whether Caperton’s 14th Amendment due process rights were violated. Caperton owns Harman Mining.

No other issues from lower court cases will be considered.

Judges nationwide could be affected by state Supreme Court of Appeals Chief Justice Brent D. Benjamin’s decision not to recuse himself in the Caperton case if the U.S. Supreme Court decides in Caperton’s favor.

Caperton’s brief said Benjamin’s decision creates a rift in how recusals should be handled among lower courts and threatens public confidence in state and court systems nationwide.

The case could form a basis for a policy about when judges and justices have to recuse themselves because of an appearance of impropriety and bias, not just provable bias. Benjamin has stated in briefs that appearance of impropriety can never be a basis for a judge’s recusal.

A majority vote on the nine-member court is needed to win the case.

The court takes about 75 cases a year out of about 9,000 petitions, said Theodore Olson, an attorney for Hugh Caperton and Harman Mining.

Olson said he will argue that the Constitution’s due process clause guarantees someone who goes to court will have a fair trial before a fair tribunal.

“When the judge handling a case has received that much money directly from the other side for candidacy for office, it would lead anyone to think they want someone who doesn’t have that potential bias,” he said.

Olson has argued 52 times before the court.

He said the decision will determine whether the court places some limit on when a judge can hear a case where financial backers have been involved.

Attorney Andrew Frey will argue for Massey Energy. He has argued before the court 64 times.

Frey said a decision against Massey will produce far more recusal motions on all court levels, clogging up the judicial system.

“There is no problem crying out to be fixed,” he said. “There are statutes and judicial codes of ethics that govern the subject. Each state has a different system and set of rules.”

In the lower courts, Caperton and his company sued Massey, winning $50 million in Boone County Circuit Court, a decision that was twice reversed in the state Supreme Court.

“They wanted the customer and coal, and the jury found that they did it in an improper manner,” said Robert V. Berthold Jr., an attorney for Hugh Caperton.

Former Chief Justice Elliott E. Maynard ruled in the first case, but he recused himself after photographs were published of his vacation with Don Blankenship, CEO and then-president of Massey Energy, on the French Riviera.

Benjamin, acting as the chief justice, cast the deciding vote in the second 3-2 decision. Benjamin subsequently entered a concurring opinion defending his refusal to step down from hearing the case.

In the original case, Caperton alleged Massey drove his company out of business by buying up a middleman company that purchased Harman Mining coal and then switched that contract to Massey coal. Harman Mining was eventually forced into bankruptcy.

Caperton asked for Benjamin’s recusal in the appeals case because Blankenship funneled campaign funding into a tax-exempt organization known as And For The Sake of the Kids during the 2004 election.

Blankenship gave more than $2.4 million to that organization, which ran ads attacking former Supreme Court Justice Warren McGraw, who was running for re-election. Caperton insisted that amounted to support for Benjamin, who defeated McGraw to win his Supreme Court seat.

Blankenship also headed a fundraising drive and letter-writing campaign that netted about $800,000 for Benjamin’s campaign.

Blankenship made a single $1,000 contribution to Benjamin’s campaign in his own name.

Benjamin participated in a number of cases involving Massey Energy, and Caperton’s was the first request for recusal in one of those cases, according to Massey documents in Caperton.

He since has voluntarily recused himself in all other cases involving Massey Energy subsidiaries.

Mountain State Carbon filed a motion asking for Benjamin’s disqualification in Central West Virginia Energy Co. v. Wilson, which led to the recusal. Mountain State is a party in the case, and Central West Virginia Energy Co. is a subsidiary of Massey Energy Co.

“It would be personally and judicially disrespectful to the United States Supreme Court and its Justices for me to proceed in this or any other matter involving Massey Energy Company while the Caperton matter is pending,” Benjamin wrote in a memorandum filed Jan. 30.

He also said it would be improper for the court to delay matters involving Massey while the U.S. Supreme Court decides the Caperton case. The Mountain State request for recusal relies on the appearance of apparent conflict, Benjamin said in the memorandum, and not on personal interest in the case or due to actual bias.