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US: Files Show Governor Intervened With Court

by Ian UrbinaNew York Times
August 13th, 2008

When Gov. Joe Manchin III of West Virginia filed a friend-of-the-court brief in June arguing that the State Supreme Court should review a $382 million judgment against the DuPont Company, he said he was not taking sides, but acting in the interest of due process.

Documents from the governor’s office, however, show that Mr. Manchin had consulted with the company before filing the brief, and DuPont officials say the governor even asked them to provide him with a draft brief.

The case involves thousands of residents in and around Spelter, W.Va., where DuPont operated a zinc-smelting plant. Last October, a jury in Harrison County ruled that DuPont deliberately endangered those residents by dumping toxic arsenic, cadmium and lead at the plant.

In the largest civil penalty ever levied against DuPont, the court ordered the company to pay nearly $382 million to monitor nearly 8,000 residents in the area for signs of cancer, to clean up the site and pay punitive damages.

On June 24, the company appealed to the State Supreme Court. Mr. Manchin, a Democrat in his first term who is up for re-election in November, filed his brief the same day, pressing the court to consider the case. (The court went into summer recess without indicating whether it would hear the appeal.)

It was the first time a West Virginia governor had taken such action in a case in which the state was not a party, one expert said, and Mr. Manchin’s actions angered plaintiffs, who argued that the executive branch was inappropriately pressuring the judicial branch.

The governor’s spokesman said that Mr. Manchin only wanted to ensure that cases involving punitive damages received a full airing from the Supreme Court and that he was not weighing in on behalf of DuPont.

But new documents reveal a more complicated picture.

On June 2, the governor met with the vice president of DuPont and one of the company’s lawyers to discuss the brief, according to records of the meetings obtained through the Freedom of Information Act.

The governor also spoke on the phone with DuPont’s chairman and chief executive, Charles O. Holliday Jr., on Nov. 20, 2007, less than a month after the verdict, according to the documents.

Shortly before the governor filed his brief, DuPont lawyers provided his office with two draft briefs that made many of the same arguments he later used in his brief, documents show.

The day Mr. Manchin filed the brief, his office also requested assistance by e-mail from DuPont with the procedural requirements for filing.

When questioned by the plaintiff’s lawyers about DuPont’s draft brief, the governor’s office said that some of the e-mail correspondence between the company and his office had been erased, according to documents from the governor’s office.

In an interview, however, Carte Goodwin, Mr. Manchin’s lawyer, said that “any e-mails of note” between DuPont and the governor’s office had been preserved and turned over to the plaintiff’s lawyers. Mr. Goodwin also said that, as often happens, the draft brief from DuPont came to the governor’s office unsolicited.

Mr. Goodwin, in an e-mail message, said Mr. Manchin, in his brief, had raised “a purely legal and technical question that is important to the citizens of this state.”

Mr. Goodwin added, “The governor neither opines on the underlying merits of the case nor argues for the reversal or modification of the jury’s verdict.”

But a DuPont spokesman, Daniel A. Turner, said in an e-mail message that it was the governor who had asked DuPont to provide a draft brief.

Mr. Turner said DuPont simply wanted “a full and fair Supreme Court review of the trial court outcome,” and to that end, the company also asked the West Virginia State Medical Association in April to file a brief on DuPont’s behalf, which the association did.

“Like any organization, DuPont is entitled to raise issues of public concern with public officials,” Mr. Turner said.

The documents from the governor’s office also reveal overlap between Mr. Manchin’s staff and DuPont.

Mr. Manchin’s executive assistant, Peggy Ong, is a former DuPont employee. While there, Ms. Ong was involved with the company’s handling of the Spelter case and its conducting community outreach regarding the contaminated site, according to company documents.

Moreover, Mr. Goodwin’s former law firm, Goodwin & Goodwin, was hired by DuPont as a consultant in the Spelter case.

Mr. Goodwin dismissed the connections, explaining that his former firm had played a minor role in advising DuPont and that Ms. Ong, as Mr. Manchin’s secretary, was not involved with policy.

The case started in 2004 after 10 property owners in Spelter sued DuPont, based in Delaware, and T.L. Diamond & Company, a metal concern based in New York, over claims that the companies had deliberately dumped dangerous heavy metals on the industrial site, permitting it to seep into the surrounding communities.

Last year, the State Supreme Court refused to hear an appeal of a $404 million verdict against NiSource and Chesapeake Energy. Chesapeake cited the decision in May when it shelved plans for a $35 million regional headquarters in Charleston, West Virginia’s capital.

This year, Forbes ranked West Virginia last among states with a business-friendly environment, and some residents saw the governor’s action as a welcome effort to rein in trial lawyers.

“The last thing West Virginia needs is another way to be out of the mainstream when it comes to business and the jobs business brings,” said an editorial in one of the state’s largest newspapers, The Daily Mail in Charleston. “West Virginia needs to look at these questions, which clearly do affect its business climate.”

Craig Skaggs, a former DuPont lobbyist from West Virginia, said he believed that the Spelter penalties were too high and that the ruling would hurt business in the state. But he added he was surprised that, even in a small state like West Virginia, DuPont would try to get the governor involved.

“I would never have done that,” Mr. Skaggs said.

The revelations of Mr. Manchin’s involvement in the DuPont case come against a backdrop of larger concerns raised recently about the independence of the state’s legal system. In the last year, two Supreme Court justices have come under scrutiny for ties to company executives that had cases pending before the court.

Prof. Stephen Gillers, who teaches legal ethics at New York University School of Law, said it was unusual and inappropriate for the governor, instead of the attorney general, to get involved in such a case, and that after searching state court records, he could find no example of a similar intervention by a governor.

“It is not part of the court’s responsibility to consider the effect of the verdict on the economic climate,” Professor Gillers said. “Consequently, the governor should not be justifying his intervention or asking the court in this indirect way to consider the case for this reason.”

One plaintiff, Carolyn Holbert of Erie, called the governor’s actions “a total betrayal.”

Ms. Holbert, 62, a retired switchboard operator whose back porch looks out onto the Spelter site and who grew up just miles from the plant, said that an aunt, an uncle and three of six siblings had died from cancer.

“The governor says he is not taking sides,” Ms. Holbert said. “But he is helping DuPont drag its feet, and people are dying while they wait for help.”





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