In a story that sounds eerily like the John Grisham book, The Appeal, files released from West Virginia Governor, Joe Manchin’s, office reveal that he is in bed with DuPont Company trying to get the West Virginia Supreme Court to overturn a $382 million verdict against DuPont. The case arises out of DuPont’s alleged dumping of toxic arsenic, cadmium, and lead from its zinc-smelting plant in Spelter, W.Va. The underlying case alleged that these toxins entered the water supply and that DuPont deliberately endangered thousands of residents of Spelter. Last October, a jury in Harrison County, W.Va. found that DuPont, indeed, had deliberately subjected the Spelter residents to toxic poisons and 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, 2008, DuPont appealed the verdict to the W.Va. Supreme Court.
Gov. Joe Manchin III, a Democrat in his first term who is up for re-election in November, filed a friend-of-the-court brief the same day, pressing the Court to review the $382 million judgment against the DuPont Company. The Governor said he was not taking sides, but acting in the interest of due process. If you believe that, I have a bridge I’d like to sell you.
Documents from the governor’s office show that Mr. Manchin consulted with DuPont before filing the brief, and DuPont officials say the governor even asked them to provide him with a draft brief.
It was the first time a West Virginia governor had taken such action in a case in which the state was not a party. Mr. Manchin’s actions rightfully 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.
The New York Times reports that 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 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.
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 as often happens, the draft brief from DuPont came to the governor’s office unsolicited. 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. Somebody is lying!
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.
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.
“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.”
In The Appeal, a fictional chemical company illegally dumped chemicals into the ground for decades. The chemicals got into the water supply and rendered the county water not only undrinkable, but also cancer causing. In response to a $48 million verdict in one case, the company undertakes dirty tactics to compromise the Mississippi judiciary, all in an effort to buy a win on appeal. As they say, life imitates art. Gov. Manchin should recognize the separation of powers between the executive and judicial branches and stay out of the Spelter case. Such sleazy tactics as set forth in the Grisham book are even more dangerous in states like Mississippi and West Virginia where judges are elected. I believe it is a terrible idea to force judges to become politicians. This increases the potential for the judiciary to be corrupted by lobbyists and money.