Dec. 21, 2006
 
BLANKENSHIP V. MANCHIN: Governor Not Automatically Immune from Civil Rights Suit for Threatening Heightened Regulatory Scrutiny; Trial Date Not Yet Set
 
By Tony Rutherford
Huntington News Network Writer
 
Huntington, WV (HNN) -- Gov. Joe Manchin and Massey Energy CEO Don Blankenship have squared off in numerous political disagreements. Now, the sitting West Virginia governor may stand trial for violating Blankenship’s first amendment right to be free of retaliatory actions. The ruling came on Wednesday, Dec. 20, 2006, by the U.S. Circuit Court of Appeals for the Fourth Circuit in Richmond, Va. The three-judge panel affirmed the district court’s ruling to not dismiss the complaint.
 
For the non-legally minded, I’ll briefly posture this case:
 
A state or federal civil action for damages, injunctive relief, and attorney fees may be filed when certain governmental actions violate a plaintiff’s civil rights. In this case, Blankenship alleges that by not supporting a bond issue, Gov. Manchin “threatened” his company with immediate and intense regulatory scrutiny beyond that which would be routinely received.
 
However, many political officials, such as judges and prosecutors, have various forms of immunity from suit for their “official” decisions. A judge, for instance, is absolutely immune from a civil suit for decisions made in the course of litigation. If a Mason County judge would entertain an action from Wyoming County, he would not have jurisdiction over the case. In theory, such a blatant usurping of authority, would potentially place the Mason County judge in jeopardy of violating civil rights, unless of course, the case had been properly “removed” to Mason County by the parties.
 
Generally, the same standards apply to prosecuting attorneys who have wide discretion in decisions made in presenting cases to a grand jury, at trial, and at other points in the criminal justice process.
 
Turning to the Blankenship case, the mining businessman took a public position at odds with the Governor. The First Amendment allows a free marketplace of ideas and a freedom of political speech. By opposing, in this case, a bond issue, Blankenship simply exercised his First Amendment right to dissent. Since he has a personal fortune, he could make his viewpoint more widespread than most who might be limited to a letter to the editor, call to a talk radio station, or a protest demonstration.
 
According to the complaint, the Governor reacted to Blankenship’s opposition by “threatening” to hold Massey Energy to higher regulatory standards than other coal companies in the state. The governor specifically stated Blankenship’s political stance would cause the higher standard for his corporation.
 
Shortly thereafter, Massey Energy was subjected to a more thorough than normal state EPA inspection / investigation, which, in theory, confirmed Manchin’s “threat” to treat the company unlike any other due to the owner’s political position.
 
The First Amendment has a guarantee that prevents retaliation for disagreeing with political positions. And, the government can not “retaliate” with, say, greater income tax auditing, because a taxpayer spoke boldly against, say, the current commander in chief or a policy of the Internal Revenue Service.
 
However, the ruling by the Fourth Circuit does not necessarily mean that a jury trial will follow. Procedurally, the case remains in its infancy. Blankenship’s attorney filed the suit, Manchin’s attorneys answered and asked for dismissal on grounds that he was “immune.” Under that standard, to subject someone “immune” to trial would violate their constitutional rights. As an example, a person charged under what might be an unconstitutional law would have a right to challenge its constitutionality before standing trial, since subjection to trial would violate their civil rights.
 
Manchin’s attorneys said, we’re immune; dismiss it.
 
The appeals panel said, no, you’re not; prepare the case for trial.
 
A trial is the end result of litigation, so in the Blankenship v. Manchin case, now the two parties will be issued a “scheduling order” which allows for “discovery” on the parts of both plaintiff and defendant. Simply put, each side provides the other with limited access to its evidence.
 
If this process uncovers more legal issues, then, the court has to decide them. Once the legal issues are removed, a jury -- which determines facts i.e. who to believe when evidence or statements conflict -- will be seated to decide monetary liability, such as in the O.J. Simpson civil trial.
 
The Fourth Circuit has ruled that when Blankenship asserted his political opposition to a Manchin policy, the businessman could, of course, dispute publicly the governor’s remarks about Massey. However, the company could not do anything to prevent the state EPA and other regulatory authorities from harassing the corporation.
 
“The threat of continued and heightened regulatory scrutiny of Massey loomed large, serving its function as a constant ‘warning’ to Blankenship about speaking out on political issues,” the court wrote. “It is well established that a public official may not misuse his power to retaliate against an individual for the exercise of a valid constitutional right. In the specific context here, it is clearly established that the First Amendment prohibits a [political] officer from retaliating against an individual for speaking critically of the government.”
 
Manchin’s attorneys argued that the alleged threat of punishment, sanction or adverse was still subject to a “balancing test” of First Amendment rights of the public official and the citizen. But, the court said, “a public official’s retaliatory action in the nature of speech that threatens, coerces or intimidates, intimating that punishment , sanction or adverse regulatory action will immediately follow, establishes a violation of an individual’s First Amendment rights… one that the Governor’s remarks clearly violated.”