W. Virginia: Governor's Prerogatives--Not

In a decision out last week, the federal district court for the Southern District of West Virginia appears has weighed in on the prerogatives of the state's Governor in his interaction with a major corporate executive who opposed a proposed public bond package designed to cover state employee pensions.   Blankenship v. Manchin is especially interesting in light of the tragic deaths of West Virginia miners in the last month and the tensions that will undoubtedly continue as government agencies endeavor to protect miner safety.  It presents a compelling depiction of the struggles of government and powerful coal mining interests, one that might in time make it to the silver screen.

Governor Manchin had apparently had prior run-ins with Blankenship, who is the president, CEO and chairman of the board of Massey Energy.  Blankenship had previously actively opposed re-election of a sitting state supreme court judge and imposition of an increased coal severance tax to fund workers compensation costs. 

Press reports included in the court's decision described Manchin's comments about Blankenship as follows:

"The most frustrating thing going on is that there's a person who has been very successful financially in the business world, and when someone asked him to be a part of a positive movement in West Virginia, he said, 'No.' "

When asked, Manchin said that Blankenship's campaign against the pension bonds should and will prompt even more scrutiny of Blankenship, who is arguably already the state's highest-profile coal executive.

"If you want to throw yourself into public policy, your record is open," the governor said.

Manchin declined to personally offer any specific criticisms of the way Massey or Blankenship has operated, except to note that the company has had numerous run-ins with state environmental regulators.

"I think there have been many violations that hopefully they've been able to correct," the governor said.

[taken from an article from the Charleston Gazette]

Blankenship alleged that Manchin's comments represented a threat of retaliation based upon Blankenship's exercise of speech protected by the First Amendment.  He further alleged that Massey's effort to build an additional coal silo in Raleigh County, W.Va. had been stymied because of investigations into possible safety issues with the site (notwithstanding Massey's claim that all safety standards had been satisfied) which caused apprehension by the potential landlord.

After the Governor moved to dismiss, the district court held that Blankenship had standing, and that the Governor's alleged threat, if proven, impacted Blankenship's First Amendment rights.  The court then undertook an extended analysis of qualified immunity under 42 USC 1983, relying on Fourth Circuit precedent in Suarez Corp. Indus. v. McGraw, 202 F.3d 676 (4th Cir. 2000).  The McGraw standard requires that:  "First, the plaintiff must demonstrate that his or her speech was protected. Second, the plaintiff must demonstrate that the defendant's alleged retaliatory action adversely affected the plaintiff's constitutionally protected speech. Third, the plaintiff must demonstrate that a causal relationship exists between its speech and the defendant's retaliatory action."

The court concluded that the Governor had not demonstrated that he was entitled to qualified immunity "at this stage of the case. The court is nevertheless mindful of the chief executive officer's sworn responsibility and solemn duty to faithfully execute the laws of the state of which he is Governor--a factor that is to be given due consideration throughout this litigation."