MADISON – A.T. Massey Coal Company has filed a motion to have Boone Circuit Court Judge Jay Hoke disqualified from a case that already has resulted in federal lawsuit.

Because Hoke's impartialality might be questioned, Massey says the judge shouldn't be presiding over the case brought against the energy company by Hugh Caperton, Harman Development Corp., Harman Mining Corp. and Sovereign Coal Sales Inc.

In 1998, those parties filed the suit against Massey Coal, Elk Run Coal Co., Independence Coal Co., Marfork Coal Co., Performance Coal Co. and Massey Coal Sales Co. alleging Massey was liable for damages arising out of a series of transactions that also were the subject of a separate lawsuit in Virginia. A seven-week trial began in May 2002 in Boone County Circuit Court, and it ended on Aug. 1, 2002. The jury ruled against Massey, which was ordered to pay more than $50 million in damages.

Last month, Massey filed a federal lawsuit against Boone Circuit Court reporter Jennifer Meadows, claiming she "intentionally misrepresented her ability to produce a transcript" for the 2002 trial. Massey also claims Meadows' actions have caused the company "substantial financial damages."

Massey claims Meadows violated its constitutional right for failing to transcribe a complete transcript and that she "negligently prepared the transcript by failing to utilize proper transcribing methods." Massey also says Meadows fraudulently said she was too busy to produce the transcript when, in fact, she could not produce one.

In the Boone County motion, filed July 10, Massey says Meadows and Hoke have a long professional relationship which dates back to his days as Logan County prosecutor.

"Meadows was his secretary when he was the prosecutor," the motion states. "After he was elected as a circuit court judge, Judge Hoke appointed Ms. Meadows as his court reporter. Further … Meadows remains Judge Hoke's court reporter to this day."

After repeated requests for a transcript of the 2002 trial were not productive, Massey filed motions in Boone Circuit Court in June

Massey says it has been denied its due process right to appeal the 2002 verdict because of Meadows' actions. That, Massey says, is a violation of the 14th Amendment of the United States Constitution and Article 3 of West Virginia's Constitution.

Currently, Hoke must rule by Sept. 1 whether the "piecemeal" transcript it finally obtained earlier this year is good enough for Massey's appeal.

In the July 10 motion, Massey hints that legal action against Hoke might be coming.

"Although Massey believes that Judge Hoke may have known about Ms. Meadows' practice and incompetence, Massey does not currently have any evidence to support a claim against Judge Hoke," the motion states. "However, Massey will seek discovery … to determine Judge Hoke's knowledge of his court reporter's reckless court reporting practices, and his knowledge and involvement in her intentional misrepresentations regarding preparing the trial transcript."

Massey says Hoke should be disqualified based on canons in the West Virginia Code of Judicial Conduct.

"A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where: (a) the judge has personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding; … (d) the judge or the judge's spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person: (i) is the party to the proceeding, or an officer, director or trustee, of a party; (ii) is acting as a lawyer in the proceeding; (iii) is; known by the judge to have more than a de minimis interest that could be substantially affected by the proceeding; (iv) is to the judge's knowledge likely to be a material witness in the proceeding."

Massey says Hoke should be disqualified because he has "a substantial" interest in the outcome of the hearing on the motions pending that result from Meadows' insufficient transcripts.

"Massey has decided to proceed cautiously by not naming Judge Hoke as a defendant and, instead, fully evaluating his participation through discovery," Massey states. "Judge Hoke could possibly be liable … if discovery reveals that Judge Hoke wantonly and recklessly supervised Jennifer Meadows as part of his administrative duties."

Massey also says Hoke could become a party if he knew "Meadows was incompetent an derelict in her duties, and wantonly and recklessly failed to take the appropriate administrative action against" her.

Massey goes on to say that it strongly suspects Hoke knew Meadows had a poor job performance over the years that she worked for him as a court reporter, and it believes Hoke took no action against her at all.

"In addition, Judge Hoke will become a party if he had knowledge that Ms. Meadows was falsely reporting her progress concerning the transcript, and he wantonly or recklessly failed to take any administrative steps to rectify the issue."

Massey also says Hoke should be disqualified because he has personal knowledge of the legal claims against Meadows. It also says he should be removed because of his personal interest in the case based on his professional relationship with Meadows.

"Judge Hoke seems to have loyalty to his former secretary and Court Reporter, which is evidenced by his decision to retain her as the official court reporter after her wrongdoing in this case," Massey writes. "Although not at all inappropriate, a reasonable person would conclude that Judge Hoke likes Ms. Meadows and considers her a friend. …

"No judge could be expected to be impartial when his decisions will impact upon his loyal employee and friend, Jennifer Meadows."

Massey is represented by attorneys D.C. Offutt Jr., Stephen S. Burchett and Perry W. Oxley of the Huntington law firm of Offutt, Fisher and Nord.

Boone Circuit Court case number: 98-C-192

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