CHARLESTON – In voting to give Robin Jean Davis another year as Chief Justice of the state Supreme Court, the Justices cited her work so far this term.
But sources close to the Supreme Court say the real reason behind the move was to punish Justice Larry Starcher for his history of outspokenness that culminated with comments last month in the New York Times about a fellow Justice and Massey Energy CEO Don Blankenship.
During an Oct. 26 administrative conference, the Justices voted 3-2 to allow Davis to remain Chief Justice for one more term. Based on a 1979 order rotating who sits in that seat, Starcher was in line to be Chief Justice. Starcher and Joseph Albright were in the minority, while Davis, Brent Benjamin and Spike Maynard were in favor.
"During the administrative conference, the only stated reason was that Chief Justice Davis had done a great job," said Steve Canterbury, administrative director of the Supreme Court. "She is in the midst of her work on improving the lot of children in West Virginia. Her work with the DHHR (Department of Health and Human Resources) has been groundbreaking. The majority thought she had earned another one-year term as chief."
Albright told a Parkersburg newspaper that the vote was to keep Starcher out of the position.
"The purpose was to deprive Justice Starcher of his rightful term as chief justice," Albright told the paper. "The motion was put forth by Justice (Brent) Benjamin and concurred in by Justice Maynard and Davis. There were two parts to the motion, and the second part put Maynard back in for 2008. You can tell from there what was being done.
"It has nothing to do with Davis doing a good job. She has done a good job, but I did a good job when I was chief justice, and we followed the rotation."
Starcher critics say the move was spurred by Starcher's comments in the Oct. 1 New York Times. That, the critics say, is the proverbial straw that broke the camel's back.
In the article, Starcher said, "It makes me want to puke to see massive amounts of out-of-state money come in and buy a seat on our court. ... Now we have one justice who was bought by Don Blankenship."
That is a reference to Blankenship's 2004 effort in backing Benjamin in his victory over incumbent Warren McGraw. Blankenship spent nearly $3 million on the campaign with his political action group And For The Sake Of The Kids as well as other advertising.
According to the minutes of the Oct. 26 meeting published in the Charleston Gazette, Benjamin made the motion to give Davis another term as chief justice. Maynard backed the motion, adding he would prefer that Davis become permanent chief justice.
Starcher said "Davis had done a good job but that Justice Benjamin's motion was entirely aimed at eliminating him," according to the minutes.
Steve Cohen, executive director of West Virginia Citizens Against Lawsuit Abuse, praised the Justices for their vote last week. CALA long has been critical of Starcher's actions and rulings.
"Clearly Justice Starcher's colleagues have rejected his brand of judicial activism and outbursts uncharacteristic of a Supreme Court Justice," Cohen said. "The decision to exclude Judge Starcher from serving as Chief Justice is an encouraging sign for the stability of the Court.
"Both the general public and our highest court officers realize it's high time we put some predictability back in our courtrooms. We need to re-establish respect for our courts and bring jobs back to West Virginia."
Before the 1979 order, Chief Justice was a permanent position based on seniority.
"The office of Chief Justice shall be rotated among the members of the court in accordance with the justices' seniority on the court," the 1979 order reads.
While the move to skip over a Justice for the Chief Justice position is rare, it isn't unprecedented.
This makes the fourth time since the 1979 order was enacted that it has been overturned.
Richard Neely was removed from the seat in the middle of his term in 1985 when controversy erupted after he required his state-paid secretary to baby-sit for his son. Thomas Miller took over and then continued in his regular 1986 term.
In 1994, William Brotherton took a leave after suffering a heart attack. Neely took over and then filled out the rest of that term and his scheduled term in 1995.
Then, in 1996 and 1997, Thomas McHugh served two full terms as Chief Justice, likely because Neely had just served as Chief Justice and three new justices were on the bench.
During the Oct. 26 meeting, the Justices also voted 5-0 to place Maynard as Chief Justice in 2008. Starcher and Albright voted that way because Maynard would be Chief Justice then according the rotation from the 1979 order.
The comments in the Times weren't the first ones Starcher has made about Blankenship and Benjamin. Here are some instances Massey mentioned earlier this year in a complaint when it sued the state Supreme Court over what it says was Starcher's inability to be objective in cases involving the company.
* On Jan. 3, 2003, the State Journal reported that Starcher told a group of high school students visiting the state Capitol on Dec. 3, 2002, that coal companies were not good for the state because "they reap benefits without contributing anything in return."
* Starcher criticized Massey in a public radio interview after the November 2004 election. "What we're going to see is we're gonna see Massey Coal and the big out-of-state insurance companies and huge mega-corporations buy a seat on our Supreme Court, and I'll be very sad to sit on the Supreme Court for the next four years, quite frankly," a Massey complaint said, quoting Starcher's radio interview. "I hate to see out-of-state money be used in such an obscene way as it was in this race to buy a seat on the Supreme Court and attempt to control it. It saddens me very much."
* Before that election, Starcher also said that if Benjamin defeated McGraw, "Don Blankenship and the Massey Coal Company will own the West Virginia Supreme Court."
* At the 2005 annual conference of the Virginia Trial Lawyers Association, Starcher again spoke of Blankenship, Massey and the 2004 election.
"Justice McGraw was not opposed in the general election by some neophyte lawyer named Brent Benjamin," Starcher is quoted as saying. "He was opposed by a Richmond, Virginia, resident named Don Blankenship, who poked $4 million into defeated Justice Warren McGraw in (the) Supreme Court. Nobody ever heard of Brent Benjamin … and he practiced law in Charleston for 20 years, I believe.
"So, really, the election was bought, a seat was purchased on our Supreme Court, and I'm highly offended by it. I'm highly offended by the obscene use of out-of-state money …
"They tried to purchase a seat on our Supreme Court, and they succeeded. … He has a very special interest in owning a seat on the Supreme Court."
* When Marfork, a Massey subsidiary, sought to disqualify Starcher in a case in which Marfork sought review of a permitting decision by the state Department of Environmental Protection, Starcher denied the motion.
"True, I have said that, in my opinion, Massey has not been a good corporate citizen," Starcher wrote in the June 16, 2005, memorandum decision. "I read papers and form personal opinions as other people do."
Then, the complaint states, "after analogizing to prior cases before the court involving infamous behavior, including murder, drunk driving, child abuse and domestic violence, Justice Starcher concluded: 'So, as one can see, this is not the first time I have been asked to sit in judgment of a part for which I may have less than full respect …'"
* On Oct. 26, 2005, Starcher was quoted in the Bluefield Daily Telegraph newspaper about Blankenship's participation in the political process.
"I think he has no real concern or interest in the betterment of West Virginia," Starcher told the paper. "I think he's simply on an egomaniac trip and is trying to better the bottom line of his coal company."
* The next day Starcher sent Blankenship a note in the mail that seemed to be in his own handwriting.
"Dear Mr. Blankenship," the note on Supreme Court stationery began. "Some reading information to help you 'keep the record straight.'"
It was signed by Starcher with the post script, "I paid the postage."
Attached was a copy of Starcher's curriculum vitae, a document written by Starcher entitled "an abbreviated autobiography" and a document containing Starcher's career biography, including a picture of Starcher.
The picture was autographed, "Best wishes to a 'fine West Virginian' ----- L. Starcher 10/27/05."
* The following day, Starcher spoke at the annual West Virginia Political Science Association meeting. He spoke to a local television reporter about Blankenship.
"I think he's a clown, and he's an outsider, and he's running around this state trying to buy influence like buying candy for children. And, I think it's disgusting. …
"He's stupid. He doesn't know what he's talking about … I'm certainly not afraid of him."
* Three days later, on Halloween 2005, Marfork renewed it disqualification of Starcher. He denied the motion without explanation.