Massey wants other justices to stop Starcher recusal hearing

By Chris Dickerson | Apr 2, 2008

CHARLESTON – Massey Energy is hoping the other state Supreme Court justices put a stop to Justice Larry Starcher's plan to hold an oral hearing on a recusal request.

In the April 1 filing, Massey also said recent comments Starcher made shows he still is biased against the company and CEO Don Blankenship.

The next day, Starcher told his fellow Justices he plans to go forward with the hearing.

Starcher has scheduled a hearing April 10 to discuss Massey's recusal request. Massey has appealed a $219 million Brooke County verdict from last year in which the jury found Massey and a subsidiary reneged on coal contracts with Wheeling-Pittsburgh Steel.

Massey says the hearing, apparently a first for the state Supreme Court, "exceeds Justice Starcher's authority as an member of this Court."

"Specifically, such a hearing cannot be scheduled absent concurrence by or held without the participation of a quorum of the Supreme Court," writes W. Henry Jernigan Jr., who represents Massey in the case.

Noting that Starcher already has recused himself from another case involving Massey (Massey vs. Harman Mining and Hugh Caperton), the company sought to have him remove himself from the Wheeling-Pitt case.

"In so doing, he acknowledged that, based upon the same statements cited in Petitioner's motion in this case, 'the public might rightfully be of the opinion' that he could not be fair to Massey, despite his best efforts," the April 1 filing states. "Given that, Justice Starcher concluded that his continued participation in the Caperton case would give rise to 'a reasonable appearance of impropriety' and, as such, he was required … to recuse himself."

So, Massey again sought Starcher's recusal in the Wheeling-Pitt case. That's when he announced his plan for the April 10 hearing.

The following week, Starcher made a speech to the Kanawha County Federation of Democratic Women in South Charleston. The speech was covered exclusively by The West Virginia Record.

"In his remarks to that organization, Justice Starcher again accused Mr. Blankenship of creating a 'cancer' on this Court," the Massey filing states. "He further remarked that he has and will continue to speak out about this perceived 'cancer' in hopes that by doing so, he will set the other members of the Court on a 'different path' or cause the election of what he characterizes as 'real Democrats' and not 'Republicrats' to the Court who will follow the 'path' that he advocates."

In a statement Monday, Starcher said he will fight Massey's latest request.

"It's very disappointing that Massey wants to stop a public hearing to determine the truth of their claim that I should be recused," Starcher said. "I believe in government acting in the sunshine, not in secret. I will do my best to protect the public's right to know by opposing this motion."

On Wednesday, Starcher said Massey's latest move is moot because the hearing in an "administrative matter" internal to the Court.

"I have no intention of 'stepping aside' in the consideration of this matter," he wrote.

Court rules require judges to recuse themselves from cases to avoid even the appearance of impropriety. But the rules also put the final decision in the officer's hands.

On numerous occasions, Massey has sought Starcher's disqualification on its cases. Besides calling Blankenship "stupid" and a "clown," Starcher has been critical of Blankenship's involvement in the 2004 Supreme Court race when he spent at least $3.5 million to help defeat Democratic incumbent Justice Warren McGraw and elect Republican Brent Benjamin.

Massey's April 1 filing goes on to say that Starcher's April 10 hearing "can serve no purpose other that to provide a forum the voicing of Justice Starcher's views on the allegedly improper path down which the Court is currently headed. This is irrelevant to the proper disposition of the pending motion, however."

Massey's attorneys contend that they would be placed in "the untenable position" of either declining to comment on certain matters or engaging in public debate with Starcher.

"This is simply inappropriate in the context of a putative court proceeding and would in no way serve the interests of justice," the filing said.

But Massey says the other four Justices are "not powerless" to keep the hearing from happening.

"Because the scheduling of the hearing and the manner in which the hearing is proposed to be conducted are improper and unauthorized, a writ prohibiting it from going forward should properly be issued," the motion states.

The company also says the state Constitution, the state Code and the state Rules of Appellate Procedure prohibit an individual justice from convening a hearing with respect to matters pending before it.

Quoting Rule 17(d) of the West Virginia Rules of Civil Procedure, Massey's filing states, "No oral argument shall be held on any motion, unless requested by the Supreme Court."

Massey's filing compares it to a similar incident in 1988 when then-Justice Darrell McGraw (now the state's Attorney General) sought to hold a hearing on a motion to recuse himself in a case.

"His efforts were rebuffed by the majority of the Supreme Court," the motion states. "In that case, the petitioners filed a motion to recuse Justice McGraw, which was apparently treated as a writ of prohibition aimed at prohibiting him from sitting on the Court on a related appeal in that matter.

Later, in a statement, McGraw noted that, "At the outset of this matter, I moved the Court to give the Petitioners a hearing to show reasons for my disqualification. The Court refused to grant the Petitioners a hearing."

The Massey filing also says Starcher's hearing would set a precedent that one justice could exercise the powers vested in the five-member Supreme Court.

"If an individual justice is permitted to singularly set matters upon the Court's docket, to unilaterally hold 'public hearings' on ancillary matters before the Court, or otherwise individually conduct business of the Court, the Court would cease to function as a unitary body but instead become a forum for individual actions by its members," the motion states. "It was precisely to prevent this that this Court is required to act as a body in, among other things, setting and conducting hearings. An individual justice cannot act unilaterally in transacting the business of the Court. …

"Simply put, allowing this hearing to go forward without the approval of the Court as a judicial body, considering the lack of authority for it occurring in this manner, would create a precedent that would justify unilateral actions by future justices who wish to conduct business outside the corporate body that is this Court and in a manner unfettered by the rules or the restrictions imposed by our statutes and State Constitution. The potential ramifications of that are far reaching as well as destructive to the cohesiveness of the Court and should not be permitted without careful consideration following issuance of the requested writ."

Massey's attorneys acknowledge they're requesting the Court take a stand against one of its members.

"That is not something that the Petitioners do lightly," the motion states. "The law is clear, however. A single justice cannot schedule or conduct such a hearing in the manner Justice Starcher has done here. That fully explains why, in the history of the Court, no such hearing has ever previously occurred."

And the filing says the motion isn't a way to impugn Starcher's integrity.

"While Petitioners disagree with Justice Starcher's comments and characterizations of both Massey and Mr. Blankenship, they acknowledge his right to voice those opinions," the filing states. "However, having elected to make those statements and thereby create a situation where the public could reasonable believe that he is biased against Massey and its Chairman, Petitioners believe that Justice Starcher has no alternative but to do as he properly did in Caperton -- step aside. Conducting the proposed hearing can in no way alter that."

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