Maloney, WV CALA blast JIC's Davis ruling

By Chris Dickerson | Jul 23, 2015

CHARLESTON – The man who filed an ethics complaint against state Supreme Court Justice Robin Jean Davis and a statewide legal reform group are blasting Tuesday’s dismissal of the complaint.

Bill Maloney issued a statement Wednesday chastising the state Judicial Investigation Commission for its “elitist” ruling, and West Virginia Citizens Against Lawsuit Abuse said the decision was “light on facts.”

“One thing is clear, there are obviously still a different set of rules for the elitist class of career politicians who have grown to accept corruption and unethical actions as the norm in West Virginia,” Malone said in his statement. “As we said many times on the campaign trail for Governor in 2011 and 2012, ‘Wisdom doesn’t reside under that Golden Dome in Charleston, it resides in all of you – the citizens of West Virginia.’”

On Tuesday, the confidential dismissal was made public. The JIC voted unanimously May 22 to dismiss the complaint against Davis. The complaint was filed by Maloney in April regarding the justice, her husband and a personal injury lawyer who purchased a jet from them.

The JIC’s investigation report was handed over to Maloney and Davis June 17; Davis authorized its release Tuesday.

The commission found that “there is no evidence to support a finding of probable cause that Respondent violated the Code of Judicial Conduct.”

In April, Maloney said authorities needed to examine the “appearance of a relationship” between Davis, husband Scott Segal and lawyer Michael Fuller.

In its report, the JIC said Maloney’s filing and subsequent press release appeared to be “a blatant attempt to garner free publicity for himself.”

“It gives the impression that Mr. Maloney was motivated by self-seeking political and egotistical purposes because Mr. Maloney, a two-time unsuccessful candidate for Governor of West Virginia, chose to violate the confidentiality rule for filing complaints when he issued the rapacious press release that was designed to convict Justice Davis in the court of public opinion before any decision on the merits was reached by the Judicial Investigation Commission,” the JIC wrote.

Speaking Tuesday about the dismissal, Maloney said the state needs to examine such commissions.

"One thing that definitely needs to change in West Virginia is getting rid of all self-appointed judicial investigation, ethics commissions, etc. that lack teeth," he said. "It's really a joke to think they will properly police the very people responsible for their appointment."

He elaborated Wednesday in the release.

“A majority of West Virginians believe that Justice Davis should have disclosed the Learjet transaction,” he wrote. “There is something not right with selling a Learjet to a person with a huge case pending before the court, while running for re-election, then accepting campaign contributions from the same individual and making the choice not to disclose it.

“The fact that a commission appointed by the Supreme Court of Appeals of West Virginia, which it is responsible for overseeing, found in Justice Davis' favor means nothing – It’s still wrong! The West Virginia Code of Judicial Conduct very clearly states that ‘A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities.’”

He again said rules need to change in West Virginia.

“This whole escapade screams for one thing – serious changes to the ethics laws in West Virginia,” Malone wrote. “Faced with preposterous decisions such as these, most people would just pack their bags and leave. That seems to be the goal and the facts show it’s working.

“In 2020, West Virginia will lose another Congressional seat as it continues to lead the nation in population decline. The culture of corruption must end to reverse this spiraling trend and truly allow for a brighter future.”

In a separate release Wednesday, the executive director of WV CALA called the JIC ruling imprecise and factually incorrect.

“The Judicial Investigation Commission has rendered a throwback to West Virginia’s darker days of back-room politics where the public interest is subordinated to political agendas,” Roman Stauffer said. “The West Virginia Code of Judicial Conduct states, ‘A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities.’

“Justice Davis should have disclosed her husband’s financial relationship with a Mississippi personal injury lawyer, whom she awarded $17 million in fees in a ruling called ‘tortured’ and ‘shockingly result-oriented’ by Justice (Allen) Loughry.”

Stauffer said the JIC ‘statement of facts’ is heavy on statement and light on facts.

“The commission’s report asserts that Justice Davis’ spouse ‘is a very successful trial lawyer,’ which is not a fact; it’s an opinion and entirely irrelevant to the complaint,” he wrote. “The report further asserts that Davis’ husband wasn’t involved in the infamous Douglas case – the $90 million verdict – an allegation never made in the complaint filed against Justice Davis.

“The commission’s report asserts that the Learjet sold by Davis’ husband was ‘a firm plane,’ owned by her husband’s law firm. Public records show that the Learjet transaction passed through solely owned shell companies. The sale was between Justice Davis’ husband and a Mississippi personal injury lawyer, not their respective law firms.”

Stauffer also said the JIC report “does not accept as proof allegations made in the mass media,” but it does “accept as proof Justice Davis’ own spokeswoman acknowledging Justice Davis knew a Mississippi personal injury lawyer had purchased her husband’s Learjet.”

“Additionally, the Commission does not accept as proof records of incorporation that show the jet sale was between two sole owners of LLCs and not their respective law firms,” Stauffer wrote. “Justice Davis knew her husband sold his Learjet to a Mississippi personal injury lawyer who had and continues to have cases before the Supreme Court of Appeals. The West Virginia Code of Judicial Conduct insists that the public have judges that are above the mere appearance of impropriety yet this Commission found nothing wrong.

“Justice Davis’ own husband admitted on statewide radio if he was representing a client in this case he would like to have known about a million-dollar plus transaction between a judge’s family member and a lawyer in the case.”

In February, attorneys for skilled nursing chain Manor Care asked for Davis to be disqualified from hearing a petition for writ of prohibition in an ongoing case against a former Manor Care-affiliated nursing home filed on behalf of the estate of Sharon Hanna, following a news report linking the justice to the plaintiff’s counsel.

In December, ABC News reported that plaintiff’s counsel in another nursing home matter, Fuller, of the McHugh Fuller Law Group from Hattiesburg, Miss., had purchased a Learjet from the Charleston-based Segal Law Firm, owned by Segal, for more than $1 million in 2011.

The ABC News story also reported that Fuller and other attorneys at the firm had been responsible for raising more than $35,000 for Davis’ 2012 successful re-election campaign.

Last year, Davis authored the majority opinion in the Douglas case, upholding a jury verdict in favor of Fuller’s client, Tom Douglas, who alleged severe neglect led to the death of his 87-year-old mother, Dorothy. The ruling did, however, cut the punitive damages award from $80 million to nearly $32 million.

Davis has refused to recuse herself from the Hanna case.

Maloney said in April that statements made by Davis and Segal indicated to him that Davis was aware of Fuller’s million dollar-plus transfer of funds to her husband before the oral arguments in the Douglas case began.

“Rather than disclose it to her colleagues on the court, the defense counsel or the public, she instead personally presided over oral arguments and authored the majority’s decision,” Maloney said in filing his complaint.

“Fuller benefited from her decision, a ‘tortured’ one according to the dissent, by collecting $17 million in fees from the plaintiff.”

He said he had considered filing the complaint since December when the story broke.

Maloney ran for governor in 2011 and 2012. In 2011, he ran to fill the unexpired term of Joe Manchin, who vacated the seat to replace U.S. Senator Robert C. Byrd after Byrd’s death. He won the Republican primary, but lost to acting Gov. Earl Ray Tomblin in the fall.

In 2012, the Morgantown businessman, who co-founded a drilling company instrumental in the 2010 rescue of trapped Chilean miners, won the Republican primary again but lost to Tomblin in the general election.

Davis has maintained she didn’t know the purchase price of the 2011 transaction until December when media coverage of the issue began. She has been critical of the coverage since.

For now, Maloney said he remains optimistic.

“Things never work out exactly as planned but they get better with time if you do the right thing,” he said. “We continue to take the high road and fight for what’s right, knowing that our maker will see to it that we and above all the citizens of West Virginia will win in the end.”

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