WV CALA wants probe of Judicial Investigation Commission

By Chris Dickerson | Jul 28, 2015

CHARLESTON – A legal reform group is calling on the West Virginia Legislature to study the Judicial Investigation Commission after its handling of a recent complaint against Justice Robin Jean Davis.

West Virginia Citizens Against Lawsuit Abuse called the JIC “a secret court for judges.” WV CALA says lawmakers needs to set up a study of the JIC, its appointment process and its investigative process.

“West Virginians deserve courts that are fair and impartial, and the latest report from the Supreme Court’s Judicial Investigation Commission … on Justice Davis raises serious questions about its oversight capability,” WV CALA Executive Director Roman Stauffer said. “As a local paper observed, the Justice’s husband’s undisclosed deal with a personal injury lawyer who had business before the Supreme Court would make ‘a reasonable person’ accept that there may be ‘an appearance of impropriety.’

“Our members need to know whether the current structure and makeup of the Judicial Investigation Commission best serves the interests of all West Virginians.”

The state Supreme Court established the JIC to determine whether probable cause exists to formally charge a judge with a violation of the Code of Judicial Conduct, to govern the ethical conduct of judges or to ascertain that a judge, because of advancing years and attendant physical and mental incapacity, should not continue to serve.

“Currently, the nine members of the Commission are appointed by the Supreme Court and then tasked with investigating allegations of judicial misconduct of the Supreme Court, as well as circuit judges and other judicial officeholders in West Virginia, who in many cases may be their colleagues,” Stauffer said. “Our view is that the state Legislature should study the Commission’s appointment process, who serves on the Commission, and how investigations are conducted.

“If the Supreme Court were serious about ensuring an impartial and unbiased investigative process of potential violations of the Code of Judicial Conduct they should ensure that the Commission is not in any way beholden to the Supreme Court. Some states, for example involve their executive and legislative branches in the seating of the oversight body.”

Earlier this month, a JIC ruling regarding an ethics complaint filed against Davis was made public. Former gubernatorial candidate Bill Maloney filed the complaint, regarding the relationship between Davis, her husband Scott Segal and Mississippi attorney Michael Fuller, who purchased a LearJet from Segal’s law firm. The JIC’s investigation report was handed over to Maloney and Davis June 17; Davis authorized its release last week.

Maloney called the JIC’s unanimous dismissal of the complaint “elitist.”

“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 a 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.’

“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. It's really a joke to think they will properly police the very people responsible for their appointment."

He elaborated.

“A majority of West Virginians believe that Justice Davis should have disclosed the Learjet transaction,” Maloney wrote in a release. “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, Stauffer and 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,” 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.

“Considering recent events,” Stauffer concluded, “when you hear questionable noises coming from your car it probably makes sensed to take a look under the hood.”

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