CHARLESTON – An insurance company questions why a former state Supreme Court justice still is overseeing a case as a senior status judge when a new circuit judge was elected four years ago.
Hartford Casualty Insurance Company filed a Petition for Writ of Prohibition with the state Supreme Court against Larry Starcher.
“Does the temporary assignment of a retired senior status justice due to the original circuit judge’s conflict of interest expire when a new circuit judge who has no such conflict, such that the case should be transferred to the elected judge?” Hartford’s petition asks. “Does the absence of defined written criteria governing the factors to be considered by this court in deciding whether a retired senior status judge’s temporary assignment to a case survives the election of a new circuit court judge in that court create a due process defect as applied to litigants like Hartford, rendering the retired senior status judge’s decision to stay on the case based on informal criteria arbitrary and capricious?”
The originating case was filed March 30, 2016, in Preston Circuit Court. Westridge Estate LLC filed the complaint against Preston Funeral Enterprises LLC and Hartford. It originally was assigned to Circuit Judge Lawrance Miller, who was the only circuit judge in Preston County at the time.
Hartford was a defendant in the original complaint as well as a defendant in a cross-claim filed by co-defendant Preston Funeral Enterprises. The original complaint involved Westridge’s allegation that Preston Funeral Enterprises was negligent in allowing vandalism to occur at a commercial property and that Hartford didn’t pay enough for the vandalism loss and, thus, acted in bad faith.
On September 6, 2016, Miller wrote then-Chief Justice Menis Ketchum asking to be voluntarily disqualified from the case because of a perceived conflict of interest raised by Westridge. Nine days later, Ketchum signed a recusal for Miller and recalled Starcher for temporary assignment.
In November 2017, Miller announced he was retiring from the bench in January 2018. Starcher assumed responsibility for portions of Miller’s docket upon his retirement and before a new circuit judge was elected in May 2018. Steven Shaffer was elected to replace Miller.
Hartford removed the case to federal court in June 2018, but it was remanded back to state court on September 7, 2018. Hartford said online records and a phone call to the Preston County Circuit Clerk confirmed that Shaffer was the judge assigned to the case. A few weeks later, Shaffer’s legal assistant also confirmed that fact. One of Shaffer’s law clerks also said Starcher “had been returning his temporarily assigned cases to Judge Shaffer.”
As status conferences were being scheduled, “Shaffer’s law clerk called back Hartford’s counsel to notify him that she had forgotten that she previously received an email from Justice Starcher in which Justice Starcher specifically requested to stay on this particular case.”
“Thereafter, Justice Starcher sent communications to the parties’ counsel announcing his intent to stay on the case, and inviting any party to file a motion should they believe he should not preside over the case,” the petition states.
Hartford filed such a motion December 13, 2018, Preston Funeral Enterprises filed a motion opposing that motion. Starcher set oral arguments on the motion for June 21, 2019, at the West Virginia University College of Law.
At the oral arguments, Starcher said he was denying Hartford’s motion.
“At the hearing, Justice Starcher stated that there is a practice whereupon election of a new judge, temporary judges will nonetheless ‘keep the cases they had particularly if there’s a good reason to do it,’” the petition states, adding that Starcher said such matters are addressed by the Supreme Court “very informally.”
“The history, which I’ve given you bits of, of this has been that lots of cases they generally are held in place very informally by finding out how deep the judge that has it is in to it,” the petition quotes Starcher, who went on to say he “was pretty well deep into the process of trying to get it resolved” and on that basis “decided to keep the case.” He said it “will take a lot longer if we send it back to Judge Shaffer.”
Starcher said he was told by then-Chief Justice Margaret Workman he could stay on the case.
Hartford said it expressed a concern about due process.
“Hartford voiced its position that because the decision about who is presiding over the case after the election of Judge Shaffer was done informally and through oral communications, Hartford could not determine what the applicable policies and procedures were and whether or not they were followed,” the petition states. “In addition, Hartford stated that the fact that Justice Starcher had relinquished control of his other cases except for this case raised concerns about whether Hartford was receiving different treatment from other litigants.”
Hartford asked Starcher to produce findings of fact and conclusions of law so it could explore its right to pursue writ relief. He told both parties to preparing such documents. Meanwhile, the parties engaged in discovery that didn’t require court intervention.
On May 29, 2020, Preston filed a motion to compel Hartford related to some discovery requests and responses. Hartford opposed, noting the findings of fact and conclusions of law still needed to be finalized.
Starcher held a telephone conference on July 16, 2020. On July 24, he signed findings of fact and conclusions of law supporting his decision to stay on the case.
In that ruling, Starcher noted that “our Supreme Court uses a somewhat informal system” on these assignment issues. He also said “efficiency” should dictate the case should stay with him.
“Preston … did not cite a single case in which a senior status judge was permitted to continue to preside over a case (and to be paid for their service) when there was a new, duly elected judge available with no conflict available to take over the case,” the petition states. “Preston has resorted to arguing that ‘common sense’ and ‘efficiency’ dictate that it would be easier for the senior status judge to stay on than for a busy new circuit judge to get up to speed.”
Hartford says Starcher has turned a temporary assignment into a permanent one.
“In doing so, he has cited factors – such as the busyness of Judge Shaffer’s docket – to keep the case that were not factors this court considered when it recalled him for temporary assignment to the case,” the petition states. “Once Judge Shaffer took his oath of office after being duly elected by the people of Preston County, Judge Shaffer should have presided over all cases then pending in Preston County Circuit Court, including this one. …
“There is no cognizable reason for Justice Starcher’s temporary assignment to this case to continue on a permanent basis, and Justice Starcher’s continued presence on this matter is a usurpation of the power of the duly elected Judge Shaffer in violation of W.Va. Code … and exceeds any legitimate temporary authority Justice Starcher once possessed.”
Hartford seeks a Writ of Prohibition prohibiting Starcher from presiding over the underlying case and have it transferred to Shaffer.
Starcher’s response is due September 28. He declined comment for this story.
Hartford is being represented by David L. Wyant of Bailey & Wyant in Wheeling and by Michelle B. Gatson and R. Mitch Moore of Steptoe & Johnson in Huntington.
Starcher was elected to the Supreme Court in 1996 and served until 2008. Since he retired, he has been a lecturer at the WVU College of Law and has presided over more than 100 trials as a senior status judge. Before joining the Supreme Court, the Roane County native was a Monongalia Circuit Judge for 20 years. He presided over 20,000 asbestos cases as a circuit judge.
Sometimes labeled as an activist judge, Starcher drew attention as a Supreme Court justice when he referred to former Massey Energy CEO Don Blankenship as “stupid” and “a clown,” yet refused to recuse himself from cases involving Blankenship or Massey.
West Virginia Supreme Court of Appeals case number 20-0633
