Starcher on other side of recusal issues

John O'Brien Jan. 23, 2008, 4:00pm





CHARLESTON, W. Va. - Justice Larry Starcher of the West Virginia Supreme Court of Appeals could offer a little advice to two of his colleagues about how to successfully navigate through a recusal controversy.

Unfortunately for Chief Justice Spike Maynard and Justice Brent Benjamin, Starcher is helping stir the recusal pot.

Certainly no stranger to similar issues, Starcher says Benjamin should remove himself from a case previously decided by the Court. A 3-2 vote overturned a $60 million verdict against Massey Energy and its CEO Don Blankenship, a campaign contributor to Benjamin.

In 1996, Starcher was a Monongalia Circuit Court Judge running for the state Supreme Court. Called into question were campaign contributions from firms that represented plaintiffs suing companies over asbestos exposure.

In May of that year, a group of lawyers filed a complaint against Starcher because he had received more than $36,000 in contributions from those firms.

It took three months of controversy, but Starcher reluctantly complied.

"There is no rational basis upon which to disqualify me," Starcher said.

Almost 12 years later, Starcher has changed his stance. Because Benjamin's campaign benefited from almost $3 million of Blankenship's money in Benjamin's 2004 race against Democrat Warren McGraw, Starcher has claimed Blankenship bought a seat on the Supreme Court and called him "stupid" and "a clown."

Massey thought it had escaped the financial obligation that had ballooned to more than $75 million with interest and stemmed from a coal contract dispute with Harman Mining Co., as the majority ruled the Virginia-based company had no standing to bring the action against Massey in West Virginia because of a forum-selection cause in the contract.

Starcher has not publicly asked Benjamin to recuse himself.

"Justice McGraw was not opposed in the general election by some neophyte lawyer named Brent Benjamin," Starcher has said. "He was opposed by a Richmond, Va., resident named Don Blankenship, who poked $4 million into defeating 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. Coincidentally, Massey Coal, which Don Blankenship is a CEO, has a $60 million case on appeal in our court at this time. He has also - his coal company - has more EPA violations than all other coal companies put together in West Virginia (a statement Massey denies). He has a very special interest in owning a seat on the Supreme Court."

Harman owner Hugh Caperton recently provided the Court with pictures of Blankenship and Maynard in Monaco. The two have said they decided to meet up when they found out they were vacationing in the same place.

Caperton asked that Maynard recuse himself, and Maynard did so last week. Facing re-election later this year, Maynard has much more to lose than Benjamin.

Starcher has taken an active interest, writing to Supreme Court Administrator Steve Canterbury to ask that none of the evidence be misplaced or destroyed. He also recently asked that someone investigate the nature of the relationship between Maynard and Blankenship.

It's probably not the ideal start to Maynard's year. In his perfect world, he would have a productive year as Chief Justice and be re-elected.

Starcher, who has said he will not seek re-election this year, went through a tumultuous campaign in 1996. Not only did he receive criticism for accepting the money of asbestos lawyers, he was spotted eating at a restaurant in Charleston with James Humphrey, who had several dozen asbestos cases pending before Starcher.

Humphreys responded by claiming a defense lawyer in the same cases sponsored a fundraiser for Starcher.

Also that year, Steptoe & Johnson attorney Richard Yurko claimed Starcher pulled him aside to express frustration that defense attorneys were not contributing to his campaign. Starcher disputed that claim, saying Yurko was "wrong about everything that counts" in Yurko's affidavit.

Less than a week before a hearing to discuss Yurko's allegations, Starcher stepped down from a case involving Steptoe & Johnson.

Through all the criticism, Starcher came out successful. Even the Wall Street Journal used him as an example of why judges should not be elected based on their political parties.

Much like Starcher that year, Maynard felt the best course of action was to recuse himself to maintain the appearance of impartiality on his court.

Because of his public comments about Blankenship, Massey sued the Supreme Court in an attempt to force Starcher to recuse himself from all its pending cases. Starcher refused, just as he did when an airline company asked the same.

Starcher had called the company's Pakistani co-counsel "window dressing" and an "argument prop" for the discrimination case brought by a former pilot of Pakistani descent.

"It is not enough to do Justice -- Justice also must be satisfy the appearance of Justice," Maynard said last week in a memo to Supreme Court Clerk Rory Perry. "I have decided to voluntarily recuse myself from this case.

"I will recuse myself despite the fact that I have no doubt in my own mind and firmly believe I have been and would be fair and impartial in this case. I know that of a certainty."

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