Starcher sticking with Massey case

John O'Brien Apr. 24, 2008, 2:19pm





CHARLESTON, W. Va. (Legal Newsline) - Stepping aside from one Massey Energy case was apparently enough for West Virginia Supreme Court Justice Larry Starcher.

Starcher announced Thursday that he will not recuse himself from a Massey's appeal of a $240 million Brooke County verdict in favor of Wheeling-Pittsburgh Steel Corp. and Mountain State Carbon.

He had recused himself from re-hearing a $76 million appeal involving Massey and Harman Mining Co. and urged Justice Brent Benjamin, who benefited from the millions of dollars spent by Massey CEO Don Blankenship in the 2004 election, to do the same.

Benjamin did not.

"I acted in the (Harman owner Hugh) Caperton case because I wanted to help restore public confidence in this Court. But the hoped-for stepping aside by the justice whose election so greatly benefitted from Massey's CEO did not occur," Starcher wrote.

"Instead, that justice ended up as the Acting Chief Justice in the Caperton case. He appointed my replacement, and both he and my replacement cast votes for Massey in the rehearing of the Caperton case. As a result, it seems likely that public confidence in the Court's decision in the Caperton case is close to zero."

Harman Mining was awarded $60 million by a Boone County jury in its coal contract dispute with Massey and interest pushed the figure to $76 million, but the Supreme Court in November overturned the decision with a 3-2 vote.

Shortly after, Caperton produced photographs of Blankenship and Maynard together. Maynard admitted he is a longtime friend of Blankenship's, claimed the two coincidentally were vacationing at the same place at the same time and provided documentation that showed Massey did not pay for his trip.

The justices unanimously decided to hear Harman's case again, but even without Maynard and Starcher the result did not change.

Starcher has publicly called Blankenship "stupid" and "a clown," leading to a lawsuit filed by Massey against the Supreme Court with the goal of forcing Starcher to disqualify himself from all Massey cases.

On an ABC News report, Maynard said the only favors he and Blankenship gave to each other were buying the other a dinner. Starcher focuses heavily on their relationship, even though Maynard has already recused himself from all pending Massey cases and ruled against the company in a case last year.

"I have a pretty good idea -- based on the photographs submitted to this Court, some under seal -- that the dinner in question was not consumed at an IHOP or even an Applebee's," Starcher wrote.

"No, the meal that Mr. Blankenship likely bought for the Chief Justice was served in a very nice restaurant in or near the ancient principality of Monaco. Imagine the scene: It is the height of the summer season on the Riviera, when the world's wealthy come to Monaco, some by air and many by yachts, to gamble, socialize, drink, and dine.

"I really do not know the prices for meals in this rich man's world, but, for sure, they equal or are in excess of meals in even our most expensive American venues. A 'dinner' -- cocktails, appetizer, entree and dessert-- in a Monte Carlo casino restaurant for four could well approach $1,000 or more dollars.

"And we now know that Mr. Blankenship picked up at least one of these checks. Just imagine -- with a $70 million-plus case pending before the Justice who is seated across from him, Mr. Blankenship leans forward and picks up the check, and says to his 'good friend,' -- 'I'll get that, Judge.'"

Wheeling-Pitt has asked for Benjamin to recuse himself from its case, but Benajmin says he will not.

"The motion seeking disqualification comes over three years after the 2004 election and focuses entirely on that election," Benjamin wrote. "It contains nothing about this Justice's record on the Court.

"There are no allegations that this Justice has or has had any relationship with Mr. Blankenship or any party in this litigation, or that he ever represented Mr. Blankenship or any Massey company in his 22-plus years of private practice. Nor is this Justice aware of any basis by which this Justice should disqualify himself."

That's not good enough for Starcher.

"Here's my quandary as a justice committed to doing justice and promoting public confidence in the courts: If I alone step aside in the instant Wheeling-Pitt case, my replacement will be selected by an Acting Chief Justice whose campaign was supported by over $3.5 million from the CEO of a litigant in the case, a man whose conduct in relation to this Court while that litigant had pending cases before this Court is under a grave cloud," Starcher wrote.

"And if I alone step aside, that Acting Chief Justice will both appoint my replacement and vote on issues affecting that litigant -- even though according to the arguments of the Acting Chief Justice's Senior Law Clerk, a judge should step aside in such a case because of such reasonable concerns by the public.

"And if I alone step aside, then what will the parties to the lawsuit, and our citizens, think about the fairness of our Court? In good conscience, trying my best to fulfill my responsibility to the people of West Virginia in difficult circumstances, I cannot step aside and allow this additional 'travesty' to happen."

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