CHARLESTON, W. Va. - The clouds of controversy surrounding West Virginia Supreme Court Justice Larry Starcher became a lot darker recently.
Friday, an airline company filed to have Starcher removed from hearing its case on the grounds that during a Sep. 18 hearing, he made an inappropriate comment about one of its attorneys' heritage that shows a bias against it.
Also on Friday, a federal judge refused to dismiss the lawsuit brought by Massey Energy against the state Supreme Court that makes similar requests for the removal of Starcher from its cases.
Colgan Air, Inc., says Starcher should recuse himself from its case because he asked Colgan's co-counsel if she was of Pakistani descent. Fellow attorney Mark Dombroff replied in the affirmative, to which Starcher responded, "That's what I thought."
Rao Zahid Khan, fired by Colgan, had successfully filed suit against the company, which was found liable for harassment and discrimination based on Khan's Muslim and Pakistani heritage. During Colgan's appeal before the Supreme Court, Starcher asked what Colgan calls, "an inappropriate and irrelevant question" about Shaleeza Altaf's ancestry.
The hearing took place at Marshall University. According to a story in last week's edition of The Record, Starcher dropped his writing instrument on the table and leaned back in his chair before responding to the answer.
Those in attendance shrieked and gasped, the story says.
"Justice Starcher's conduct during the oral argument of this matter violated Canons 1 and 3 of the West Virginia Code of Judicial Conduct, and creates, at the very least, a serious appearance of impropriety that disqualifies Justice Starcher from deciding any matter in this appeal," Colgan attorney Brian Moore of Jackson Kelly wrote.
"Justice Starcher's voluntary and public question/comment regarding the national origin of Appellant's counsel strongly suggests that he will be unable to render an impartial decision in this case, which involves allegations of discrimination by Appellee Khan based on his Pakistani and Muslim heritage, and thus is required to disqualify himself."
Altaf is an attorney from the Washington D.C. branch of Dombroff, Gilmore, Jacques and French. She was admitted to the Virginia Bar in 2003 and one of her listed practice areas is aviation defense, along with products liability, general negligence and insurance law.
Starcher quickly filed a two-page response, submitted Wednesday, in which he refused to step down.
"I want to assure Mr. Dombroff and Ms. Altaf that absolutely nothing I said during our Sept. 18 oral argument session should be construed to be a showing of bias or discrimination on my part toward their client, Colgan Air," Starcher wrote.
"Quite frankly, it was a 'brusque' response to Mr. Dombroff's somewhat strident finger-pointing during presentation to the Court.
"I simply chose to 'call Mr. Dombroff's hand' by pointing out what I consider the 'argument prop,' the 'window dressing' that he was using -- hoping to enhance his argument, in my opinion."
Starcher then commended Dombroff and Colgan Air for promoting diversity in the legal profession, but added that "it should not be put on display as a prop in arguing a case before our Court."
Colgan says that even if Starcher does not hold a personal bias, he has created the appearance of one. Avoiding the appearance of impropriety, Moore wrote, is just as important in state law.
"Justice Starcher's comments undermine public confidence in the integrity, independence and impartiality of the West Virginia judiciary," Moore wrote. "To support its allegation that Justice Starcher's impartiality may reasonably be questioned, Colgan Air has presented Justice Starcher's own words, leaving no room for rumor or suspicion as to what his bias is."
Starcher declined a request for an interview, saying he had nothing more to add.
"I have no financial interests in this case, do not know any of the litigants, and certainly have never socialized with any of the litigants, nor do I have personal knowledge of any disputed facts in the litigation," Starcher wrote.
"I have and continue to fairly sit on this matter -- through its conclusion, and correctly and fairly apply the law."
That's something Massey CEO Don Blankenship says Starcher can't do when it comes to his company. Blankenship wants Starcher removed from all his cases, in particular the appeal of a $50 million Boone County verdict.
In the Aug. 2006 complaint, Massey made the following arguments in support of Starcher's removal:
-On Jan. 3, 2003, the State Journal reported that Starcher told a group of high school students visiting the state Capitol on Dec. 3, 2002, that coal companies were not good for the state because "they reap benefits without contributing anything in return." The complaint also states that Starcher singled out Massey in that criticism.
-Starcher criticized Massey in a public radio interview after the November 2004 election that saw Brent Benjamin - a Republican candidate personally supported by Blankenship - defeat incumbent Justice Warren McGraw for a seat on the Court.
"What we're going to see is we're gonna see Massey Coal and the big out-of-state insurance companies and huge mega-corporations buy a seat on our Supreme Court, and I'll be very sad to sit on the Supreme Court for the next four years, quite frankly," the complaint quotes Starcher's radio interview. "I hate to see out-of-state money be used in such an obscene way as it was in this race to buy a seat on the Supreme Court and attempt to control it. It saddens me very much."
-Before the election, Starcher also said that if Benjamin defeated McGraw, "Don Blankenship and the Massey Coal Company will own the West Virginia Supreme Court."
-At the 2005 annual conference of the Virginia Trial Lawyers Association, Starcher again spoke of Blankenship, Massey and the 2004 election.
"Justice McGraw was not opposed in the general election by some neophyte lawyer named Brent Benjamin," Starcher is quoted as saying. "He was opposed by a Richmond, Va., resident named Don Blankenship, who poked $4 million into defeated 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 ..."
U.S. District Judge John Copenhaver said more was needed to grant the Supreme Court's motion to dismiss Massey's lawsuit. He also gave the company an opportunity to respond to the Court's recent allegation that Massey did not have proper standing to bring the suit.
"In a belated attempt to salvage its motion to dismiss, the Supreme Court of Appeals of West Virginia raises a new argument in its reply brief: that Massey Energy Co. and Marfolk Coal Co. lack standing to bring this action," Massey's surreply says.
"As the complaint makes clear, Plaintiffs have alleged an imminent injury caused by an unconstitutional appellate rule of procedure, which would be fully redressed by an amendment to the rule. It is thus indisputable that Plaintiffs possess the requisite standing to bring this suit, and the motion to dismiss should be denied."
Chief Justice Robin Davis and justices Benjamin and Spike Maynard each voted last year to skip over Starcher for his term as chief justice. Davis retained the position for a second straight year.
Anonymous sources say Starcher has applied to become executive director of the state's Bar Association. His 12-year term as Supreme Court Justice concludes next year.