CHARLESTON, W. Va. - While Massey Energy's case against it continues, attorneys for the West Virginia Supreme Court of Appeals are asking for an appeal of a federal judge's decision not to dismiss the suit.
"Because immediate appeal from the Court's Order may materially advance the ultimate termination of the litigation, certification is appropriate," wrote members of the Tinney Law Firm in the motion.
U.S. District Judge for the Southern District of West Virginia John T. Copenhaver Jr. must grant the interlocutory appeal, which would be heard by a federal appeals court.
The case concerns statements made by current Supreme Court Justice Larry Starcher concerning Massey and its CEO, Don Blankenship. Massey argues that Starcher has shown a personal bias against both, and that the company (and subsidiary Marfolk Coal) would be unfairly treated if Starcher is allowed to participate in the cases against Massey currently before the Court.
Starcher has publicly called Blankenship "stupid" and "a clown." Two major jury awards against Massey are before the court, a $243 million award in a contract dispute and a $76 million Boone County award. The Boone appeal was heard in October, though Starcher did not attend. He will still participate in the decision.
"(T)he West Virginia Supreme Court held in Bagley that it lacked the constitutional authority to 'disqualify summarily a justice from participation in a particular case,'" the motion says. "Thus, even if Rule 29 (of the West Virginia Rules of Appellate Procedure) was amended, the West Virginia Supreme Court would still lack the constitutional authority to force a justice to recuse himself or herself from a particular case."
Recently, Starcher again refused to recuse himself from a case after drawing attention to Colgan Air counsel Shaleeza Altaf's Pakistani heritage in a discrimination case brought against it by a former Pakistani employee. He called Altaf an "argument prop" and "window dressing."
In Massey's complaint, it does not name Starcher as a defendant, yet provides the following examples of his behavior:
* 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 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. He has a very special interest in owning a seat on the Supreme Court."
In the complaint, Massey disputes some of Starcher's comments, noting that Blankenship has "spent most of his life in West Virginia." Also, it contends that Blankenship's participation in the political process - he spearheaded a group that backed Benjamin in the race - does not mean he "sought nor accomplished the goal of 'owning a seat on the Supreme Court.'"
Massey also says the statement about EPA violations is false.
* When Marfork sought to disqualify Starcher in a case in which Marfork sought review of a permitting decision by the state Department of Environmental Protection, Starcher denied the motion.
"True, I have said that, in my opinion, Massey has not been a good corporate citizen," Starcher wrote in the June 16, 2005, memorandum decision. "I read papers and form personal opinions as other people do."
Then, the complaint states, "after analogizing to prior cases before the court involving infamous behavior, including murder, drunk driving, child abuse and domestic violence, Justice Starcher concluded: 'So, as one can see, this is not the first time I have been asked to sit in judgment of a part for which I may have less than full respect ...'"
* On Oct. 26, 2005, Starcher was quoted in the Bluefield Daily Telegraph newspaper about Blankenship's participation in the political process.
"I think he has no real concern or interest in the betterment of West Virginia," Starcher told the paper. "I think he's simply on an egomaniac trip and is trying to better the bottom line of his coal company."
* The next day Starcher sent Blankenship a note in the mail that seemed to be in his own handwriting.
"Dear Mr. Blankenship," the note on Supreme Court stationery began. "Some reading information to help you 'keep the record straight.'"
It was signed by Starcher with the post script, "I paid the postage."
Attached was a copy of Starcher's curriculum vitae, a document written by Starcher entitled "an abbreviated autobiography" and a document containing Starcher's career biography, including a picture of Starcher.
The picture was autographed, "Best wishes to a 'fine West Virginian' ----- L. Starcher 10/27/05."
* The following day, Starcher spoke at the annual West Virginia Political Science Association meeting. He spoke to a local television reporter about Blankenship.
"I think he's a clown, and he's an outsider, and he's running around this state trying to buy influence like buying candy for children. And, I think it's disgusting. ...
"He's stupid. He doesn't know what he's talking about ... I'm certainly not afraid of him."
* Three days later, on Halloween 2005, Marfork renewed it disqualification of Starcher. He denied the motion without explanation.
* On April 5, 2006, the plaintiffs sought to have Starcher disqualified in the "$60 million case" Starcher commented on to the Virginia trial lawyers. Again, he refused to disqualify himself.
That case - State of West Virginia ex rel A.T. Massey v. The Honorable Jay M. Hoke - stemmed from a case brought against Massey and its subsidiaries by Hugh Caperton, Harman Development Corp., Harman Mining Corp. and Sovereign Coal Sales Inc.