Starcher hoping recusal cleanses Court

By John O'Brien | Feb 19, 2008





CHARLESTON, W. Va. - The West Virginia Supreme Court's most outspoken justice will step aside in a case involving his longtime adversary.

Justice Larry Starcher recused himself Friday from Harman Mining's $76 million lawsuit against Massey Energy and its CEO, Don Blankenship. In doing so, he called for Justice Brent Benjamin, whose campaign was heavily supported by Blankenship, to do the same.

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.

"As a judge I am limited in my public comments, but I do have a constitutional right -- and, in fact, a duty -- to speak out on matters affecting the administration of justice," Starcher wrote. "And let me be clear about this: I believe Mr. Blankenship's conduct does have an effect on the administration of justice, in that it has become a pernicious and evil influence on that administration."

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, Harman owner Hugh Caperton produced photographs of Blankenship and current Chief Justice Spike Maynard together in Monaco. 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.

Since then, the justices unanimously decided to hear Harman's case again. Maynard has already recused himself from it and was joined by Starcher, who has called for an investigation into the extent of Maynard's and Blankenship's friendship.

"The simple fact of the matter is that the pernicious effects of Mr. Blankenship's bestowal of his personal wealth, political tactics and 'friendship' have created a cancer in the affairs of this court," Starcher wrote.

Hampshire County Circuit Judge Donald Cookman and Marion Circuit Judge Fred Fox II have been appointed by Benjamin, the acting Chief Justice in the case because of Maynard's recusal, to fill out the Court.

In his brief, Starcher continued to attack Blankenship over his support of Benjamin. Blankenship spent millions of dollars on Benjamin's 2004 campaign with the hopes of unseating Warren McGraw.

In 1996, Starcher recused himself from a Monongalia County asbestos case involving contributors who gave him $36,000 for his Supreme Court campaign.

"I believe that $36,500 pales in comparison to $4 million," Starcher wrote. "I also believe that there is a significant difference between campaign contributions from lawyers who have a vested interest in a fair, impartial and efficient judiciary, and a very active litigant who had lawsuits pending in the Court at the very moment he made huge amounts of money available to support a justice's election, and whose only vested interest in the Court is 'winning his cases.'

"Just think about it -- $4 million! I know hardly a soul who could believe that a justice who benefited to this extent from a litigant could rule fairly on those cases involving that litigant or his companies -- or appoint judges to sit on those cases. This is the very definition of 'appearance of impropriety.'"

Then-Chief Justice Robin Davis' original majority opinion in the case ruled that a forum-selection clause in the coal contract required all legal actions to be brought in a county in Virginia. To the opinion, Starcher said "Horse puckey!" in his dissent, and he continued to focus on his dislike for Blankenship throughout.

Benjamin criticized Starcher for not basing his dissent on legal issues, calling it "emotion-laden verbiage which could easily be perceived as showing an apparent grudge or personal animosity should never serve as the basis for a separate opinion at the appellate level."

Maynard has recused himself from two other Massey cases, one involving the proximity of one of its silos to an elementary school (the state's Department of Environmental Protection urged the Court not to hear the appeal of a citizens group) and the other a $240 million Brooke County verdict in favor of Wheeling-Pittsburgh Steel Corp. and Mountain State Carbon.

Starcher has not yet recused himself from those cases. Wheeling-Pitt and Mountain State Carbon filed a brief asking for Benjamin's recusal.

"(T)he pernicious effects of Mr. Blankenship's bestowal of his personal wealth and friendship have created a cancer in the affairs of this Court," Starcher wrote. "And I have seen that cancer grow and grow, in ways that I may not fully disclose at this time.

"At this point, I believe that my stepping aside in the instant case might be a step in treating that cancer -- but only if others as well rise to the challenge.

"If they do not, then I shudder to think of the cynicism and disgust that the lawyers, judges and citizens of this wonderful state will feel about our justice system."

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