West Virginia Supreme Court Justice Larry Starcher recused himself Friday afternoon from participating in any more proceedings about the Boone County verdict for Harman Mining and Hugh Caperton, now worth $76.3 million, against Massey Coal and five of its subsidiaries.
Three days later, on Jan. 24, Benjamin named Circuit Judge Donald H. Cookman of Hampshire County to replace Maynard.
Late Friday afternoon, Benjamin named Marion County Circuit Judge Fred L. Fox II to replace Starcher in the Harman appeal.
When the court meets on March 12 to reconsider its Harman ruling, Benjamin and his two appointees could be a three-member majority on the five-member court.
Earlier this month, on Feb. 7, Benjamin named Judge Frank E. Joliffe as a temporary justice to replace Maynard in another appeal filed by Massey and Blankenship seeking to overturn a July ruling by a Brooke County jury.
In that case, the jury awarded nearly $240 million to Wheeling-Pittsburgh Steel because Massey breached a coal supply contract it had signed with the steel company.
Today, Starcher believes the Supreme Court faces a growing credibility crisis.
"The 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. "I have seen that cancer grow and grow, in ways that I may not fully disclose at this time."
Bruce E. Stanley, a Pittsburgh lawyer who represents Caperton, said Friday, "We commend Justice Starcher on his decision to step down from this case in his effort to preserve the integrity of the court.
"How Justice Benjamin can ignore the obvious and continue to sit on this case, especially as the acting chief justice with its power of appointment, is disturbing and inexplicable."
Robert V. Berthold Jr., a Charleston lawyer who represents Harman, said, "Justice Starcher's professionalism in attempting to avoid even the appearance of impropriety is noteworthy. It is unfortunate he has been unfairly maligned by certain parties over the years."
Benjamin would not comment on the ongoing debate.
Jennifer Bundy, a Supreme Court spokeswoman, said, "It is the policy of Justice Benjamin not to comment on matters pending before the court."
To contact staff writer Paul J. Nyden, use e-mail or call 348-5164.
West Virginia Supreme Court Justice Larry Starcher recused himself Friday afternoon from participating in any more proceedings about the Boone County verdict for Harman Mining and Hugh Caperton, now worth $76.3 million, against Massey Coal and five of its subsidiaries.
On March 12, the Supreme Court will hold a hearing to reconsider its 3-2 ruling, released on Nov. 21, overturning that verdict.
Starcher filed an 11-page document stating that he removed himself from the case because people have attacked him for making negative statements about Massey Energy and Don Blankenship, the company's CEO.
Starcher's filing also asked Justice Brent Benjamin to step aside from future hearings in the Harman case, because Blankenship and his associates raised $4 million in 2004 to fund Benjamin's campaign against incumbent Justice Warren McGraw.
Massey also filed a federal lawsuit against the state Supreme Court that is pending before U.S. District Judge John Copenhaver in Charleston. That lawsuit alleges that Starcher's refusal to disqualify himself from cases involving Massey and its subsidiaries violates their constitutional rights.
In his statement Friday, Starcher noted, "Nowhere in that lawsuit do they acknowledge that Mr. Blankenship, his money and his friendship have far more egregiously tainted the perceived impartiality of this court than any statement by me."
Starcher also wrote that Benjamin "not only remains on this case, as well as other Massey cases before the court, but that justice continues at this time to appoint replacement judges in all Massey cases."
Starcher's statement also quoted a July 1996 legal memorandum asking him to step down as Monongalia County circuit judge in an asbestos trial. Starcher, then running for the Supreme Court, stepped down.
Charles R. McElwee, whose Charleston law firm represented asbestos-producing defendants in that case, wrote the memo stating that Starcher was biased because he received $36,500 from lawyers representing plaintiffs injured by asbestos.
"A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny," wrote McElwee, who is now Benjamin's senior law clerk, but who does not hold any office at the Supreme Court.
"I believe that $36,500 pales in comparison to $4 million," Starcher wrote on Friday. "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 [Massey] would fairly rule on cases involving that litigant.... This is the very definition of 'appearance of impropriety.'"
Benjamin became the Supreme Court's acting chief justice in the Harman case after Justice Elliott "Spike" Maynard stepped down on Jan. 21.
Maynard recused himself after Caperton filed 34 photographs with the Supreme Court showing Blankenship and Maynard together on the French Riviera in July 2006. (Each apparently was accompanied by female friends on their trips.)
Three days later, on Jan. 24, Benjamin named Circuit Judge Donald H. Cookman of Hampshire County to replace Maynard.
Late Friday afternoon, Benjamin named Marion County Circuit Judge Fred L. Fox II to replace Starcher in the Harman appeal.
When the court meets on March 12 to reconsider its Harman ruling, Benjamin and his two appointees could be a three-member majority on the five-member court.
Earlier this month, on Feb. 7, Benjamin named Judge Frank E. Joliffe as a temporary justice to replace Maynard in another appeal filed by Massey and Blankenship seeking to overturn a July ruling by a Brooke County jury.
In that case, the jury awarded nearly $240 million to Wheeling-Pittsburgh Steel because Massey breached a coal supply contract it had signed with the steel company.
Today, Starcher believes the Supreme Court faces a growing credibility crisis.
"The 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. "I have seen that cancer grow and grow, in ways that I may not fully disclose at this time."
Bruce E. Stanley, a Pittsburgh lawyer who represents Caperton, said Friday, "We commend Justice Starcher on his decision to step down from this case in his effort to preserve the integrity of the court.
"How Justice Benjamin can ignore the obvious and continue to sit on this case, especially as the acting chief justice with its power of appointment, is disturbing and inexplicable."
Robert V. Berthold Jr., a Charleston lawyer who represents Harman, said, "Justice Starcher's professionalism in attempting to avoid even the appearance of impropriety is noteworthy. It is unfortunate he has been unfairly maligned by certain parties over the years."
Benjamin would not comment on the ongoing debate.
Jennifer Bundy, a Supreme Court spokeswoman, said, "It is the policy of Justice Benjamin not to comment on matters pending before the court."
To contact staff writer Paul J. Nyden, use e-mail or call 348-5164.
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