This article originally provided by The Charleston Gazette

January 22, 2008

Starcher stepped down from ’96 case

Motion cited campaign contributions; high court debate to resume Thursday

By Paul J. Nyden
Staff writer

Debate will resume Thursday over who decides whether the state Supreme Court reconsiders its Nov. 21 dismissal of a $76.3 million Boone County verdict against Massey Energy.

The case involves a Harman Mining coal supply contract. Harman is owned by Hugh M. Caperton.

Last week, Supreme Court Justice Brent Benjamin refused motions to disqualify himself, filed because $3 million from Massey CEO Don Blankenship aided his 2004 campaign.

Facing similar criticisms in 1996, Justice Larry Starcher disqualified himself from presiding over a major court case filed by people who claimed that exposure to asbestos fibers damaged their health.

Owens-Corning Fiberglass and 40 other companies filed a motion at that time to disqualify Starcher, then a circuit judge in Monongalia County.

In a May 24, 1996, motion, Owens-Corning argued Starcher was biased because he received $36,500 in campaign contributions for his Supreme Court race from lawyers, and their relatives, who represented asbestos victims.

Starcher’s contributions included $1,000 each from now-Justice Robin Davis and her husband, Scott Segal, who headed a Charleston law firm representing plaintiffs in asbestos cases.

“A reasonable and objective person knowing of the timing and amounts of such large campaign contributions by lawyers representing plaintiffs ... would indeed harbor doubts about Judge Starcher’s impartiality,” stated a later Owens-Corning motion filed on July 24.

“The test [for disqualification] is whether a reasonable and objective person off the street would harbor doubts of impartiality,” the motion added. “The goal of courts is to avoid even the appearance of impropriety.”

On Aug. 14, 1996, Starcher notified the Supreme Court he would disqualify himself from the asbestos cases, a decision approved by then-Chief Justice Thomas E. McHugh six days later.

Charles M. McElwee, a partner in the Charleston law firm of Robinson & McElwee, signed the July 24 petition asking Starcher to recuse himself.

In January 2005, when Benjamin took office as a Supreme Court justice, he hired McElwee as his law clerk.

On Monday, McElwee declined to comment on his 1996 motion.

“You will have to ask him [Benjamin]. I don’t want to comment on what the court does as a whole, or on what individual justices do.

“Quite frankly, I have not been involved in that issue [the current recusal request] with him,” McElwee added.

The Supreme Court was not in session Monday, a holiday. Benjamin did not return telephone calls placed to his home.

Benjamin’s written release on Friday stated the latest motion seeking his “disqualification comes over three years after the 2004 election and focuses entirely on that election. 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.”

Bruce Stanley, a Pittsburgh lawyer who represents Caperton, criticized Benjamin on Monday, stating: “It isn’t our duty to discover the nature of his relationship with Don Blankenship. It’s his duty to disclose it.

“It’s not whether he thinks he can be fair. It’s whether an objective observer thinks there is an appearance of impropriety — over $3 million spent on a judicial campaign that otherwise raised only a few hundred thousand dollars. How could anyone not conclude he should sit this one out?” Stanley asked.

New criticisms have also been directed at Starcher for recent public statements criticizing Massey and Blankenship.

Starcher rejected motions from Massey to disqualify himself from the Harman-Caperton case.

Benjamin also refused to recuse himself from the Harman case in April 2006, in response to an earlier motion filed by lawyers for Harman and Caperton in October 2005.

Benjamin’s campaign, that motion pointed out, received major contributions from Blankenship and other coal interests, including:
$2,460,500 to an independent 527 group called And For the Sake of the Children. Operating independently of Benjamin’s own committee, the 527 group also received $223,000 from the West Virginia Coal Association.
$515,708 in “independent expenditures” to fund political consultants and accounting services, as well as television, radio and newspaper ads.

Chief Justice Spike Maynard agreed last week to recuse himself from the Harman case after lawyers for the coal company filed pictures showing Maynard and Blankenship while both were vacationing in Europe.

During Thursday’s discussion about the Harman case, Maynard will be replaced by Circuit Judge Donald H. Cookman, whose district includes Hampshire, Hardy and Pendleton counties.

To contact staff writer Paul J. Nyden, use e-mail or call 348-5164.