This article originally provided by The WV Record

Aug. 11, 2006

Massey sues state Supreme Court

By Chris Dickerson - Charleston Bureau

CHARLESTON - Massey Energy has sued the West Virginia Supreme Court because it doesn't think it can be treated fairly by the Court because of past comments made by Justice Larry Starcher.

"No man should be his own judge," said Shane Harvey, senior corporate counsel for Massey Energy. "That's the principal we're looking at here.

"He should not be his own judge. It should not be him who decides if he can be fair in the case."

Massey contends Starcher "has shown a strong personal bias against plaintiff Massey Energy, and plaintiff Massey Energy's Chairman and Chief Executive Officer Don L. Blankenship."

Massey and subsidiary Marfork Coal Company are listed as plaintiffs in a lawsuit filed Tuesday in U.S. District Court in Charleston. The companies seek declaratory and injunctive relief on the grounds that part of the West Virginia Rules of Appellate Procedure violates their Fourteenth Amendment right to a fair trial.

"We, of course, have complete confidence in the judicial system," said Supreme Court spokeswoman Jennifer Bundy, declining further comment.

The rule in question - Rule 29 - allows a single justice of the state Supreme Court who is the subject of a disqualification motion to determine whether he should disqualify himself.

"Because plaintiffs are likely to appear before the West Virginia Supreme Court in the future, their disqualification motions will be subject to Rule 29," the complaint states.

In the complaint, Massey includes numerous instances in which Starcher has violated the Code of Judicial Conduct by making comments about the plaintiffs.

Here are some of the examples mentioned in the complaint:

* 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, Virginia, 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

"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.

In 1998, those parties filed the suit against Massey Coal, Elk Run Coal Co., Independence Coal Co., Marfork Coal Co., Performance Coal Co. and Massey Coal Sales Co. alleging Massey was liable for damages arising out of a series of transactions that also were the subject of a separate lawsuit in Virginia. A seven-week trial began in May 2002 in Boone County Circuit Court, and it ended on Aug. 1, 2002. The jury ruled against Massey, which was ordered to pay more than $50 million in damages.

In June, Massey filed a federal lawsuit against Boone Circuit Court reporter Jennifer Meadows, claiming she "intentionally misrepresented her ability to produce a transcript" for the 2002 trial. Massey also claims Meadows' actions have caused the company "substantial financial damages."

Massey claims Meadows violated its constitutional right for failing to transcribe a complete transcript and that she "negligently prepared the transcript by failing to utilize proper transcribing methods." Massey also says Meadows fraudulently said she was too busy to produce the transcript when, in fact, she could not produce one.

Massey contends Hoke's impartiality might be in question because he has a long working relationship with Meadows.

"It is a well-documented and clearly expressed bias," Harvey said Friday about Starcher's feelings toward Massey. "We wanted the court to understand this isn't a fight of our making. It's an issue that a court needs to decide.

In the complaint, Massey notes that has one case pending before the state Supreme Court and at least one other case on which it has petitioned for review. Also, Massey says it currently is a party in at least 12 actions in state circuit courts and "each of those proceedings is reasonably and imminently likely to come before the West Virginia Supreme Court."

Marfork, the complaint states, is a party in at least six circuit court cases and says each of those could end up at the Supreme Court as well.

"We just think other justices should set up this system. The court is perfectly capable of setting up a system to let neutral parties review these motions."

In the complaint, filed by Charleston attorney Scott Caudill and Washington, D.C., attorney Robert D. Luskin, Massey and Marfork seek to have Rule 29 declared invalid and unconstitutional because it fails to provide for a fair hearing and fails to satisfy the appearance of justice.

The plaintiffs also seek to have the Federal Court order the state Supreme Court to amend Rule 29 so that it provides for a fair hearing before an impartial tribunal of all motions for disqualification. They also seek court costs, attorney fees and other relief.

Harvey said the decision to file the suit against the Supreme Court wasn't an easy one.

I want to make it clear that Massey has a great deal of respect for the court, and we brought the lawsuit reluctantly," he said. "But we felt that we had no choice given the statements by Justice Starcher and his continued refused to disqualify himself."


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