This article originally provided by The State Journal

February 21, 2008

Starcher Steps Aside in Massey Case, Lashes Out at Court

Story by Beth Gorczyca Ryan

CHARLESTON -- A lawsuit between a West Virginia businessman and one of the largest coal-producing companies in the state has resulted in another justice of the West Virginia Supreme Court of Appeals recusing himself from the proceedings.

Justice Larry Starcher announced in a 10-page document Feb. 15 that he would disqualify himself from participating in a rehearing of a lawsuit between Hugh Caperton, who owns Harman Mining Corp. and other companies, and coal giant A.T. Massey Coal Co. The coal company had asked the justice to recuse himself because of comments Starcher had made while behind the bench about the company.

Most of his recusal announcement did not deal with why he was stepping aside. Rather, it lashed out at fellow members of the state's highest court and Massey CEO Don Blankenship. Starcher called Blankenship's involvement in political action committees that focus on the judiciary a "pernicious and evil influence" on the court and its ability to administer justice.

"Mr. Blankenship's companies have sued this court in a federal court, alleging that my statements and my refusal to disqualify myself from hearing cases involving his companies violate their Constitutional rights," Starcher wrote in his recusal announcement. "But nowhere in that lawsuit do they acknowledge that Mr. Blankenship, his money, and his friendships have far more egregiously tainted the perceived impartiality of this Court than any statement by me."

Marion County Circuit Judge Fred L. Fox II has been named to replace Starcher on the Caperton case. Fox will join Circuit Court Judge Donald Cookman of Moorefield, who was appointed to hear the case late last month following Chief Justice Elliott "Spike" Maynard's recusal. Maynard stepped aside after Caperton presented photos to the court of Maynard and Blankenship vacationing together in Europe. Caperton also asked Justice Brent Benjamin to step aside because his 2004 campaign received nearly $4 million from a political action group funded by Blankenship. Thus far, Benjamin has declined to do so.

The next hearing on the case is set for March 12 at the Supreme Court.

Starcher said he decided to step aside after much introspection about the case, which stems from a 1998 lawsuit in which Caperton accused Massey of trying to put his companies out of business. The lawsuit went to trial, and a jury awarded Caperton $50 million in 2002. Since then, the amount of damages has gone up to more than $75 million, including penalties and interest.

Massey appealed that jury verdict to the Supreme Court in 2006.

In the written statement announcing his decision to step aside from the Caperton case, Starcher said the lawsuit has taken on "enormous public proportions" and has become "a problem case."

"It has become a case that is much talked about; a case in which three of the Court's five justices have been requested to step aside; and a case in which, over time, I have become a part of the problem," he wrote. "The public rightfully may not be of the opinion that all three of the justices, including me, could not be fair to one side or the other in this case, despite our best efforts or whatever we might say. There is, therefore, a reasonable appearance of impropriety.

"Still it is really the height of irony for the appellants to suggest that my public statements about certain views and practices by the appellant's CEO (Blankenship) should disqualify me from participating in the decision of the instant appeal."

He said his publicly stated opinions about Blankenship would have no impact on his ability to give the man and companies affiliated with him a fair and impartial hearing. But he said Blankenship has not been as fair to him. Starcher accused the coal company CEO of going "out of his way to bring public attention to my views," wearing a baseball cap that reads "Get Starcher" and planning to target the justice in the 2008 election had he decided to seek re-election. Starcher opted to not seek another term.

Starcher's letter accused Blankenship and other special interest groups of "creating a cancer in the affairs of this court" by spreading what he called false claims portraying the state as a judicial hellhole. He said all that title does is skew the state's justice system in favor of people who have money.

"I repeat -- the pernicious effects of Mr. Blankenship's bestowal of his personal wealth and friendship have created a cancer in the affairs of this court," he wrote. "And I have seen the 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 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."

Starcher's letter also lambasted fellow justice Benjamin -- although not directly by name -- chiding him for not stepping aside in a case that impacts the companies owned by a man who donated so generously to the group that supported Benjamin's Supreme Court candidacy.

"So far that justice has refused to recognize that this fact has a bearing on his perceived impartiality," he wrote.

Starcher said he was asked in 1996 to recuse himself from several asbestos cases by lawyers representing companies involved in the litigation. Starcher said they alleged he could not be fair because other lawyers had contributed $1,000 each, or a total of $36,500, to his Supreme Court candidacy. Starcher, who was at the time a Monongalia County Circuit Court judge, did not hear the case.

"I believe $36,500 pales in comparison to $4 million. 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 has lawsuits pending in the Court at the very moment he made huge amounts available to support a justice's election," he wrote adding, "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 cases involving that litigant or his companies."

However, articles appearing at the time in the Charleston Gazette and the Charleston Daily Mail cited petitions filed by lawyers seeking Starcher's removal from the 1996 case because he allegedly cornered an attorney and expressed frustration that defense lawyers had not contributed enough money to his campaign.

"Judge Starcher also indicated it was his intention to review the list of persons who made contributions to his campaign," the petition filed by a Steptoe & Johnson attorney stated, according to articles in both the Daily Mail and Gazette.

Starcher stepped down from the case a few days later.