CHARLESTON — The uproar over conflicts of interest at the West Virginia Supreme Court calls into question the practice of giving judges the final say in their recusals — even when they’re faced with demands to step down.
“There’s a lot not to like in leaving it up to the conscience of the individual judge,” said Deborah Rhode, director of the Center for Ethics at Stanford University’s law school. “(But) that’s pretty much the expected method for dealing with these situations.”
Last week the state’s highest court agreed to reconsider November’s 3-2 ruling that overturned a $76.3 million judgment against Massey Energy Co. The judgment stemmed from a 2002 Boone County coal contract case won by Harman Mining Co. and its president, Hugh Caperton.
Chief Justice Elliott “Spike” Maynard disqualified himself from last week’s 5-0 decision after Harman and Caperton cited his friendship with Don Blankenship, Massey’s president, chairman and chief executive.
But Harman and Caperton now want the joint recusals of Justices Larry Starcher and Brent Benjamin.
They cite Starcher’s admittedly intemperate remarks targeting Massey and Blankenship, and Blankenship’s multimillion dollar effort to help Benjamin get elected to the court in 2004.
Any formal recusal request filed before the March 12 rehearing will follow the same process that led Maynard to step aside, and Benjamin twice to reject entreaties from Harman and Caperton.
That process calls on justices to disqualify themselves from any proceeding in which their “impartiality might reasonably be questioned.” The state’s Code of Judicial Conduct says such instances include when justices have “a personal bias or prejudice concerning a party or a party’s lawyer,” have family involved in the case or know that they or their immediate family members have an economic interest.
That the state’s procedure leaves the decision up to the justice under fire is not uncommon, and closely tracks that of the federal bench, scholars say.
“It is the individual justice’s decision,” said Caprice Roberts, a professor at West Virginia University’s law school. “There’s an incredible amount of discretion.”
Roberts and other legal analysts recalled the 2004 episode in which U.S. Supreme Court Justice Antonin Scalia went duck hunting with Vice President Dick Cheney, as the court was considering Cheney’s appeal in a records secrecy case. Scalia refused to step down from hearing the case.
West Virginia’s process has several features lacking on the federal level, Roberts noted. The state’s justices must file their recusal responses in writing, for instance, and the court can appoint a replacement if a justice agrees to withdraw.
Had Maynard refused, or if Starcher and Benjamin rebuff any renewed motions, peer pressure may be the only remaining option, legal experts say.
“You could ask the rest of the court, and perhaps hope that internal pressures might come to bear,” Robert said. “Or, perhaps they could change their policy if they felt strongly enough about it.”
The parties could also sue. Just one month after Maynard met up with Blankenship in Monaco, Massey Energy asked a federal judge to void West Virginia’s recusal process. The company’s pending lawsuit argues the process “fails to provide a fair hearing before an impartial tribunal.”
Massey sued over Starcher’s refusal to recuse himself from a different case. U.S. District Judge John T. Copenhaver Jr. has denied a request to dismiss the lawsuit, and an attempt by the Supreme Court to appeal that decision.
With the Legislature in session, lawmakers have adopted a wait-and-see attitude toward the current situation. At least twice before, though, legislators considered giving the rest of the Supreme Court the final say whenever one of its justices rejected recusal.
Then-Gov. Gaston Caperton vetoed a 1996 bill embracing that change to the recusal process. Caperton concluded that the judicial branch should establish its own rules. A similar measure passed the Senate in 1999, but died in the House.
Senate Majority Leader Truman Chafin, D-Mingo, spearheaded both attempts. He said they were prompted by then-Justice Margaret Workman’s refusal to step down from his child custody appeal. He had argued that the justice’s friend and longtime secretary was close to his ex-wife.
Chafin has not yet revived the measure this session. He instead recently hosted a fundraiser for Maynard, a fellow Democrat and Mingo Countian who filed for re-election last week.
The recusal bid targeting Maynard generated national attention with the release of photos showing him with Blankenship in Monaco in July 2006. By then, Massey had announced its plans to appeal the Boone County verdict. Just one month before, Massey had sued the trial stenographer for failing to produce the necessary transcript. The justices had also ruled on several matters stemming from the planned appeal, mostly to give Massey more time to file it.
“It shows incredibly bad judgment,” said Thomas Morawetz, the Tapping Reeve Professor of Law and Ethics at the University of Connecticut Law School. “It takes a pretty extreme degree of obtuseness not to realize there would be suspicions raised.”
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