This news story originally provided by The Charleston Daily Mail

November 1, 2005

Massey wants Starcher off case

Company says justice's remarks make fair trial impossible

George Hohmann
Daily Mail business editor

A Massey Energy affiliate wants West Virginia Supreme Court Justice Larry Starcher to remove himself from a case involving the coal company because Starcher called Massey Chief Executive Officer Don Blankenship "a clown" and said he was "stupid."

However, Starcher on Monday notified the clerk of the court that he would not disqualify himself from participating in the case.

In a petition filed Monday at the state Supreme Court, Massey's Marfork Coal Co. recounted that when Starcher spoke to the West Virginia Political Science Association's annual meeting Friday, he was asked questions about Blankenship and replied, "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."

Starcher's comments came after Blankenship told an audience at West Virginia State University earlier in the week that he has set his sights on getting Starcher out of office if Starcher decides to run for re-election in 2008.

Blankenship, who spent millions of dollars of his own money to help defeat former justice Warren McGraw, said money would be no object this time, either.

In its petition, Marfork Coal contends "the volatile and antagonistic comments made by Justice Starcher" create "at the very least, a serious appearance of partiality that disqualifies Justice Starcher from deciding any matter involving Massey or its subsidiaries."

The West Virginia Surface Mine Board in 2001 ruled that Marfork's Brushy Fork coal waste impoundment near Whitesville must close for nine days because of repeated pollution violations. Marfork has appealed that decision twice.

The first appeal was sent to the Raleigh County Circuit Court in October 2004. In March, Raleigh Circuit Judge H.L. Kirkpatrick upheld the suspension. Marfork is appealing Kirkpatrick's decision and the state Supreme Court was scheduled to hear it today.

This is the second time Marfork has asked that Starcher disqualify himself from the case. The company made its first request on June 21; on June 22, Starcher declined, pointing out that he did not like tobacco, but had handled tobacco cases fairly.

"Marfork respectfully submits that this comparison is not instructive," the company said Monday. "Justice Starcher has done more than express a dislike for coal; he has publicly announced his personal hostility toward a corporate officer identified with a party before the court.

"By boasting that he is ‘not afraid' of Don Blankenship, Justice Starcher invites the public to wonder whether he is ‘standing up' to Don Blankenship when he rules on cases involving Massey Energy," Marfork said. "Plainly, name-calling and chest-butting that would not even be permitted on a school playground have no place in the highest court in West Virginia."

"No reasonable person could read or listen to Justice Starcher's comments that Massey's chairman participation in the political process in West Virginia is ‘disgusting' and that he is ‘a clown' and ‘an outsider' ‘trying to buy influence like buying candy' and not conclude that Justice Starcher's strong negative opinion of Massey makes it impossible for him to consider this matter impartially," Marfork claimed.

The decision by a Supreme Court justice to recuse himself or herself from a case is up to each justice. If a justice declines to do so, there is no recourse.

Starcher did not immediately return a phone call this morning seeking comment.

Contact writer George Hohmann at 348-4836.