Published: April 24, 2008 10:40 pm         

Massey to face court; Starcher rejects recusal

CHARLESTON — Massey Energy Co. will face a West Virginia Supreme Court that includes a justice it wanted off the case when it appeals a $240 million judgment.

Justice Larry Starcher has refused the coal producer’s recusal bid as it prepares to challenge a 2007 verdict won by Wheeling-Pittsburgh Steel Corp.

A Brooke County jury found that Massey and Central West Virginia Energy Co. reneged on coal supply contracts with the steelmaker and Mountain State Carbon.

Massey cited Starcher’s public comments critical of the Richmond, Va.-based company and its chief executive, Don Blankenship. Court rules require justices to disqualify themselves to avoid even the appearance of impropriety, but give them the final say.

Starcher replied Thursday that he won’t withdraw while Justice Brent Benjamin remains on the case.

Benjamin has declined several recusal requests by Wheeling-Pitt focused on the estimated $3.5 million spent by Blankenship to aid his 2004 election upset of an incumbent justice.

Starcher noted that as acting chief justice, Benjamin would appoint his own replacement if he stepped aside. Benjamin did so in the recent ruling that reversed a $76 million judgment against Massey in a separate coal contract dispute.

Starcher had recused himself from that appeal, while unsuccessfully urging Benjamin to follow suit. Benjamin and the circuit judge sitting in Starcher’s place helped form the majority in that recent reversal.

“I will step aside following the very moment that the Acting Chief Justice in this case does so, should he make that decision,” Starcher wrote Thursday. “If he does not, I will give my best based on the law, secure in the knowledge that no litigant in the case has been my ’good friend’ or my great benefactor.”

The ’friend’ reference applies to Chief Justice Elliott “Spike” Maynard, who has disqualified himself from the Wheeling-Pitt case and several others involving Massey since now-infamous vacation photos surfaced showing him in Monaco with Blankenship.

Denying any wrongdoing, Maynard and Blankenship have since attributed the meet-up to a decades-long friendship. In his reply, Starcher challenged whether that was “common knowledge.”

“This is contrary to what I have been told over the years,” he wrote. “The truth - the truth - is that the ’good friends’ relationship between the two and the details of that relationship have never been disclosed in any of Massey’s considerable litigation.”

Maynard had previously rejected recusal requests that invoked his ties to Blankenship, which had occasionally been featured in media coverage. Starcher also questions why Maynard did not recuse himself before the Monaco photos were filed with the court and made national headlines.

Starcher added, “I had never seen those photographs before they were filed, and I had nothing to do with their disclosure.” He also apologized for calling Blankenship ’stupid’ and a ’clown’ — the sort of comments that fueled Massey’s recusal motion.

“He is obviously an intelligent person,” Thursday’s reply said. “Intelligent people, however, can do stupid and even clownish things - I should know.”

Earlier this month, Starcher scheduled and then canceled an unprecedented public hearing for Massey’s request. He posed written questions for the coal producer to answer in place of that hearing, but dropped the matter with Thursday’s reply.