AAAA ACT ABC Cover Letter

“Pleadings”

Campaign in Opposition to Reelection of Justice Elliott
“Spike” Maynard to West Virginia Supreme Court

“Recall Spike”


Members of the State Bar:

Lawyers statewide have an affirmative duty under the Rules of Professional Conduct to clean up their profession.

Recently, West Virginia has made national headlines over the Rich Rodriguez fiasco, the Heather Bresch scandal and the Maynard/Blankenship debacle in Monaco on the French Riviera.

The embarrassment over these public affairs is directly attributable to members of the State Bar abusing the public trust for professional gain.

The ABC NIGHTLINE segment linked here vividly displays the national perception of public corruption sweeping our state. http://www.youtube.com/watch?v=zcJkbAxd27k&feature=related

Likewise, the ACT Foundation TV spot depicts an almost farcical display of judicial arrogance unknown to our jurisprudence. http://www.youtube.com/watch?v=XfJLXjfnN2k.

Justice Maynard only recognized his outrageous conflict of interest after he was caught red-handed, and red-faced, in his entangled personal relationship with Don Blankenship, the CEO of Massey Coal, on vacation together on the French Riviera.

Who does not know of the New York Times and Wall Street Journal articles lambasting West Virginia for the sad—indeed tragic-- state of its judicial affairs.

You may all think it’s “silly” and “politics”, but Justice Maynard’s gallivanting around Monaco with a litigant appearing before him in court directly reflects on the entire membership of the State Bar.

You all know it “stinks to high heavens”.

Do something positive for your profession by recalling Spike Maynard. He no longer deserves to hold the seat of Justice of the Supreme Court of Appeals of West Virginia.






“Pleadings” is an online newsletter published by the Headwater Recreational Trust, Inc., and its sole owner, Michael C. Farber, as part of its “Campaign in Opposition to the Reelection of Elliott Maynard to the Supreme Court of Appeals of West Virginia.” The Campaign is funded as an “independent expenditure” without authorization or coordination with any candidate or political action committee in the 2008 Primary Election.

West Virginia Supreme Court of Appeals

http://www.state.wv.us/wvsca/press/caperton.pdf

Pleadings: Celebrating the Staying Power of Progressive Reform

Campaign in Opposition To

Reelection of Justice Elliott Maynard

“Politics is not the art of the possible. It consists in choosing between the disastrous and the unpalatable.”

John Kenneth Galbraith

“We will appoint as justices, constables, sheriffs, and other officials, only men that know the law of the realm and are minded to keep it well.”

Magna Carta

Introduction

“Pleadings” is published as an online newsletter and blog site for purposes of informing members of the West Virginia State Bar of recent events in the 2008 primary race for two open seats on the State Supreme Court of Appeals.

This project is supported by a personal “independent expenditure” of the Headwater Recreational Trust, and its sole owner, Michael C. Farber, without authorization, coordination or financial support from any other person, candidate or political action committee.

“Confronting Judicial Corruption” is a private campaign initiative to invigorate public discussion of the judicial canon embodied in our ethical code involving the “fair administration of justice.”

As inscribed for all ages in the Magna Carta, this ancient declaration of civil rights recognizes that “law without fairness is not justice at all”:

“To no one will we sell, to no one deny or delay right of justice.”

The very letter and spirit of our modern concept of the “fair administration of justice” has been crudely despoiled by the recent public display of Justice Elliott “Spike” Maynard vacationing with his old friend, Massey Coal executive, Don Blankenship, on the French Riviera during the summer of 2006.

This “vacation trip” has exploded into a national debate over judicial ethics which has untold moral and ethical implications for the justice system of West Virginia.

As members of the State Bar, you were granted the privilege to practice law in our domain under the auspices of the State Supreme Court.

With this privilege came an affirmative obligation to ensure that the administration of justice –this ancient cornerstone of western culture—would be maintained and protected -- indeed enhanced—enabling it to succeed from one generation to the next without taint, favor or fear.

Justice Maynard has made a personal decision to remain a candidate for reelection to the Supreme Court despite the embarrassing state of judicial affairs incited by his own controversial conduct, threatening public comments and judicial misdeeds.

But for his continued participation in this election campaign, the publication of these “Pleadings” would be unnecessary and unwarranted. The other three candidates running for the Democratic nomination to the Supreme Court are eminently qualified for the office.

In this instance, however, Justice Maynard has forced the matter to the forefront of public debate by his own insistence in seeking to hold onto office at all costs. He has given progressive men and women among us little choice but to offer a rebuttal.

As someone once said, “All that’s necessary for evil to triumph is for good men to remain silent.”

Standing

My father was born in the town of Pierce outside Thomas in Tucker County. His family had moved there from Baltimore in 1917. My grandfather served as the camp doctor for Davis Coke & Coal. Their home still stands prominently on the hill above the town.

I practiced law in West Virginia for 22 years. In early 2005 I closed my office. I no longer maintain active membership in the State Bar or reside in the state.

As Mark Twain once commented, “he wouldn’t want to belong to any club that would have him for a member.”

Statement of Case

West Virginia is again at a major crossroad in the development of its jurisprudence.

In 1974, the passage of the Judicial Reform Amendment presented a dramatic opportunity for change in West Virginia. It ignited public interest in the concept of “fair administration of justice.”

This constitutional amendment completely revamped the structure of our judiciary, and immensely revitalized our jurisprudence.

It was a harbinger of events to come.

Among the strongest arguments supporting its passage was the recognition that the entire legal profession would have the ethical obligation as “officers of the court” to make this concerted effort at judicial reform work statewide.

In 1976, the election of Justices Thomas Miller, Sam Harshbarger and Darrell V. McGraw, Jr. to the Supreme Court launched a new era of social and judicial reform that swept across our state.

For the first time in modern West Virginia history, a coalition of progressive interest groups had successfully waged an election campaign that focused on the obvious need to reform the entire body of state law.

One major objective was to ensure that the “fair administration of justice” would be enshrined as a vitally important judicial tenet during the implementation of the Amendment.

It was a daunting task.

The development of the common law from the Magna Carta through to the early precedents expounded under Virginia law, had left West Virginia, as a new “free” state, upon a treacherous course of negotiating its future with the old vested interests of the landed gentry—the coal, timber and oil and gas “barons” of that day.

These “negotiations” sparked the early labor union movement that played a decisive role in the evolution of West Virginia law.

After 1976, the newly elected members of the Supreme Court issued repeated calls to the membership of the State Bar to help make the new judicial system work for the benefit of all citizens.

The aftermath was without precedent in the legal and judicial history of our state other than to paraphrase, as JFK once wryly commented to a group of Nobel Laureates, when Thomas Jefferson thought about the “administration of justice” when he dined alone.

We all witnessed the bold strokes and lightning flashes of new justices challenged by their positions and the honor and integrity of their office.

We watched the creative genius and antics of Richard Neely and Darrell McGraw, and we all laughed and groaned together as those two “birds” pushed the bounds of our jurisprudence to limits sometimes far beyond any recognized common ground.

Luckily, we all knew we had the steady hand of Thomas Miller propounding legal arguments in support of his brethren. And who did not observed the sharp wit and style-- and the calming influence-- of Sam Harshbarger at work and play.

It was indeed an astounding time of judicial and social reform that truly tried men’s souls.

And what a spectacle it was for the legal profession to watch the body of our state law dramatically change its “colors” within just one generation of lawyers.

As “officers of the court”, we were truly a blessed bunch.

Argument

Now jump forward 30 years to the summer of 2006. It’s early July. Justice Maynard is buying an expensive dinner for Don Blankenship on the French Riviera. This festive occasion probably cost several hundred dollars considering the exchange rates, setting and number in the party.

Mr. Blankenship is the top corporate executive of Massey Coal. They are admittedly old friends. Massey happens to have major litigation on appeal before the Supreme Court involving a $60 million judgment held by Harman Coal and a member of the Caperton family.

We’re talking about serious business interests at stake here.

Upon his return from Monaco, Justice Maynard does not disclose his vacation meetings—get togethers if you were-- with Blankenship to any interested parties in Harman Coal litigation. Apparently, Justice Maynard also does not report the payment he admittedly made for Blankenship’s dinner as required by the Canons of Judicial Ethics.

As a result, litigants appearing before Justice Maynard in court had absolutely no judicial notice of this deviant judicial conduct or abject conflict of interest.

It was all kept highly secret and hidden behind Justice Maynard’s chamber’s door.

It is regrettable that we are now confronted with this atrocious situation today –not one in which a member of the Supreme Court is running for reelection with a sense of vested pride held in a judicial office well kept--but a debacle of sometimes comic—but sadly-- tragic proportions for our state.

Standing alone on the above stated factual allegations, the legal profession has indeed been smeared by the tainted notions of a Supreme Court Justice who apparently has no clue whatsoever about the “fair administration of justice.”

It has been reported in the press that Justice Maynard has been threatening to sue anyone after the election that has spread rumors and false accusations about his shenanigans in Monaco during the summer of 2006.

Let’s be blunt here:

This business of twisting judicial ethics all out of shape to achieve some nefarious purpose may be “fun and games” for Justice Maynard and his old buddy, Don Blankenship, but it’s embarrassing as hell for the citizens of West Virginia.

Cavorting around the French Riviera with a girlfriend, posing for photographs with the head of a coal conglomerate with tall drinks in hand, picking up the tab for a big dinner with a person who also happens to be a litigant before him in court, and later failing to disclose that occasion or expense to other parties in that proceeding—when all taken together as a whole—simply does not comport with any code of judicial ethics “known to man.”

Bent as some judicial reform advocates are in plowing straight and lawful rows across the fields of justice, may it be advanced here without fear of retaliation to family and friends that we should be recognizing the vitality of an ancient civil right as it stands now—one that is soundly embedded in the core of the Magna Carta -- not Justice Maynard’s private right to run around the Riviera with his cohorts.

The disingenuousness in positions being presented in Justice Maynard’s defense should be recognized as the dire threats they are framed to be—attempts to chill the rights of citizens to comment fairly about his summer vacation of 2006.

Public comments of such an aggressive nature made openly to the press by a sitting member of our Supreme Court constitute inappropriate unethical conduct in and of itself.

Threatening to sue voters who are exercising their rights of free speech is a dastardly thing to do-- it reveals Justice Maynard’s true colors and the actual “battle flag” he continues to fly under within our jurisprudence.

As fair-minded members of the State Bar, two questions must be ultimately asked: How do you spell judicial corruption? And if this isn’t a classic case of it, what is?

This critical point of view is held by an overwhelming consensus of those who have read the New York Times and Wall Street Journal articles, viewed the “charming” photographs of Justice Maynard and Don Blankenship toasting each other on vacation, read John Grisham’s new book recognizably based on the 2004 Judicial Election in West Virginia, and gawked wide-eyed at Blankenship’s fisticuffs on ABC Evening News and Nightline.

Citizens of West Virginia are all being held captive to the daily “drip-drip-drip” of the state’s judicial reputation being sucked down the drain of public corruption.

For those of us who dedicated our professional careers to bringing the 1974 Judicial Reform Amendment to life as a basic foundation stone of our jurisprudence, it is a stunning breach of good faith to witness these blows being inflicted upon the body politic.

This is not merely a case of an “appearance of impropriety”, but a frontal attack by the new “coal barons” upon the “fair administration of justice” in our realm.

West Virginia has now become the “laughingstock” of the nation because Justice Maynard is blinded by self-pride and his obtrusive, overbearing sense of playing southern “hardball” politics to the hilt.

If he had any personal or professional respect left for judicial ethics after his disheartening display of public misconduct in this instance, he would voluntarily withdraw from the election, leave the bench at the end of his term and slip into history as a footnote disgraced by this gross episode of bloated self interest.

The problem here is that the national perception of judicial corruption has grown so egregiously it now reflects upon all members of the State Bar.

From afar, your membership seems to be sitting passively by as a group, silenced and sliced apart into separate groupings divided among yourselves, stymied by inaction and threat of lawsuits, and tormented by fear for clients and your professional careers.

Is this the way the 1974 Amendment was supposed to work?

It was the Judicial Reform Amendment—not a Canon of Judicial Intimidation and Fear.

Is it any wonder then that citizens feel chilled in their free speech when those who are supposed to advocate on their behalf seem unwilling to utter a single critical comment on this odorous situation?

Remember the Magna Carta!

“We will appoint as justices…only men that know the law of the realm and are minded to keep it well.”

Justice Larry V. Starcher has written a brilliant summation of his reasoning for standing up to Mr. Blankenship and Massey Coal in the Caperton case involving Harman Coal. His public response and notice of disqualification was filed in court on February 15^th, 2008.

It should be required reading for every single member of the State Bar. It is attached here as a “profile in courage” of immense importance to the judicial history of West Virginia.

http://www.state.wv.us/wvsca/press/caperton.pdf

By the way, where is Ned Chilton when we need him?