This was an unusual story that you don’t usually see. Question – Is there improper influence in America’s Courts? Isn’t justice supposed to be blind? ABC News recently reported that a West Virginia Supreme Court Justice is seeking to punish an attorney who asked that she be disqualified from a pending case because of what the lawyer argued was a conflict of interest between the judge and opposing counsel. The lawyer’s attempt to have West Virginia Supreme Court Justice Robin Davis remove herself from hearing a nursing home case came in January after an ABC News Investigation unveiled how a Mississippi attorney with a case headed to the state’s high court had privately purchased a $1 million airplane from Davis’s husband. The ABC News story also reported that Fuller and other attorneys at the firm had been responsible for raising more than $35,000 for Davis’ 2012 successful re-election campaign.
The request for recusal came in one of two new nursing home cases headed to West Virginia’s high court, and opposing attorneys in both instances have requested Davis step aside. But in her first response to a recusal motion, Davis turned on one of the attorneys, accusing him of leveling a “false and misleading assertion” against her. She referred the matter to the Office of Disciplinary Counsel for investigation, a move that took legal ethics experts by surprise. “I just find it astonishing,” said James Sample, a judicial ethics expert at Hofstra University who has written extensively on the West Virginia court. “To threaten the attorney, and implicitly to threaten attorneys generally who might question her on recusal grounds is really an abuse of the position.”
As one of the state’s top judges, Davis will likely have the final word on recusal questions, even when the question involves her directly. Questions regarding Davis’s conduct first surfaced in December, when ABC News reported on the outcome of a multi-million dollar lawsuit brought against one of the nation’s largest nursing home companies, Manor Care, after the death of a woman who had been in the company’s care at a home in Charleston, West Virginia. Michael J. Fuller, the attorney for the victim, had secured a $90 million jury verdict in the case. As the matter was about to head to the state’s highest court on appeal, Fuller purchased a Lear Jet from Davis’s husband. Neither Fuller nor Davis disclosed the transaction. Davis wound up writing the four to one majority opinion upholding a $40 million payout to Fuller’s client, about $17 million of which went to Fuller. When approached for comment, then-Chief Justice Davis told ABC News in December she had no need to disclose the $1 million sale of a the aircraft.
In January, as Fuller prepared to come back before the court on another nursing home case, Davis volunteered that in fact there had been a $1 million airplane transaction between her husband and Fuller, but said she had no involvement in it. She invited the attorneys to “file any objections they had to my participation based upon this disclosure.” The opposing attorney who had been involved in the other major nursing home verdict the past year, filed a motion saying West Virginia Supreme Court Justice Robin Jean Davis should recuse herself from hearing a petition in a similar case.
In a 29-page statement explaining why she would not recuse, Justice Davis said, “There are those who may argue that, even if the motion has no legal merit, I should step aside from the case in order to spare this Court and our great State from being assaulted by the outrageous fabrications that the national media will continue to heap upon our oft-maligned State. This I cannot do. Courts are governed by law, not by media hype, and if I were to step aside in order to protect this Court from vicious and mean-spirited yellow journalism, I would in all likelihood encourage such tactics in the future by those who seek to use the media in order to manipulate the courts.”
I would think the rampant speculation and even the innuendo that she could be partial would urge Mrs. Davis to recuse herself from the cases. As one of the attorneys noted, ” I accept her subjective belief that she is not bias. But her subjective belief is not what governs. What governs is if a justice’s impartiality might be questioned. And all of this, I think, would lead many reasonable people to question if she can hold the balance nice clear and true in this matter.”