— -- 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 revealed 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 request 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 likely has 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 arranged to purchase 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 about the matter, then-Chief Justice Davis told ABC News in December she had no need to disclose the $1 million sale of a the aircraft, which she and her husband had used for personal travel.
“Why should I?” she told ABC News cameras.
At the time, Sample said it appeared like there was a “circus masquerading as a court” in West Virginia.
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 attorney opposing Fuller in the case, Mark A. Robinson, did just that, arguing that the business transaction and surrounding media attention created, in his view, the appearance of a conflict and required Justice Davis to step aside from the case.
In response, Davis has issued a 29-page opinion, saying that she was the victim of sensationalized press coverage by the national media – a reference to the ABC News report.
“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,” Davis wrote. “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.”
Furthermore, Davis wrote that the “Petitioners' bare bone statements that I have a personal relationship with Mr. Fuller is a clear example of an abuse of the motion to disqualify.”
Robinson’s law firm responded to Davis’s ruling, saying the recusal motion followed all of the rules of procedure, and was only filed because attorneys in the case were invited by Davis to do so.
“All statements and assertions in the motion were accurate and made in good faith,” said the statement from Robinson’s firm, Flaherty Sensabaugh Bonasso. “There were no misrepresentations. The firm strongly believes the actions of its lawyers were appropriate.”
ABC News shared copies of Davis’s opinion with several of the leading legal ethics experts around the country.
“When the Justice is this emotionally embroiled in this recusal question and outraged against what she views as ‘misleading,’ ‘judge-shopping tactics,’ how can she remain impartial to the petitioners?” said Keith Swisher of Arizona Summit Law School.
“It is already difficult for lawyers to file motions to disqualify judges,” Swisher said. “Judges are in positions of power over lawyers, and the lawyers may have to appear before them again. Understandably, then, lawyers rarely look forward to challenging a judge's impartiality. So when the judge not only denies the disqualification motion but also refers the lawyers for possible disciplinary prosecution, it deters lawyers from challenging a judge's lack of impartiality -- and the appearance of it.”
Charles Gardner Geyh, a professor of law at Indiana University, said he was “a little mystified by Justice Davis's elaborate opinion, which never seemed to address the relatively straightforward core issue.” Geyh said Davis would be expected to step aside from the case if the airplane purchase represented a substantial gift or favor to her husband.
“The answer depends on what those terms and circumstances were, what Justice Davis knew about the those terms and circumstances, and when,” he said. “As best I can tell, those core questions were unanswered in a lengthy opinion that dwelled on tangents.”
Nursing home attorney Robert Anspach is involved in a second nursing home case that is headed to West Virginia’s high court. He, too, has filed a request to Davis asking her to recuse herself. Anspach wrote in his filing that at this point, the public reaction generated by the revelation of the airplane deal offers the best argument for Davis to step aside.
“The public is currently questioning Justice Davis's ability to preside fairly in cases that involve Mr. Fuller,” he wrote. “There is more than a mere possible reasonable perception of impropriety. On the contrary, there are definite questions about actual impropriety.”
Davis has not yet responded to this latest request. In an interview Tuesday, Anspach said he did not expect to face disciplinary action simply for requesting the judge remove herself from the case.
“I do not feel intimidated by her referral of Mark Robinson to disciplinary review,” Anspach said. “It is my opinion there is a meritorious basis that requires disqualification in our case.”