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Another West Virginia Supreme Court Justice Declines to Step Aside in Another Natural Gas Case

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Newly appointed West Virginia Supreme Court Justice Evan Jenkins, a former congressman, has refused to step aside from a natural gas case. Photo: Bill Clark, CQ Roll Call

A lawyer who represented new Supreme Court Justice Evan Jenkins is on the legal team representing the natural gas giant Antero. The opposing side asked Jenkins to recuse himself, but he said no.

In another recusal controversy involving the West Virginia Supreme Court and the natural gas industry, a newly appointed justice declined to step aside from hearing a case on Tuesday, despite the fact that he was personally represented by a lawyer now representing a company involved in the proceeding.

Former U.S. Rep. Evan Jenkins hired Huntington lawyer Ancil Ramey, a former court clerk who often appears before the justices, to appear on his behalf last month when two lawyers tried to block Jenkins’ appointment to the court by arguing that he didn’t meet state constitutional requirements for the post.

Ramey won that case, and Jenkins was sworn in on Oct. 1.

Tuesday was the first day Jenkins was scheduled to hear oral arguments, and the second case on the docket was a major lawsuit filed by a group of Harrison County residents against Antero, West Virginia’s largest natural gas producer, alleging that the company is making life in their community unbearable.

Among the attorneys representing Antero: Ancil Ramey.

On Tuesday, Jenkins turned down a motion filed by the residents asking him to disqualify himself from the Antero case because of Ramey’s involvement in ensuring Jenkins got his seat on the Supreme Court.

In a one-page memo made public just before court was to begin for the day, Jenkins said he “had no prior relationship” with Ramey, “the representation was brief, and it has terminated.”

“Therefore, I find no reasonable grounds requiring my recusal,” Jenkins wrote.

The court has faced several recusal controversies in recent years.

Just weeks after taking office in 2017, Justice Beth Walker voted to rehear and then to overturn a previous ruling over how lease payments from gas producers to gas owners are calculated. Walker denied a motion to disqualify herself based on her husband’s stock holdings in energy industry companies. She said her husband had sold the shares before the case was argued.

Years earlier, then-Justice Brent Benjamin refused to recuse himself from hearing an appeal involving Massey Energy Co., even though its CEO at the time, Don Blankenship, had spent $3 million on a campaign against Benjamin’s opponent in the 2004 election. That case went all the way to the U.S. Supreme Court, which ruled in June 2009 that Benjamin should have stepped aside. Walker defeated Benjamin in the 2016 election.

The Jenkins controversy also comes as West Virginia’s Supreme Court faces a continuing crisis over spending — including allegedly using state cars for private trips and lavish office renovations that included a $32,000 couch — that has touched all five justices.

One justice, currently suspended, is on trial in federal court, contesting criminal charges that include fraud and obstruction; another justice resigned and then pleaded guilty to wire fraud; and a third retired after being impeached, but alleged the House GOP leadership was trying to take over another branch of government. A fourth was publicly reprimanded by the state Senate after an impeachment trial, but denied wrongdoing and avoided the more serious punishment of removal from office. The fifth faces an impeachment trial this fall, and has vowed to fight removal from office.

Jenkins was appointed to fill the seat of Robin Davis, the justice who retired after being impeached.

Attorneys for several Harrison County residents filed a motion last week urging Jenkins to not take part in the Antero matter.

“Justice Jenkins presiding over a case wherein his attorney is representing the respondents Antero raises reasonable questions about impartiality and has an appearance of impropriety which requires Justice Jenkins disqualify himself from this matter,” said the motion from Anthony Majestro, lawyer for the residents.

In a response filing on behalf of Antero, Ramey said that disqualification of Jenkins was not necessary, because Ramey’s representation of him had ended before Jenkins officially joined the court. The response also said that while Ramey helped write Antero’s briefs in the natural gas case, he was not the lead lawyer and would not be taking part in the oral arguments.

In the case, residents in the Cherry Camp area of Harrison County are appealing a lower court decision that threw out their lawsuit against Antero. The residents sued over a variety of natural gas production activities they argue create a nuisance, including unbearable traffic, “constant dust” that hangs in the air and settles on homes and vehicles, disruptive heavy equipment noise, and bright lights that shine into their homes day and night.

Antero attorneys say the company has only done what was reasonably necessary under its leases to extract gas, and that those operations don’t interfere with the residents’ use of their property. Antero lawyers said a panel of lower court judges was right when it threw out the case.

Hundreds of similar cases are pending in West Virginia courts, and the eventual ruling in the matter before the Supreme Court will likely set a precedent.

The issues raised in the cases are of growing concern in West Virginia, as the state’s natural gas industry continues to boom.

While Jenkins didn’t recuse himself, another new justice, Tim Armstead, did. It was not clear why Armstead recused himself from the Antero case, although, previously, Armstead, a former state House of Delegates speaker, worked as an attorney for a different natural gas company. Armstead was appointed to the court by Gov. Jim Justice at the same time as the governor appointed Jenkins.

No party filed a motion asking Armstead to disqualify himself, a court spokeswoman said. Armstead offered no explanation in a one-sentence memo to the court clerk.

His disqualification came just moments before the case was to be argued, so there was no time to find a replacement judge, a process that is allowed in West Virginia on a case-by-case basis. The residents asked that the argument be rescheduled for a later date, and the court agreed.

The seats held by Jenkins and Armstead are on the ballot in West Virginia’s general election next month. Both men are running.

This article was produced in partnership with the Charleston Gazette-Mail, which is a member of the ProPublica Local Reporting Network. It was originally published by ProPublica
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When W.Va. Delegate Compared LGBT to KKK, He Highlighted the History of Religious Right Prejudice

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Newly elected Del. Eric Porterfield was sworn in to the West Virginia House before the start of the 2019 session. Photo: Perry Bennett/West Virginia Legislative Photography

When West Virginia House of Delegates member Eric Porterfield, R-Mercer, called the LGBT community “the modern-day version of the Ku Klux Klan” in an interview with a Charleston Gazette-Mail reporter last week, it drew condemnation not just in the state, but nationwide. But Porterfield, in fact, joined a long legacy of right-wing evangelicals who have conflated legal protections for lesbians, gay men, bisexuals and transgender people with white supremacy and domestic terrorism.

The Southern Baptist Convention in 2012 resolved that “homosexual rights activists” had “misappropriated the rhetoric of the Civil Rights Movement” in advocating for marriage equality and other legal protections.

Bryan Fischer, former director of issues analysis for the American Family Association, has compared LGBT people to Nazis numerous times, arguing in a 2010 column that “homosexuality gave us Adolph [sic] Hitler.”

And Tony Perkins, president of the Christian conservative lobbying group the Family Research Council, argued in a 2018 column on the organization’s website that marriage equality was really “about obliterating every moral and cultural boundary humans have ever known.”

“The LGBTQ is suppressing the freedom of people that disagree with them and forcing their ideology,” Porterfield told Rachel Anderson, a reporter and weekend anchor with the Bluefield, West Virginia, TV station WVVA, in a separate interview.  

“If they do not get their way, they cause chaos, apply pressure, intimidate, internet stalk,” he added. “They’re the most evil-spreading and hate-filled group in this country.”

Porterfield’s comments came after a controversial rant in a legislative committee meeting, during which lawmakers were debating a bill to add protections to the state’s housing and employment nondiscrimination law for sexual orientation and gender identity.

His broader claim that “the LGBTQ” are harming America by lobbying for equal protections under the law is not new either. It’s right out of the right-wing evangelical playbook, according to Randall Balmer, an Episcopal priest and historian whose work studying the religious right has been recognized with numerous accolades, including an Emmy nomination for script-writing and hosting the PBS documentary based on his book, “Mine Eyes Have Seen the Glory.

Balmer said that right-wing evangelical leaders often rely on a “rhetoric of victimization” to make themselves seem persecuted in the face of changing social norms.

“That, by the way, is one of the reasons that they embrace Trump…he’s very good at this rhetoric of victimization,” Balmer said. “What this guy in West Virginia is saying is just a variant on this. ‘We’re the ones who are under siege, we’re the ones who have some sort of grievance that needs to be redressed.’”

But even given this context, Porterfield’s comparison of LGBT people with the KKK is a strange one, given the religious right’s origins. Although many believe abortion had a central role in pushing evangelical leaders toward politics, pro-life rhetoric did not become important in those circles until well past the 1970s.

In a Politico Magazine piece, Balmer traces the beginnings of the evangelical right’s political efforts to a court case in the late 1960s, when a group of Black parents in Holmes, Mississippi, filed a lawsuit against the U.S. Treasury Department in hopes of preventing segregated private K-12 schools from receiving full tax-exempt status. As the Internal Revenue Status targeted the tax exempt status of private, segregated primary and secondary schools, leaders like the late Jerry Falwell became involved in the fight. “In some states it’s easier to open a massage parlor than to open a Christian school,” Falwell is quoted as saying at the time in an article in The Nation exploring the preacher’s racist roots.

The racism exhibited by leaders of the evangelical right at the time was not limited to their efforts to preserve whites-only Christian academies. Tony Perkins, the aforementioned president of the Family Research Council, had no problem associating with the KKK when he served in Louisiana’s House of Representatives. He even spent time with David Duke, a former grand wizard for the white supremacist hate group.

“The religious right has its roots in racism, I’m sorry to say,” Balmer said. “So for this guy to kind of call on that trope is both ironic, but also fully compatible with the history of this movement.”

Heather Warren, a University of Virginia religion professor who studies American religious history, agreed with Balmer, adding that racism and Christianity were intertwined not just in evangelical movements, but in “hardcore KKK ideology.” Warren, who is also an Episcopal priest, said that in the 1950s and ‘60s, leaders in the religious right were fighting not to make America great again, but “to keep America Christian.”

“And Christian and white and democracy all went together,” she said. “They were all interchangeable. There was this way that it all added up to a white supremacy.”

So laws and ordinances banning discrimination based on sexual orientation and gender identity are a direct affront to democracy, Warren said, and an attack on democracy is synonymous with an attack on white Christianity and America, under this belief system.

“When Falwell was alive and writing, usually in his catalogue of phenomena and types of people who were eroding America and eroding American democracy, he’d often start off with homosexuals at the top of his list,” Warren said. “Feminists were close behind.”

It’s a convenient leap to make if you want to demonize the continued push for increased LGBT rights, which Porterfield seems to think are somehow wholly separate from the gay community. He clarified in his interview with Anderson that his original statement was an “anti-LGBTQ sentiment,” not an “anti-gay sentiment.”

Even before taking office, Porterfield made his positions on issues that directly impact the LGBT community clear. In a December interview, Porter condemned efforts to outlaw conversion therapy in West Virginia, a practice opposed by every major credible psychology or psychiatry organization. Porterfield called efforts to ban the practice “bigoted and discriminatory” and that the counseling practice should be protected as free speech.

Historically, conversion therapy methods have relied on tactics like castration, induced vomiting and electroshock therapy to “cure” LGBT people. While the unscientific and unethical therapeutic method has been banned or condemned in a number of states, including California and Washington State, New York is the only Appalachian state so far to outlaw it.

Porterfield’s comments, both before taking office and since, make it clear that he believes being criticized for bigotry is on par with a legacy of racist, sexist, homophobic and transphobic violence rooted in white supremacy and white Christianity. By making this comparison, he’s dismissing that Black and LGBT Americans have faced far worse than a few mean comments online.

The KKK was infamous for carrying out lynchings against Black Americans, a hate crime that often involves hanging but often also can include being burned alive or shot multiple times. The 1998 murder of Matthew Shepard’s, a gay college student from Wyoming who was beaten and left to die tied to a fencepost,is sometimes considered a lynching, and the history of lynching was painfully brought up for many Black LGBT Americans recently when Jussie Smollett, a Black gay actor, was assaulted by two men in Chicago who put a noose around his neck.

There’s hope, however, for Balmer in the form of younger white evangelicals who might not share Porterfield’s extreme beliefs.

“Not that his views are unique, and not that his vitriol is unique,” Balmer said. “But I think it’s changing, and much of it is generational.”

Balmer says young evangelicals are already showing they’re more concerned about issues like ending widespread hunger and poverty than whether someone is trans or attracted to a person of the same gender. Hopefully, he says, one day these young people will refuse to back other politicians like Porterfield and focus their efforts on finding solutions for struggling communities.

Tiffany Stevens (@tiffanymstevens) is an independent journalist living in Southwest Virginia. Their work focuses on the media, the LGBT community and Appalachia.

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West Virginia Lawmaker Faces Calls To Resign After Likening LGBTQ People To KKK, ‘Terrorist Group’

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West Virginia House of Delegates member Eric Porterfield during a recent floor session. Photo: Perry Bennett/West Virginia Legislative Photography

This story was originally published by the Huffington Post and is used here  with permission.

West Virginia lawmaker Eric Porterfield is facing calls to resign after a string of homophobic remarks, such as likening the LGBTQ community to the Ku Klux Klan and saying he would “see if [his kids] can swim” if they came out as gay.

Porterfield (R-Mercer), who is a born-again Baptist missionary and is blind, was elected to the state’s House of Delegates in November. He has continued to stand by his bigoted views, accusing the LGBTQ community of being a “terrorist group” that has “no care for diversity of thought.”

“The LGBTQ is a modern-day version of the Ku Klux Klan, without wearing hoods with their antics of hate,” Porterfield told a reporter with the Charleston Gazette-Mail on Friday. 

West Virginia House of Delegates member Eric Porterfield during a recent floor session. Photo: Perry Bennett/West Virginia Legislative Photography

He reportedly used the slur “faggot” in a committee meeting on Wednesday amid discussions over a proposed amendment that would restrict anti-discrimination protections for LGBTQ people. That amendment failed to pass, the Gazette-Mail reported.

Porterfield, responding to backlash against his comments on Saturday, repeated his views to Bluefield station WVVA, adding that if his young son or daughter came out to him as gay, he would “see if she can swim … then I’d see if he can swim.”

The West Virginia Democratic Party on Friday called for Porterfield’s resignation.

“West Virginia has no room for someone who expresses such hate. Let alone room for him to hold a public office where he is supposed to represent the people of West Virginia,” WVDP Chairwoman Belinda Biafore said in a statement.

“His hate-filled remarks and actions speak volumes and so does the Republican Party’s silence. The Republican majority’s leadership needs to condemn these actions. Their silence is complicit and the people of West Virginia deserve better,” she added.

Among the Republicans publicly condemning Porterfield’s words was Mercer County Commissioner Greg Puckett, who characterized the homophobic comments as contrary to what the Bible teaches.

“As a Commissioner within Mercer County, I do not condone, nor accept this behavior of anyone, let alone an elected official. Likewise, this form of antics in representation of my county is not inclusive to the people within,” Puckett said in a Facebook post.

Delegate John Shott (R-Mercer) also distanced himself from Porterfield’s views, calling them “much too extreme.” 

“I don’t accept his categorization of that group nor do I think it’s productive to call anyone names when you are trying to advance the goals of the party. It’s not a productive approach to solving problems,” he told the Bluefield Daily Telegraph. He added that Porterfield should learn to be “[discreet] with his words.”

Porterfield did not immediately respond to a request for comment on Monday.

This story was originally published by the Huffington Post and is used here  with permission.



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Fact-check: Has Unemployment in W.Va. Fallen Under GOP Governor?

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West Virginia Gov. Jim Justice holds a service dog onstage after announcing Monday, Jan. 7, 2019, in White Sulphur Springs, W.Va., that he will seek re-election in 2020. Photo: John Raby, AP Photo.

Unemployment has fallen across the country in recent years. But the West Virginia Democratic Party said in a recent tweet that it hasn’t fallen on Republican Gov. Jim Justice’s watch.

In a Jan. 9 tweet, the state party wrote, “FACT: Unemployment rate has not decreased since @WVGovernor took office. #wvpol #WVSOTS19″

Is that correct? We decided to check it out. (We reached out to a party representative but did not receive a response.)

Justice, elected as a Democrat in 2016, took office on Jan. 16, 2017. That month, the unemployment rate in West Virginia was 5.3 percent.

Justice became a Republican on Aug. 3, 2017. That month, the state unemployment rate stood at 5.2 percent.

And today? In the most recent month available, December 2018, the unemployment rate in West Virginia was 5.1 percent.

Is that a dramatic drop? No. But unlike what the tweet says, it is a decline.

It’s worth noting a limitation in the data, said Brian Lego, a research assistant professor at West Virginia University. Because West Virginia’s population is small, he said, the margin of error for the survey used to track the unemployment rate is big enough to produce uncertainty about small changes in the data, like those seen during Justice’s tenure.

“The change is statistically insignificant,” Lego said.

He added that regular revisions by the Bureau of Labor Statistics, which collects the data, could produce small changes that affect the comparison.Our ruling

The West Virginia Democratic Party tweeted, “FACT: Unemployment rate has not decreased since @WVGovernor took office.”

The state unemployment rate did, in fact, decline from 5.3 percent to 5.1 percent on Justice’s watch. That said, it was an exceedingly narrow decline — in fact, economists say that the margin of error for the survey in question leaves in doubt how big the decline was.

We rate the statement Mostly False.

This article was originally published by PolitiFact.

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