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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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Kentucky Aluminum Plant Investor Is Russian Company Formerly Under US Sanctions

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Craig Bouchard speaks at a Braidy Industries launch event as KY Gov. Matt Bevin (right) looks on.

This article was originally published by the Ohio Valley ReSource.

Russian aluminum company Rusal announced Monday it plans to invest in a new Kentucky aluminum mill to be built near Ashland in eastern Kentucky. The $200 million investment in Braidy Industries is Rusal’s first U.S. project since the Trump administration lifted U.S. sanctions placed against the company.

Rusal had been sanctioned by the U.S. government because its major controller, Russian oligarch Oleg Deripaska, who has close ties to Russian President Vladimir Putin, faces accusations of “a range of malign activity around the globe” by Russia, according to the U.S. Treasury Department. Those actions include interference in the 2016 U.S. presidential election and meddling in neighboring Ukraine.

Deripaska also has close business ties to former Trump campaign chair Paul Manafort, who has been convicted of tax evasion and money laundering. Deripaska is suing the U.S. to have sanctions against him removed.

The Trump administration released Rusal from sanctions in January after the company reduced the ownership stake held by Deripaska. Congressional Democrats attempted to block the White House decision and passed legislation in the House that would keep sanctions in place. However, the bill fell short in the Republican-controlled Senate, where Majority Leader Mitch McConnell of Kentucky accused Democrats of trying to “politicize” the sanctions.

Braidy Bunch

According to a press release, RUSAL will earn a 40 percent share in the factory’s profits, and Braidy will keep the remaining 60 percent. The plant has also received $15 million in direct investment from the state of Kentucky. Gov. Matt Bevin cut a deal to attract Braidy to the state with that public money and additional tax incentives totaling more than $10 million.

As part of his reelection bid, Bevin has pointed to the Braidy development as evidence of job creation in an economically struggling part of the state.

“This is a seed that has been in the ground, the germination so often seems invisible to people,” Bevin said at an event over the weekend in Martin County, Kentucky. “But good things have been happening.”

The project is expected to cost more than $1 billion and employ over 500 people.

The Ashland project will produce rolled aluminum for the American auto and aircraft markets, and is the type of project President Donald Trump hoped to support with his tariffs on aluminum imports.

Braidy Industries CEO Craig T. Bouchard discussed the partnership at the New York Stock Exchange Monday morning.

“We’re really lucky and honored to have them as our partner in Kentucky,” Bouchard said of Rusal, adding that his company had chosen to partner with Rusal for its record of environmentalism.

We are going to lead the world in highest quality, lowest cost, and the least use of carbon from start to finish in the manufacturing process, and we’re changing the world,” he said.

The Ashland aluminum mill would be the first such plant to be built in the U.S. in 37 years, according to industry sources. Final agreements among the partners are expected to be signed later this year.

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Kentucky’s Secretary of State Turns Up Heat in Fight With Elections Board

Kentucky Secretary of State Alison Lundergan Grimes Photo: Win McNamee/Getty Images

Alison Lundergan Grimes removed the State Board of Elections’ executive director, a longtime critic of her actions, from a national committee on improving the country’s voting systems.

Kentucky Secretary of State Alison Lundergan Grimes escalated her fight with the State Board of Elections last week when she removed its executive director from a national committee devoted to improving the country’s voting systems and better protecting them from cyberattacks.

Grimes took the action against the executive director, Jared Dearing, just days before he was expected to travel to Memphis, Tennessee, to participate in a meeting dealing with upgrading the voting machines and technology used by states across the country. The meeting is being held by the federal Election Assistance Commission’s Standards Board, and is widely considered to be the most significant meeting of the EAC in years.

Dearing has been a longtime critic of actions taken by Grimes, by law the state’s top elections official, and last year he filed a nine-page complaint with the Executive Branch Ethics Commission accusing Grimes of creating a hostile work environment and overstepping her authority. Dearing’s complaint helped prompt a number of investigations into Grimes’ performance and played a role in the state legislature’s decision last month to strip Grimes of some of her authority over state elections.

Grimes has steadfastly denied the claims against her, calling them politically motivated. Grimes is a Democrat, as is Dearing. In a statement, Grimes’ spokeswoman, Lillie Ruschell, said appointments to the Standards Board remain at the secretary’s discretion, and she made new appointments using “the same routine practice as previous appointments over the past eight years.”

Ruschell said the decision to remove Dearing was based on his “absence from the 2018 EAC meeting.” In a statement, Dearing said he skipped last year’s meeting at the direction of Grimes.

“I was unable to attend the 2018 meeting because the secretary did not give me approval to travel, and at that time the secretary approved all travel requests,” he said. “The Standards Board meetings are an important function of securing the commonwealth’s election systems. The State Board of Elections will continue to do everything in our power to secure our systems whether or not we are in attendance.”

This will be the first time in the history of the EAC’s Standards Board that Kentucky will not be represented by an SBE director. Trey Grayson, a former secretary of state in Kentucky, said “It’s puzzling to see this deviation from Kentucky’s long-standing practice of appointing a staff member from the SBE to this board. And the timing of Dearing’s removal, given his outspoken criticism of her, is curious.”

Dearing was widely expected to be an active participant in the Memphis meeting, and he had been consulting with elections officials across the state and country in preparation. He is being replaced by Assistant Secretary of State Erica Galyon, who has been largely absent from national conversations on voting machines.

Grimes also removed Madison County Clerk Kenny Barger from the Standards Board and appointed Johnny Collier, the clerk from Jessamine County. Barger has also been an outspoken critic of Grimes. Ruschell said Barger was removed because of his lack of “communication” about the meeting. He did not respond to a request for comment.

Collier also did not respond to a request for comment, but his office indicated he would not attend the meeting in Memphis family issues. This has left Grimes’ office scrambling to find another elections official only one day before the meeting begins.

Neither Barger nor Dearing’s term on the Standards Board officially ends until the end of the month, making it unclear to Kentucky’s elections officials why Grimes chose to make appointments only days ahead of a crucial meeting.

“This meeting is huge,” said Gabrielle Summe, the clerk in Kenton County, who is also the president of Kentucky’s statewide clerks association. “It decides the machines Kentucky will be able to buy.”

Summe said Grimes’ replacement of Barger may have been improper. She said national regulations required that “local election officials” select one of their own for the Standards Board. Summe said the Kentucky County Clerks Association was neither told that Grimes intended to dismiss Barger nor consulted about his replacement. The association is taking steps to prevent Barger’s removal. said the KCCA had never before complained about the appointment process.

“There’s no vacancy,” Summe said. “There’s no reason to replace him and he’s got at least a little more experience with the process.”

According to federal and state officials, last September Dearing was in the process of being approved for a security clearance when Grimes abruptly asked the Department of Homeland Security to halt the process. The move came only weeks after Dearing first issued his public grievances with Grimes.

In her statement, Ruschell did not explain why Grimes halted the process but said security clearances were at the secretary’s discretion.

In pushing back against the legislation that reduced her powers over state election matters this year, Grimes had argued that she alone had the security clearance necessary to respond to real or potential threats to election security in the state. In doing so, she failed to mention she had played a role in making sure members of the SBE lacked such clearances.

“At a time when election security is a top concern for our nation, our Republican majority wants to remove the only member of the State Board of Elections with a National Security Clearance from having a voice in protecting Kentucky, placing the process solely in the hands of unelected bureaucrats appointed by the Governor,” Grimes said in a statement last month.

After the 2016 election, DHS allowed the “chief elections official” in each state to apply for a security clearance and to sponsor the applications of two appointees in order to streamline communication between the federal government and the states.

The clearance allows DHS to quickly communicate threats to Kentucky’s elections infrastructure. Without the clearance, Dearing would likely not be among the first to know about imminent risks. The SBE is largely responsible for the day to day management of elections.

Officials indicated the SBE has expressed its intention to ask for additional clearances to be given to its members now that legislation has given the board clearer authority. It is likely this process will move forward.

EAC spokeswoman Brenda Soder said the general counsel is reviewing Grimes’ new appointments to the Standards Board “to determine the right course of action for all involved” and that a decision on how to move forward will be guided by relevant federal law.

“This will have a huge impact on the way our state is run,” Summe said. “We need to keep the people there who should be there.”

Update, April 11, 2019: The Election Assistance Commission rejected Kentucky Secretary of State Alison Lundergan Grimes’ attempt to replace one of Kentucky’s representatives on the commission’s Standards Board. The commission said Grimes lacked the authority to replace Kenny Barger, the local elections representative serving on the Standards Board. Grimes had tried to replace Barger in the days leading up to a major conference on voting machine reform.

This article was originally published by ProPublica.

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Kentucky Legislature Passes Bill Stripping Grimes of Authority Over State Board of Elections

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Kentucky Secretary of State Alison Lundergan Grimes. Photo: Alex Slitz/Lexington Herald-Leader/TNS via Getty Images

The bill takes multiple steps to scale back the level of control Secretary of State Alison Lundergan Grimes has asserted over the board in recent years.

The Kentucky legislature passed a bill on Thursday that strips Secretary of State Alison Lundergan Grimes of her authority over the State Board of Elections, restructures the SBE and makes misusing the voter registration system a misdemeanor crime.

The bill takes multiple steps to scale back the level of control Grimes has asserted over the SBE in recent years, including removing the secretary of state as the chair of the board. The secretary will become a nonvoting member of the board, and the board will now include two former county clerks — one from each party.

The bill now awaits the signature of Republican Gov. Matt Bevin.

ProPublica and the Lexington Herald-Leader published stories this year detailing the secretary of state’s office’s use of the voter registration systemto look up information on political rivals, as well as the range of misconduct allegations against Grimes being explored by state investigators.

Records released last week confirmedthat staff in her office had looked up those named in the reports by ProPublica and the Herald-Leader, including members of a state ethics agency currently investigating Grimes’ conduct.

Last October, the attorney general’s office appointed a special counsel to investigate ethics complaints made against Grimes, involving both a no-bid contract given to a campaign donor as well as an allegation she’s intentionally failed to comply with a federal consent decree dealing with the state’s voter rolls. Grimes, a Democrat, is also under investigation by two state agencies: The Executive Branch Ethics Commission is investigating similar claims, and the Personnel Board is investigating allegations that Grimes has created a hostile work environment and that she inappropriately searched the voter registration system to discover the political affiliation of potential and current employees.

There are no specific dates set for investigators to issue their findings, although the special counsel is expected to release his initial report in the coming weeks.

The Republican lawmakers behind the legislation — which passed largely along party lines — said they had grown to fear Grimes was exerting undue influence over state election matters. While the secretary of state is statutorily the “chief elections officer,” the process of helping counties facilitate elections has long been primarily managed by the SBE.

“In her last year in office, we needed to take significant steps to ensure our elections are protected, and to send a message to the next secretary of state — be it a Republican or a Democrat — that these types of shenanigans will not be tolerated,” said Sen. Damon Thayer, a Republican and the author of the bill.

In a statement released after the bill’s passage, Grimes said she was considering taking legal action to prevent the bill from going into effect, claiming it would dangerously centralize authority with the governor’s office. The only expansion of the governor’s authority under the bill is officially appointing two new board members, a role he already fulfills for the six current members who are selected by the parties.

Kentucky’s county clerks, who manage elections at the local level and operate largely independently from the state, widely supported the bill. Clerks from both parties have been critical of Grimes’ alleged interference in election policy.

Julie Griggs, a Democrat and the clerk in McCracken County, called the bill a “good start” that will be “helpful” to the clerks. “I’m glad the vote went the way it did,” she said.

The Republican clerk in Kenton County, Gabrielle Summe, who is also the president of the statewide clerks association, said that the bill will help the clerks have more of a voice at the SBE. “We were ignored [by Grimes], and because she could control the State Board of Elections, we couldn’t even have a relationship with them,” she said. “We’ll move forward with better communication and a clearer process.”

Grimes has denied all of the accusations against her. She has said her staff used the voter registration system for legitimate purposes and has “at all times” followed the law. She has called the accusations of inappropriate searches, hostile treatment and abuse of power filed by two SBE employees — one Democrat and one Republican — “political.”

Some number of Democrats have sided with Grimes, and they called the legislation “vengeful,” saying it would “weaken” election systems. Democratic Rep. Angie Hatton called it a “big baby bully bill.”

During her time in office, Grimes has seized more authority over the SBE than any other secretary before her — dictating when board meetings were to be held, shifting the location of meetings from the SBE office to the Capitol, approving all records requests releases by the SBE and asking the board to pass a resolution granting her day-to-day authority over the SBE. Under her guidance, the secretary of state’s office also received access to the voter registration system for the first time. None of these moves violated existing state law but were in stark contrast to her predecessors’ hands-off treatment of the SBE and its employees.

“There was a situation where a politician identified a place in the law where it didn’t say they could do something and it didn’t say she couldn’t, and she drove a truck through that,” said Tres Watson, a Republican strategist in Kentucky and former communications director for the Kentucky GOP. Watson said the bill restores the prior power balance and called Grimes “the first truly partisan secretary of state that anyone can really remember.”

“When someone behaves like that, it opens the door to others,” he said.

Grimes, in her statement and in a tweet, said the bill would create “chaos.” Griggs and Summe took issue with the claim.

“I can’t imagine what that’s supposed to mean,” said Griggs, who said the bill would not change how voters cast their ballot or the way clerks manage elections. “We do our jobs and we do them well, and I don’t see that this is going to cause chaos in the least bit.”

This article was originally published by ProPublica.

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