Does a judge’s past membership in an organization require his disqualification from a case in which the organization is a party?  That’s the issue presented by Fola Coal Company, LLC’s motion to disqualify United States District Judge Robert C. Chambers from a case involving a challenge by the West Virginia Highlands Conservancy (WVHC) and other organizations to a mining permit issued to Fola by the United States Army Corps of Engineers.  Ohio Valley Environmental Coalition v. U. S. Army Corps of Engineers, Civil Action No. 3:08-CV-0979 (S. D. W.Va. 2008).  Here are Fola’s motion and memorandum in support

Fola’s motion is based, as it admits, not on any first-hand information, but on Judge Chambers’ entry in the Almanac of the Federal Judiciary, which lists “West Virginia Highlands Conservancy” in his Other Activities, and an article in the (West Virginia) State Journal that raised the issue of Judge Chambers’ membership, based on his statement that he formerly belonged to WVHC and probably donated to the group.

Fola alleges that, “[it] believes that, given Judge Chambers’ past membership in and financial support of WVHC (if the reports are accurate), his impartiality might reasonably be questioned in connection with this action.”

Fola attempts to distinguish the Fourth Circuit’s decision in Sierra Club v. Simkins Indus., Inc.,  847 F.2d 1109 (4th Cir. 1988), on the grounds that the judge in that case first disclosed his membership in the Sierra Club and offered to recuse himself. The defendant refused the judge’s offer, then made a post-trial motion to recuse him. Fola claims that its case “is still in the starting blocks,” which makes Sierra Club inapplicable.

In WVHC’s response in opposition to Fola’s motion, it provides an affidavit from the group’s former president, who says that Judge Chambers has not been a member since at least 1994, and received a newsletter because he was a member of the West Virginia House of Delegates. 

The WVHC also notes that the Fourth Circuit in Sierra Club relied on Advisory Opinion No. 40 from the Judicial Conference of the United States, entitled “Membership in Such Organizations as the Anti-Defamation League of B’nai B’rith, the Sierra Club and the National Association for the Advancement of Colored People.” 

The court reasoned that as the opinion suggests that judges resign from such organizations as they “regularly engage in adversary proceedings” in federal court, then “resignation is deemed appropriate in order generally to allow former members to preside in federal court proceedings involving these expansive organizations.” 

On October 15, Judge Chambers entered an order, in which he disclosed “to the best of my memory, the nature and extent of my membership in this organization.” 

He explained that he recalled receiving the organization’s newsletter in the mid-1980s and may have made a minimal financial contribution necessary to be a member and stay on the mailing list.  Judge Chambers is certain that his membership ended by the time his legislative service ended in 1996 and before he was nominated to the bench, and he has not received the newsletter or participated in any activities since 1996.  His order concludes by giving the parties three days to respond with any new or supplemental briefing. 

Today, Fola filed its reply to WVHC’s response and its response to the Court’s order, in which it reiterated the good-faith basis for its motion.

Also today, the Army Corps of Engineers responded that it has no objection to Judge Chambers continuing to preside over the case.

I have a couple of problems with Fola’s motion.  First, this case is one of several involving WVHC that are or have been before Judge Chambers over a period of several years.  As far as I know, this is the first motion to disqualify him based on his prior membership in WVHC.  If his past association with WVHC created an appearance of impropriety or otherwise actually or appeared ot compromise his impartiality, it would have been raised and addressed by now.

 Second, leaving aside whether Fola is genuinely concerned about the appearance of impartiality, its basis for filing the motion is more troubling.  Doesn’t Fola have an obligation to obtain some “first-hand” information to support its motion, rather than a reprint from the Almanac of the Federal Judiciary and an article from the State Journal?  Particularly when the Fourth Circuit, relying on an Advisory Opinion from the Judicial Conference of the United States, has already addressed the issue contrary to Fola’s position?

For some additional background on the litigation, Ken Ward, Jr. and Andrew Clevenger wrote this article in yesterday’s Charleston Gazette.