CHARLESTON — Gov. Jim Justice has suggested a federal judge’s warning that his company continues to flout court directives may be politically motivated.
“I can’t tell anything but the truth,” Justice said last week. “But there’s been a real motivation by Judge Berger, and she has passed down some rulings in regard to me and our companies that have been bizarre to say the very least.
“I would be the first to say that if someone on the outside were to look from a legal mind standpoint, they would say ‘unbelievable.’”
Justice made his comments last week on MetroNews’ “Talkline” in response to a question by host Hoppy Kercheval.
U.S. District Judge Irene Berger has served on the federal bench since 2009, when she was confirmed by the U.S. Senate by a 97-0 vote. She is the first African-American female federal judge in West Virginia’s history.
Earlier this month, Judge Berger filed an order in a longstanding case involving one of the companies owned by the governor and his family, Justice Energy.
Justice Energy was already in contempt in the case, which dates back to 2013. The court system has been trying to collect on a $1.23 million contempt order.
Berger ordered Justice Energy to provide greater financial information by Jan. 25 and to make its employees available for depositions by Feb. 15.
But most notable was a footnote that Berger included on the filing.
“The Defendant’s decision to simply ignore Court orders, deadlines and obligations precipitated the imposition of the contempt sanction,” Berger wrote.
“Continuing to flout the Court’s directives is not a strategy likely to engender positive results.”
A federal lawsuit filed by James River Equipment Nov. 6, 2013, alleged that Justice Energy failed to pay for parts, equipment and service.
At the time, all that was owed was $148,496.14.
On Jan. 21, 2014, the court granted James River’s motion for default and awarded $156,112, an amount that included damages.
But Justice Energy failed to pay and its representatives failed to appear at a series of hearings.
This was at a time when the company was still owned by the Russian Energy company Mechel OAO. Justice had sold to Mechel in May 2009 for $568 million and then bought it back in 2015 for $5 million.
The governor, speaking last week on “Talkline,” not only blamed Berger but also the Russian company that briefly owned Justice Energy.
“This all happened with the Russian company,” he said. “And these mailings were made, and we had no idea of any of this. No earthly idea. They were sent to the Russian company. And sent to addresses that never came to us. Then all of a sudden we don’t show up, and we would have had no idea to show up.
“And then we get basically just drug through the coals in a pretty dadgum tough way.”
One significant staffing connection remained as the coal company ownership transitioned from Mechel back to Justice. Roman Semenov, who had been general counsel under Mechel, was retained in the same role during the transition.
As the struggle continued for James River to receive the $156,112 judgment, the company in late 2015 filed a motion for contempt.
That motion also included a request to “pierce the corporate veil” of Justice Energy and to imprison its corporate officers and directors until the payment was made.
At the time, Berger declined to go that far.
“The Court notes that piercing any corporate veil is an extraordinary remedy, and unnecessary at this point to achieve the plaintiff’s intended results in this case,” Berger wrote in a Jan. 5, 2016, order.
But the judge did grant the contempt motion and ordered Justice Energy to be fined $30,000 a day until it could demonstrate compliance with the earlier order.
By Feb. 26, 2016, as Justice was warming up for the Democratic primary race for governor, the situation had barely improved.
But the two parties had worked out a payment plan, and Berger agreed.
She ordered the judgment of $1,230,000, representing the total amount of the sanction from her earlier order.
Justice Energy twice appealed to the Fourth Circuit U.S. Court of Appeals. The company’s first and second appeal raised many of the issues involving the transition from Russian ownership that Justice described on “Talkline.”
The appeals singled out Semenov, the general counsel who had bridged the two ownership groups, for either not receiving or for failing to communicate to other officers the court filings during that period.
The appeals also took issue with the $30,000-a-day penalty that had added up to the $1,230,000 fine, saying it was unclear how the judge arrived at that amount and contending it was an abuse of discretion.
Twice, judges with the Fourth Circuit ruled against Justice Energy. “We have reviewed the record and find no reversible error,” judges wrote in the second dismissal.
Justice in the “Talkline” interview took issue not only with Berger’s positions in that case but also made reference to her role overseeing a dispute between Old White Charities Inc. and insurance underwriters over prize money promised for holes in one at The Greenbrier Classic.
A federal appeals court in 2017 upheld Berger’s ruling in favor of the insurance underwriters. That meant Justice’s charity was on the hook for about $200,000 in hole-in-one payouts.
“Whether it be the holes in one insurance at The Greenbrier or whether it be whatever it is, we have gotten some really bizarre rulings, and it is at least our feeling that these rulings are being motivated by things that are just not right,” Justice said.
“I believe the judge has penalized us and not listened to what I think should have been reasonable. But the judge is being very, very punitive to us. And I guess that’s a thing that’s in the rights of the judge, and the judge probably thinks she’s doing the right thing.
“And I don’t understand what is motivating this whole thing, whether it be political bias or whatever it may be but I can tell you we’ve gotten some pretty tough rulings, that’s for sure.”
