DO NOT REMOVE FROM FILE FILE BUPY IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA DOCKET NO. 16?0136 ILL. [311 . - PATRICK D. LEGGETT, r. KATHERINE F. APR 2 4 20? ?th GEORGE D. MCKAIN, by his MWWJ attorney in fact, ANITA MCKAIN OF WEST VIRGINIA Mi and ADELE S. MCDOUGAL, Petitioners, v. Civil Action No. 1:13-cv-0004 FPS (U.S. District Court, Northern District) EQT PRODUCTION COMPANY, a corporation; EQT CORPORATION, a corporation; EQT ENERGY, LLC, a Delaware limited liability company; EQT INVESTMENTS HOLDINGS, LLC, a Delaware limited liability company; EQT GATHERING, LLC, a Delaware limited liability company; and EQT MIDSTREAM PARTNERS, LP, a Delaware limited partnership, Respondents. MOTION TO: 1. CANCEL THE MAY 2, 2017 2. . VACATE JUSTICE ELIZABETH D. VOTE TO GRANT REHEARING, RESULTING IN THE DENIAL OF THE REHEARING AND 3. ISSUE THE MANDATE FROM THE DECISION REACHED BY A MAJORITY OF THIS COURT ON NOVEMBER 17, 2016 Marvin W. Masters, WVSB No. 2539 Lonnie C. Simmons, WVSB No. 3406 Richard A. Monaham, WVSB No. 6489 DiTrapano, Barrett, DiPiero, McGinley April D. Ferrebee, WVSB No. 8034 Simmons, PLLC The Masters Law Firm LC PO. Box 1631 181 Summers Street Charleston, West Virginia 25326 Charleston, West Virginia 25301 Michael W. Carey, WVSB No. 635 Carey, Scott, Douglas Kessler, PLLC 707 Virginia Street, East Charleston, West Virginia 25323 Counseifor Petitioners IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA DOCKET NO. 16-0136 PATRICK D. KATHERINE F. GEORGE D. MCKAIN, by his attorney in fact, ANITA MCKAIN and ADELE S. MCDOUGAL, Petitioners, v. Civil Action No. 1:13-cv-0004 FPS (US. District Court, Northern District) EQT PRODUCTION COMPANY, a corporation; EQT CORPORATION, a corporation; EQT ENERGY, LLC, a Delaware limited liability company; EQT INVESTMENTS HOLDINGS, LLC, a Delaware limited liability company; EQT GATHERING, LLC, a Delaware limited liability company; and EQT MIDSTREAM PARTNERS, LP, a Delaware limited partnership, Respondents. MOTION TO: 1. CANCEL THE MAY 2, 2017 2. VACATE JUSTICE ELIZABETH D. VOTE TO GRANT REHEARING, RESULTING IN THE DENIAL OF THE REHEARING AND 3. ISSUE THE MANDATE FROM THE DECISION ISSUED BY A MAJORITY OF THIS COURT ON NOVEMBER 17, 2016 I. INTRODUCTION To the Honorable Justices of the - West Virginia Supreme Court of Appeals: Petitioners respectfully move the Court to cancel the argument scheduled to be held on May 2, 2017, so the Court can address the critical constitutional and procedural issues raised in this MOTION. First, because Justice Elizabeth D. Walker failed to disqualify herself from voting on the rehearing petition ?led in this case, Petitioners? Due Process rights, based upon the United States Supreme Court?s holding in Caperton v. A. T. Massey Coal Co., Inc. 556 U.S. 868, 129 2252, 173 L.Ed.2d 1208 (2009), were violated. The remedy for this Due Process violation is for the Court to enter an order vacating Justice Walker?s vote to grant the rehearing petition. Second, once Justice Walker?s vote is vacated, the Court must enter an order denying the rehearing petition on a two to two vote because Article Section 4 of the West Virginia Constitution requires a majority vote for any motion to be granted. Third, with the rehearing petition denied, the Court must issue the ?nal mandate based upon the decision published by this Court on November 17, 2016. II. STATEMENT OF FACTS Petitioners (plaintiffs below) are the owners of certain undivided interests in oil and gas subject to an. October 31, 1906 "flat rate" lease which was later assigned to Respondent EQT Production Company (hereinafter The compensation to Petitioners for certain of the wells on this lease was converted to a one-eighth royalty through the process established in Code 22-6-8 (hereinafter "the Flat-Rate Statute"), which generally prohibits the drilling of new wells or reworking of existing wells on property subject to a ?at?rate lease unless the lessee promises to pay the lessor(s) a volume-based royalty of "not less than one eighth of the total amount paid to or received by or allOwed to [the lessee] at the wellhead . . . on all such Oil or gas to be extracted, produced or marketed from the well." See W. Va. Code The dispute in this case arises as a result of EQT taking signi?cant deductions from Petitioners' one-eighth royalty for ?post-production" expenses incurred by EQT. Petitioners ?led this lawsuit in the Circuit Court of Doddridge County, West Virginia, and EQT removed it to the United States District Court for the Northern District of West Virginia. The District Court subsequently certi?ed two questions to this Court and concluded in its order that the resolution of the issues presented ?carries great signi?cance not only to EQT, but to oil and gas lessees generally.? (Emphasis added). In the November 17, 2016 Opinion authored by Justice Brent D. Benjamin joined in by Justices Robin J. Davis and Margaret L. Workman, this Court reformulated the ?rst certi?ed question and, after these issues were thoroughly briefed and argued, the Court held in Syllabus Point 2: Whenever West Virginia Code 22-6-8(e) (1 994) requires the ?ling of an af?davit as a prerequisite to obtaining an oil or gas drilling or reworking permit, the averment in the af?davit that the landowner shall receive a royalty of not less than one-eighth of the amount realized by the holder of the working interest ?at the wellhead? means that the royalty payment is not to be diluted by costs and losses incurred from the wellhead before a marketable product is rendered. The Court declined to answer the second certi?ed question, ?nding that it was not properly before the Court. Id. at 16. Justice Allen H. Loughry, ll, now Chief Justice, ?led a dissenting opinion, which was joined by then-Chief Justice Menis E. Ketchum, II. On December 19, 2016, EQT ?led a petition for rehearing. Pursuant to Rule 26(b) of the West Virginia Rules of Appellate Procedure, the timely ?ling of this petition stayed the issuance of the mandate in this case. Before the Court ruled on the petition for rehearing, Justice Benjamin left the bench as a result of the 2016 election and was replaced by Justice Walker. Although this Court has never addressed this issue explicitly, by practice and tradition, only those members of the Court who participated in the review of the briefs, the argument, if such argument is presented, and the decision and opinion conferences are involved in deciding the case. For example, when a member of this Court is not present for oral argument, the Chief Justice routinely advises the parties that the absent Justice is monitoring the argument over the internet and will be participating in deciding the case. Similarly, when a rehearing petition is being considered, only the members of the Court who were involved in reaching the decision issued in the case vote on whether or not a rehearing should be granted. However, without any explanation, Justice Walker participated in deciding several 3 different rehearing petitions ?led in cases decided prior to her being elected to this Court. By Order dated January 25, 2017, the Court granted the petition for rehearing, with Justices Loughry, Ketchum, and Walker in favor of rehearing, and Justices Davis and Workman against rehearing. Although EQT was unable to persuade either Justices Davis or Workman that this case should be reheard, which under Rule 25 is limited only to ?exceptional cases,? somehow Justice Walker found that ?some points of law or fact? had been ?overlooked or misapprehended? in the published decision. Id. Counsel for Petitioners recently discovered facts which from an objective perspective establish she should not have participated in the rehearing vote, not only because her participation was contrary to the practice and tradition of this Court, but also, even if such participation procedurally was appropriate, because she should have disquali?ed herself. The failure of Justice Walker to disqualify herself from participating in the rehearing of this case has resulted in Petitioners? Due Process rights under the Fourteenth Amendment to the United States Constitution being violated. The Secretary of State records reveal Justice Walker?s husband made multiple loans totaling $525,000.00 to Justice Walker?s campaign. On March 31, 2017, the Walker campaign ?led amended Financial Reports showing that these loans are past due, and no payments in satisfaction of the loans have been made as of March 31, 2017.1 The loans made to Justice Walker to help her get elected to this Court far exceeded the combined loans provided to her four opponents. According to the 2016 Best Practices Guide For Campaign Finance, provided by the West Virginia Secretary of State?s of?ce, ?Loans from a spouse or lending institution may not be forgiven.?2 (Emphasis lSee 2See Finance%20Guide.pdf. added). Only loans made by the actual candidate can be forgiven, but in that instance, the loan is treated as a contribution from the candidate. In addition to the overdue loan owed by Justice Walker?s committee to her husband, on or about April 14, 2017, counsel for Petitioners learned that Justice Walker?s husband owns stock in several different natural gas producing and related energy companies, including Chevron Corporation, Columbia Pipeline Group, Conoco Phillips, Dominion Resources, Duke Energy Corporation, General Electric Corporation, Portland General Electric, Royal Dutch Shell, BP (British Petroleum) PLC, and ExxonMobil Corporation.3 XTO Energy, Inc. (hereinafter Energy"), an ExxonMobil subsidiary, has signi?cant gas production operations in this State.4 Publicly available data on the West Virginia Department of Environmental Protection's website identi?es XTO Energy as the operator of nearly 800 gas wells in West Virginia.5 In addition, the West Virginia Oil and Gas Association (hereinafter which has submitted amicus curiae briefs in this matter (including a brief in support of the petition for rehearing) strenuously arguing that gas lessees are entitled to make deductions for post-production costs, has an XTO Energy employee on its board of directors. More speci?cally, website lists Steve Forde of XTO Energy as a member of board of directors, as well as the Chairman of WVONGA's "Energize Committee."6 111. ARGUNIENT A. Justice Walker was required to disqualify herself based upon the appearance of impropriety created by the massive loan owed by Justice Walker?s committee to her husband combined with her husband?s ownership of gas and related 3See ing=6262 and 4 XTO Energy? 5 website identi?es it as an ExxonMobil subsidiary, and bears the ExxonMobil logo as well as an ExxonMobil Corporation copyright. See 5 See ?2015 Production Data? available at Pages/defaultaspx. 6 See 5 energy stocks that will benefit if the holding in the November 17, 2016 opinion is changed, based upon her deciding vote, in favor of the position sought by the gas industry In virtually all cases, the members of the Court who participated in the issuance of a decision also would be the members of the Court who would resolve any petitions for rehearing challenging that decision. While the Court has not adopted any speci?c rule addressing this issue, Petitioners respectfully submit the Court? 5 practice and tradition of having rehearing petitions considered only by the Justices who were involved is based upon the Court?s history as well as the Court?s constitutional authority. In some of-the earliest cases issued by this Court addressing the right of a party to seek a rehearing, this Court had not yet adopted any rules and the practice at the time required ?rst that any rehearing petition had to be resolved during the same term of court and later within thirty days after the end of the term. Thus, in practice, while this speci?c issue was not discussed, the members of the Court who participated in the decision during that term also would decide any rehearing petition. See generally Hall Smith v. Bank of Virginia, 15 323 (1879); Shields v. Romine, 123 212, 14 777 (1941). Another reason why only the Justices who participated in deciding a case should rule on whether a rehearing should be granted stems from the Court?s constitutional authority. Article Section 2 of the West Virginia Constitution provides, ?The supreme court of appeals shall consist of ?vejustices.? Decisions by this Court are not binding authority ?unless a majority of the justices of the court concur in such decision.? Article Section 4 of the West Virginia Constitution. Under these provisions, only those Justices who made up the majority of the Court at the time the decision was made have the authority ultimately to create a majority decision that creates binding authority. In practice, if the decision was unanimous, the vote to deny the rehearing petition would be unanimous. If the decision was 3 to 2, the vote to deny the rehearing petition would be 3 to 2. Based upon this pattern, if the rehearing petition in this case, which simply repeated arguments already presented and rejected, had been considered before Justice Benjamin left the Court, the vote would have been 3 to 2 to deny the rehearing. Thus, only in those rare cases where a member of the majority is persuaded by the arguments presented that ?exceptional circumstances? exist Will a rehearing petition be granted. It was only the happenstance of the timing in this case that created this situation where Justice Benjamin was not on the Court at the time the rehearing was decided. The resolution of any rehearing petition should not be dependent upon the identity of the Justices making the decision, but rather should be based upon the very limited reasons established by Rule 25. In this case, Justice Walker cast the deciding vote to grant the rehearing petition challenging a decision that was issued prior to her becoming a member of this Court. State appellate courts are split for a variety of policy reasons on whether a new justice can vote to rehear a decision issued before the justice became a member of the appellate court. In Gas Products Co. v. Rankin, 63 Mont. 372, 207 P. 993, 1000 (1922), the Montana Supreme Court explained its concerns about permitting a newly elected or appointed Justice to decide whether to rehear a case decided previously: The real effect of such a conclusion, in the opinion of all the Justices, would be to establish a precedent that might have mischievous and unfortunate results. There is not the slightest reason to suppose that the opinion of any one of the members of this court who participated in the original decision would be changed if a rehearing should be granted and a reargument were allowed. And if the original decision of this court should be reversed, in the language of the Supreme Court of Minnesota, in the case of Woodbury v. Dorman, 15 Minn. 341 (Gil. 274): ?This result would follow, not from a conviction upon the part of the members of the court by which the case was originally heard and determined, that the decision was erroneous, nor from the consideration of reasons and arguments not before advanced and considered, but solely from the change in the composition of the court.? Every citizen is desirous of having our laws de?nitely established, and the decision of the majority of this court upon any legal proposition coming before it is the law of the state, and should not be subject to change upon the change of the personnel of the court. Rights of persons and of property would never be secure if such were the case. The matter has been given thoughtful and earnest consideration by every member of this court, and it is the opinion of the court that in the orderly and proper administration of justice and interpretation of the law, the motion for rehearing should, under the circumstances and conditions of this particular case, be acted upon only by the members of the court participating in the original decision.7 (Emphasis added). Even if Justice Walker had the right to rehear a decision published before she was on the Court, Petitioners respectfully submit that Rule 33 of the West Virginia Rules of Appellate Procedure and Canon 2, Rule 2.11 of the Code of Judicial Conduct required Justice Walker to disqualify herself from participating in this matter. Rule 33 provides, in relevant part, that Justice shall disqualify himself or herself, upon proper motion or sua sponte, in accordance with the provisions of Canon 2, Rule 2.1 1 of the Code of Judicial Rule 2.1 1 provides, in relevant part, that a judge ?shall? disqualify himself or herself ?in any proceeding in which the judge's impartiality might reasonably be questioned,? including but not limited to the following situations: (2) The judge knows that the judge, the judge's spouse or domestic partner, or a person within the third degree of relationship to either of them, or the spouse or domestic partner of such a person is: . . . a person who has more than a de minimis interest that could be substantially affected by the proceeding . . . 7See also New Richmond News v. City of New Richmond, 365 Wis.2d 610, 875 107 (2015)(Discusses Wisconsin? 3 cases addressing this issue and explains the United States Supreme Court does not allow a Justice who was not on the Court when a decision was issued to vote on a rehearing petition). The courts permitting a new Justice to vote on a rehearing petition based upon an earlier issued decision invite the ?mischievous and unfortunate? results that concerned the Montana Supreme Court. 8 (3) The judge knows that the judge's spouse . . . has an economic interest in the subject matter in controversy or is a party to the proceeding. Under the West Virginia Code of Judicial Conduct, a judge has a mandatory obligation, even when no motion to disqualify has been ?led, to determine whether or not the judge must be disquali?ed in any proceeding. Rule also requires a judge to ?keep informed about the judge's personal and ?duciary economic interests, and make a reasonable effort to keep informed about the personal economic interests of the judge's spouse or domestic partner and minor children residing in the judge's household.? As applied herein, Justice Walker had a duty to keep informed about the stocks owned by her husband. The Due Process implications when an appellate judge fails to disqualify himself or herself when the facts require such a result are discussed in Caperton v. A. T. Massey Coal C0., Inc. 556 US. 868, 883-84, 129 2252, 2263, 173 L.Ed.2d 1208, (2009), where the United States Supreme Court explained Due Process requires the application of an objective analysis: The dif?culties of inquiring into actual bias, and the fact that the inquiry is often a private one, simply underscore the need for objective rules. Otherwise there may be no adequate protection against a judge who simply misreads or misapprehends the real motives at work in deciding the case. The judge?s own inquiry into actual bias, then, is not one that the law can easily superintend or review, though actual bias, if disclosed, no doubt would be grounds for appropriate relief. In lieu of exclusive reliance on that personal inquiry, or on appellate review of the judge?s determination respecting actual bias, the Due Process Clause has been implemented by objective standards that do not require proof of actual bias. See Tumey, 273 U.S., at 532, 47 437; Mayberry, 400 U.S., at 465?466, 91 499; Lavoie, 475 U. S., at 825, 106 1580. In de?ning these standards the Court has asked whether, ?under a realistic appraisal of tendencies and human weakness,? the interest ?poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.? Withrow, 421 U.S., at 47, 95 1456. (Emphasis added). On or about January 27, 2017, when Justice Walker was presented with the rehearing petition ?led in this case, her committee owed more than one half million dollars to her husband, which loan has to be repaid in full in order to comply with West Virginia law. In fact, the loans made by her husband constituted 70% of all monies received by her campaign.8 It is safe to say that without this extraordinary loan from her husband, Justice Walker likely would not have been elected. Thus, Justice Walker not only has a debt of gratitude to her husband for his efforts in getting her elected, she also has an actual ongoing ?nancial obligation owed to her husband to repay the loan. This massive debt owed to her husband combined with his gas industry stock holdings, ?poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.? This unusual factor heightens the appearance of potential bias and required her to disqualify herself from addressing the rehearing petition. Just as the United States Supreme Court in Caperton did not question Justice Benj amin?s subjective ?ndings of impartiality and propriety, Petitioners similarly do not question whatever subjective analysis Justice Walker considered prior to making the decision to vote on the rehearing petition ?led in this case. However, from an objective perspective, the facts the parties now know regarding the campaign loan Justice Walker?s campaign committee owes to her husband combined with the economic interest Justice Walker?s husband has in the outcome of this case, based upon his stock holdings and the involvement of the WVONGA as an amicus, raises reasonable questions about Justice Walker?s impartiality and has an appearance of impropriety. Justice Walker was obligated, under Rules 1.2 and 2.11, to examine the ?nancial holdings she and her husband had to determine whether or not, ?om an objective viewpoint, there would be 3 The Walker campaign received total contributions of $227,63 5.5 0 and $525 ,000.00 in loans from her husband for a total of $752,63 5.50. Thus, the loans constituted 70% of the monies received by the campaign. The campaign spent $743,450.94 in support of her election. See cite provided in footnote 1. 10 an appearance of impropriety if she participated in this case. While Justice Walker?s husband does not own stock in a party to this case, he does own stock in several gas and energy companies that stand to bene?t from a ruling in favor of Respondent EQT in this case. If EQT prevails in this proceeding, and this Court rules that Code 22-6-8, permits gas companies to deduct a portion of their post-production costs from the royalties they owe to their lessors, that ruling will obviously bene?t other gas companies (like XTO Energy) with operations in this state. Judge Stamp certi?ed this question because he recognized the resolution of the issues in this case carries great signi?cance to oil and gas lessees generally. Thus, by virtue of his ownership interest in multiple gas and energy companies, which stand to bene?t from a ruling that would allow the gas industry to deduct post-production costs from the royalties owed to West Virginia gas owners, Justice Walker?s husband has an economic interest in the subject matter in controversy, and an interest that could be substantially affected by this proceeding. See Code of Judicial Conduct, 'Rule (3). As a result, Rule 2.11 of the West Virginia Judicial Code of Conduct required Justice Walker to disqualify herself from this case and to refrain from taking any action on the rehearing petition. Here, Justice Walker? 3 spouse has more than a de minimis interest9 that could be substantially affected by the outcome of this proceeding, as well as an economic interest in the subject matter in controversy. As previously discussed, Justice Walker?s husband owns stock in ExxonMobil, and ExxonMobil?s subsidiary, XTO Energy, is a gas producer with signi?cant operations in this state. As the operator of nearly 800 gas wells in West Virginia, XTO Energy, and thus its parent company ExxonMobil, stands to bene?t greatly from a ruling in this case that allows gas producers, like XTO 9 The "Terminology" section of the West Virginia Code of Judicial Conduct explains that "de minimis" interest means "an insigni?cant interest that could not raise a reasonable question regarding the judge's impartiality." See Code of Judicial Conduct, Terminology. In light of the multiple gas and energy related stocks owned by Justice Walker?s husband, there is nothing in the public record to suggest that such ownership represents only a de minimis interest. 11 Energy, to deduct a portion of their post-production expenses from the 1/ 8th royalty that they would otherwise owe to the owners of the gas in place. Indeed, the fact that WVONGA, which has submitted amicus curiae briefs in support of Respondent EQT in all phases of this case and has an XTO Energy employee on its board of directors, demonstrates that XTO Energy and ExxonMobil oppose Petitioners? position on the issue before the Court, and have a stake in the outcome. Inasmuch as XTO Energy and ExxonMobil stand to bene?t ?nancially from a ruling allowing XTO Energy to take deductions from its lessors? royalties, Justice Walker?s husband?s ownership of ExxonMobil stock gives him an economic interest in the subject matter in controversy. Comment . six to Rule 2.1 1 of the West Virginia Code of Judicial Conduct, as well as the Terminology section of the Code, de?nes ?economic interest? as ?ownership of more than a de minimis legal or equitable interest.? See Code of Judicial Conduct, Rule Comment 6; see also Code of Judicial Conduct, Terminology. The Code then excludes from this de?nition ?an interest in the individual holdings within?a mutual or common investment fund,? unless the judge participates in the management of the interest or the interest could be substantially affected by the outcome of a proceeding before the judge. Id. The fact that the Code excludes holdings within a mutual or common investment fund from the de?nition of ?economic interest,? but does not exclude direct stock ownership in individual companies outside of a mutual fund, indicates that stock ownership falls within the de?nition of ?economic interest.? This conclusion is bolstered by federal precedent regarding the highly analogous federal judicial disquali?cation statute. The federal statute requires a judge to disqualify himself or herself if the judge knows that the judge or the judge?s spouse has ?a ?nancial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding.? 28 U.S.C. 455(b)(4). The federal statute?s de?nition of ??nancial interest? is nearly identical to the West Virginia Code of Judicial Conduct?s de?nition 12 of ?economic interest.? It includes ?ownership of a legal or equitable interest, however small,? and excludes ?[o]wnership in a mutual or common investment fund that holds securities . . . unless the judge participates in the management of the fund.? 28 U.S.C. 45 Critically, under federal law, ?it is well-established that the ownership of stock constitutes a ??nancial interest? for purposes of Cent. Tel. C0. of Virginia v. Sprint Commc?ns C0. of Virginia, 715 F.3d 501, 515 (4th Cir. 2013)(citing Shell Oil Co. v. United States, 672 F.3d 1283, 1289 (Fed. Cir. 2012)). Given the substantial similarity between the federal de?nition of ??nancial interest? and the West Virginia de?nition of ?economic interest,? it is clear that stock ownership is an ?economic interest? as that term is used in the West Virginia Judicial Code of Conduct.10 For the foregoing reasons, Petitioners respectfully submit Justice Walker should not have participated in deciding the rehearing petition in this case, because procedurally it was improper and because she should have disquali?ed herself. B. Under Caperton, the remedy for violating Petitioners? Due Process rights is to vacate Justice Walker?s vote to grant the rehearing petition As demonstrated above, Justice Walker is disquali?ed and never should have participated in this matter. The remaining question is under these facts, what is the mo st appropriate remedy for this situation where Justice Walker voted on a rehearing petition when she should have disquali?ed herself? The remedy for the Due Process violation in Aetna Life Insurance Co. v. Lavoie, 475 US. 813, 106 1580, 89 L.Ed.2d 823 (1986), and Caperton was to vacate the vote issued by the 10Furthermore, the federal courts have held that the owner of stock in a parent corporation has a direct legal or equitable interest in a controlled subsidiary, and that a judge should therefore disqualify himself or herself where the judge or the judge?s spouse owns stock in the parent company of an entity I involved in the litigation. See Shell Oil, 672 F.3d at 1291 (citing Key Pharma, Inc. v. Mylar: Labs., Inc, 24 F.Supp.2d 480, 482 n. 2 13 disquali?ed Justice and to remand those cases to the respective state appellate courts for further proceedings. In both cases, vacating the vote of the disquali?ed Justice created a 2 to 2 tie vote on the underlying merits of those appeals. In both cases, a Justice was specially appointed, the cases were presented again, and new decisions were issued. The present case is different because a majority of this Court on November 17, 2016, already issued a published decision. If no rehearing petition had been ?led, that decision would have become ?nal and the mandate would have issued thirty days after publication of this opinion. When EQT timely ?led its petition for rehearing, under Rule 26(b), such ?ling stayed the issuance of the Court?s ?nal mandate order until an order is issued addressing the rehearing petition. Because Justice Walker should haVe disquali?ed herself, her vote to grant the rehearing petition must be vacated, under the United States Supreme Court?s holdings in Caperton and Lavoie, leaving the vote on the rehearing petition 2 to 2. The effect of a tied vote is the rehearing petition is denied because it takes a majority vote for a rehearing petition to be granted. Therefore, Petitioners respectfully submit the Court shOuld issue an order vacating Justice Walker?s vote and denying the rehearing petition on a 2 to 2 vote, to issue the mandate immediately, based upon the November 17, 2016 decision supported by a majority of this Court, and to cancel any further proceedings in this case. IV. CONCLUSION For the foregoing reasons and to remedy the Due Process violation committed in this case, Petitioners respectfully move the Court to: 1. Cancel the argument scheduled to be held on May 2, 2017; 14 2. Vacate Justice Elizabeth D. Walker? 3 vote to grant rehearing, which will result in the rehearing petition being denied; and 3. Issue the mandate from the decision reached by a majority of this Court on November 17,2016. [Mama/WV liq/MW, Marvin W. Masters, WVSB N0. 39 Richard A. Monaham, WVSB No. 6489 April D. Ferrebee, WVSB N0. 8034 The Masters Law Firm LC 181 Summers Street Charleston, West Virginia 25301 (304) 34 -3106 W?w I Michael W. Care 63% Carey, Scott, uglas Kessler LLC 707 Virginia Street, East Charleston, West Virginia 25 323 (304) 345-1234 PATRICK D. KATHERINE F. GEORGE D. MCKAIN, by his attorney in fact, ANITA MCKAIN and ADELE S. MCDOUGAL, Petitioners, ?By Counse14 Lonnie C. Simmons, WVSB No. 3406 DiTrapano, Barrett, DiPiero, McGinley Simmons, PLLC PO. Box 1631 Charleston, West Virginia 25326 (304) 342-0133 15 COUNTY OF KANAWHA STATE OF WEST VIRGINIA AFFIDAVIT This day came Marvin W. Masters, who after being duly sworn did depose and say; I am co-counsel of record representing Petitioners in the West Virginia Supreme Court of Appeals, Docket No. 16-0136; Pursuant to Rule 33 of the West Virginia Rules of Appellate Procedure, I hereby certify as follows: 1. that have read "Petitioners? Motion to: 1. Cancel the May 2, 2017 Argument; 2. Vacate Justice Elizabeth D. Walker's Vote to Grant Rehearing, Resulting in the Denial of the Rehearing Petition; and 3. Issue the Mandate From the Decision Issued by a Majority of This Court on November 17, 2016", and, to the best of my knowledge, information, and belief formed after reasonable inquiry that it is well grounded in fact and is warranted by existing law or good faith argument for the extension, modification or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. Further afiant sayeth not. Marv' . aters, Esq. Taken, sworn to and subscribed before me, this the 24th day of April, 2017. My commission expires Am 5' a a Q- Notary Pub?c OFFICIA STATE OF WESTSEA VIRGINIA NOTARY PUBLIC a Mary Llngan 600 Redwood Lane Elkvlew, WV 25071 5 ycommlaslon Expires 5. 2022 COUNTY OF KANAWHA STATE OFIWEST VIRGINIA AFFIDAVIT Thisday came Michael W. Carey, who after being duly sworn did depose and say; I am co?counsel of representing Petitioners in the West Virginia Supreme Court of Appeals. Docket No. 16?0136; Pursuant to Rule 33 of the West Virginia Rules of Appellate Procedure, I hereby certify as follows: 1. that have read ?Petitioners' Motion to: 1. Cancel the May 2, 2017 Argument; 2. Vacate Justice Elizabeth D. Walker's Vote to Grant Rehearing, Resulting in the Denial ofthe Rehearing Petition; and 3. Issue the Mandate From the Decision Issued by a Majority of This Court on November ?17, - 2016", and, to the best of my knowledge, information, and belief formed after reasonable inquiry that it is well grounded in fact and is warranted by existing law or good-faith argument for the extension, modification or reversal of existing law; and 2. that it is not interposed for any improper purpose, such as to harass" or to cause unnecessary delay or needless increase in the cost of litigation. Further afiant sayeth not. MichaelW a.Crey,K_ Esq. Taken, sworn to and subscribed before me, this the day of Ap II, 2017. Nota Public Stataof was, Ea Smith 707wrgInIeSLE. Poma'IgLLc Notary Public II II I Ch?dm. W26323 . .. Expires April 15. 201B IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA DOCKET NO. 16-0136 PATRICK D. KATHERINE F. GEORGE D. MCKAIN, by his attorney in fact, ANITA MCKAIN and ADELE S. MCDOUGAL, Petitioners, V. Civil Action No. 1:13-cV-0004 FPS (US. District Court, Northern District) EQT PRODUCTION COMPANY, a corporation; EQT CORPORATION, a corporation; EQT ENERGY, LLC, a Delaware limited liability company; EQT INVESTMENTS HOLDINGS, LLC, a Delaware limited liability company; EQT GATHERING, LLC, a Delaware limited liability company; and EQT PARTNERS, LP, a Delaware limited partnership, Respondents. CERTIFICATE OF SERVICE 1, Michael W. Carey, counsel for Plaintiffs, do hereby certify that on the 20Ill day of April, 2017, I have served a true copy of the foregoing MOTION TO: 1. CANCEL THE MAY 2, 2017 2. VACATE JUSTICE ELIZABETH D. VOTE TO GRANT REHEARING, RESULTING IN THE DENIAL OF THE REHEARING AND 3. ISSUE THE MANDATE FROM THE DECISION REACHED BY A MAJORITY OF THIS COURT ON NOVEMBER 17, 2016 upon the parties to this action, Via United States Mail, postage pre-paid, addressed as follows: David K. Hendrickson, WVSB No. 1678 Carl L. Fletcher, Jr., WVSB No. 1225 Hendrickson Long PLLC 214 Capitol Street PO. Box 11070 Charleston, West Virginia 25339 Co unsel for Defendants Marvin W. Masters, WVSB No. 2539 Richard A. Monahan, WVSB No. 6489 April D. Ferrebee, WVSB No. 8034 The Masters Law Firm lo 181 Summers Street Charleston, West Virginia 25301 304-342-3106 Co-Counsel for Plaintiffs Howard M. Persinger, HI, WVSB No. 6943 Persinger Persinger 237 Capitol Street Charleston, West Virginia 25301 304-346-9333 Counsel for Amicus Curiae, WVLand and Mineral Owners Association/WV Royalty Owners John F. McCuskey, WVSB No. 2431 Shuman McCuskey Slicer, PLLC P. O. Box 3953 Charleston, West Virginia 25339 304- 345- 1400 Counsel for Amicus Curiae, WV Land and Mineral Owners Association/WV Royalty Owners Timothy M. Miller, WVSB No. 2564 Mychal S. Schulz, WVSB No. 6092 Babst, Calland, Clements Zomnir, RC. 300 Summers Street, Suite 1000 Charleston, West Virginia 25301 681-205-8888 Counsel for Amicus Curiae, WV Oil and Natural Gas Association WQ Michael W. 9463i, WVSB