I I CE 825 Third Avenue, Suite 400 Writer?s Contact Information Huntington, WV 25701 304.526.8126 OHNSON (304) 522?8290 (304) 526?8089 Fax PLLC ATTORNEYS AT LAW October 3, 2108 BY MAIL AND EMAIL Hon. Edythe Nash Gaiser Clerk of Court Supreme Court of Appeals of West Virginia State Capitol, Roorn E-317 1900 Kanawha Blvd. East Charleston WV 25305 Re: Andrews V. Antero Supreme Court No. 17-0126 Dear Ms. Gaiser: Please ?nd enclosed an original and ?ve copies of a RESPONSE TO MOTION FOR DISQUALIFICATION in this proceeding. If anything further is required, please let me know. Very truly yours, d1? Ancil G. Ramey Enclosures cc Anthony]. Majestro James C. Peterson Charles F. Speer Richard W. Middleton Christopher L. Hamb Stephen F. Gandee 276000.50148 Th: I'mlduii: Nelml nl Indlpudlnl IJI rum West Virginia Ohio 0 Kentucky 0 0 Texas 0 Colorado THE SUPREME COURT OF APPEALS OF WEST VIRGINIA DEBORAH ANDREWS, RODNEY ASHCRAFT, LINDSEY FEATHERS, ROBERT GOLDEN, DANIEL KINNEY, SHARON KINNEY, CHARLES A. MAZER, CHARLES T. MAZER, DOUGLAS MAZER, SHAWN MAZER, SUSAN MAZER, GREGG MCWILLIAMS, DAVID SCOTT NUTT, JR., AND ROBERT SIDERS, PETITIONERS, vs.) No. 17-0126 ANTERO RESOURCES CORPORATION AND HALL DRILLING, LLC, RESPONDENTS. RESPONSE TO APPELLAN TS MOTION FOR DISQUALIFICAT ION COMES NOW the Respondent, Antero Resources Corporation, by counsel, and for its Response to Appellants? Motion for Disquali?cation, states as follows: 1. Many of the factual allegations and opinions contained in the disquali?cation motion and supporting a?idavit are inaccurate and/ or incorrect, and Respondent incorporates by reference an Af?davit of its counsel attached as Exhibit A to this Response. 2. Although some are relatively insigni?cant to the motion, the following are material: the two-week representation of Justice Jenkins ended before he took the oath of Of?ce and became a member of this Court; the undersigned counsel and law ?rm are representing Justice Jenkins in no other matters; (0) the terms of the representation of Justice Jenkins were the same as the terms for clients in other similar matters; the attorney who represented him is not the lead counsel in this case and has never been scheduled to present oral argument in this matter; the attorney who represented him, and who is a member Of no political party, has never contributed to any of his election campaigns nor has the ?rm?s PAC contributed to his judicial or any other judicial campaigns; Rule of the Code of Judicial Conduct does not warrant disquali?cation in the absence of simultaneous representation; and Rule of the Code of Judicial Conduct exempts from its application ?personal bias or prejudice concerning . . .a party?s lawyer?i under Rule except when the judge determines that such personal bias or prejudice exists. [Exhibit 3. Where, as in this matter, the representation has concluded, disquali?cation is not warranted.1 1 See, In re Disquali?cation of Reinhold, 152 Ohio St.3d 1221, 94 570 (2017)(denying disquali?cation motion where previous representation ended, as in this case, two weeks before disquali?cation motion); In re Disquali?cation of Morgan, 74 Ohio. St.3d 1223, 657 1335 (1990) (denying af?davit of disquali?cation because there was ?no ongoing attorney-client relationship between the judge and counsel? who represented the judge in a prior action)(emphasis supplied); In re Disquali?cation of DeWeese, 74 Ohio St.3d 1256, 657 1357 (1994)(denying af?davit when the cases in which the prosecutor's of?ce represented the judge had concluded); Fletcher v. Conoco Pipe Line 00., 323 F.3d 661 (8th Cir. 2003)(concluding that a situation involving the plaintiffs' former attorney, who was listed as a fact witness for trial, was a close friend of the judge and had previously represented the judge, did not require the judge to recuse); In re Disqualification of Morley, 74 Ohio St.3d 1265, 657 1363 (1994) (declining to adopt a rule requiring ?disquali?cation of a judge from a case where an attorney in the case previously represented the judge in an unrelated supplied); United States v. Zagari, 419 F.Supp. 494, 505?06 (N.D. Cal. 1976) (recusal not required where assistant US. attorney appearing in a Criminal case previously represented the judge); U.S. V. Prince, 618 F.3d 551, 561 (6th Cir. reasonable person would not question the judge's impartiality toward the defendant because a government witness was represented by an attorney who previously represented the judge in a prior unrelated supplied); Simprop Acquisition Co. J). L. Simpson Charitable Remainder Unitrust, 305 Ga. App. 564, 568, 699 860, 864 have seen no Georgia authority for the proposition that a judge previously represented by counsel in an unrelated matter must recuse himself from a case in which the same counsel represents a party now supplied); In re Metropolitan Metals, Inc., 206 BR. 89 (MD. Pa. 1996) (bankruptcy judge was not required to disqualify himself, even though attorney for Chapter 7 trustee in case before judge represented judge in unrelated bankruptcy case in which judge formerly acted as trustee prior to judge?s appointment to bench); Flamm, JUDICIAL DISQUALIFICATION, Section 8.5, at 210 (2d Eda 007) (?the possible appearance of bias arising from the fact of an attorney's former representation of a judge will typically be insuf?cient to warrant disquali?cation of the assigned supplied); Judicial Ethics Opinion 1999?3, 86 P.3d 663 (Oklahoma Judicial Ethics Advisory Panel is stated in the Federal Compendium of selected opinions, v. 41, paragraph that where there is no existing or continuing attorney/client relationship, recusal is not required because the attorney previously represented theJudgg. ?)(emphasis supplied). 2. WHEREFORE, Respondent, Antero Resources Corporation, respectfully submits that Appellants? Motion for Disquali?cation should be DENIED. Antero Resources Corporation By Counsel Va. Bar #2156 Richard M. Yurko ..Va Bar #4180 Lauren K. Turner, W. Va. Bar #11942 ?Amber M. Moore, W. Va. Bar #12341 3 Jason W. Turner, W. Va. Bar #12862 ?Steptoe 8: Johnson PLLC 400 White Oaks Boulevard Bridgeport, WV 26330 (304) 933-8000 Ancil G. Ramey, W. Va. Bar #3013 Steptoe &Johnson PLLC P.O. Box 2195 Huntington, WV 25722-2195 (304) 526-8133 Donald C. Sinclair II, W. Va. Bar #4295 Steptoe 8: Johnson PLLC 1233 Main Street, Suite 3000 Wheeling, WV 26003 (304) 233-0000 IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA DEBORAH ANDREWS, RODNEY ASHCRAFT, LINDSEY FEATHERS, ROBERT GOLDEN, DANIEL KJNNEY, SHARON KINNEY, CHARLES A. MAZER, CHARLES T. MAZER, DOUGLAS MAZER, SHAWN MAZER, SUSAN MAZER, GREGG MCWILLIAMS, DAVID SCOTT AND ROBERT SIDERS, EXHIBIT PETIT I ONERS, vs.) NO. 17-0126 ANTERO RESOURCES CORPORATION AND HALL DRILLING, LLC, RESPONDENTS. AFFIDAVIT STATE OF WEST VIRGINIA COUNTY OF CABELL I, Ancil G. Ramey, being duly sworn, state and affirm as follows: 1. I am an attorney licensed to practice law in West Virginia. 2. The purpose of this Af?davit is to refute factual inaccuracies in the Af?davit submitted in support of a disquali?cation motion in this appeal and to address the legal opinions in that Af?davit relative to the Code of Judicial Conduct. 3. I was retained to represent Evan Jenkins in State ex rel. King v. Warner, Supreme Court No. 18-0783 and SER Schwartz v. Justice, Supreme Court NO. 18?0789, prior to his taking the oath of Of?ce to serve as aJustice in this Court. 4. My two?week representation commenced on September 10, 2018, and concluded on September 24, 2018, when an order was entered by this Court dismissing those cases. 5. I have not been retained to represent Justice Jenkins in any other matters. 6. My representation in these matters was not undertaken on a pro bono basis. 7. I am not and have never been Managing Partner of the Huntington Of?ce or any other of?ce of the law ?rm of Steptoe 81 Johnson PLLC. 8. The identity of James W. Turner as the Managing Member of the Huntington Of?ce of Steptoe 8: Johnson PLLC appears on the ?rm?s public website. ohnson.com locations huntington?wv. 9. I have not contributed to any election campaign of Evan Jenkins. 10. I am not a member of any political party. 11. The Steptoe Johnson Good Government Fund has not and will not be contributing to the judicial election campaign of Evan Jenkins or any other judicial candidate for any other judicial of?ce. 12. The public website referenced in the Af?davit in support of the disquali?cation motion relative to campaign contributions erroneously aggregates contributions by the law ?rm of Steptoe Johnson LLP, which is una??iliated with Steptoe 8: Johnson PLLC, and those of the members of the two unaf?liated law ?rms,1 and the Steptoe Johnson Good Government Fund has never contributed to Evan Jenkins? campaigns for House of Representatives. 13. I am not lead counsel in this matter and I am not scheduled to participate in oral arguments in this case. 14. Lead counsel in this matter is W. Henry Lawrence who is scheduled to participate in oral argument. 15. My role in this case, as in many other cases, has been limited to assisting with appellate brie?ng and motions practice. 1 16. I do not recall meeting Evan Jenkins prior to my recently concluded representation of him and we do not have any personal or professional relationship other than relative to the two cases in which I recently represented him for a period of two weeks. 17. I have served as Counsel to the Judicial Hearing Board for a number of years. 18. The disquali?cation motion in this matter is governed by Rule 2.11 of the Code of Judicial Conduct. 19. Rule provides, 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 circumstances . . . The judge has a personal bias or prejudice concerning . . . a party's lawyer.? 20. Formal Opinion 07-449, attached to the Af?davit submitted in support of the disquali?cation motion in this matter, states: lawyer who is asked to represent a client before a judge and is simultaneously representing that judge in an unrelated matter may . . . undertake that representation . . . [Emphasis supplied] 21. First, this aspect of Formal Opinion applies to lawyers subject to the Rules of Professional Conduct, not to judges subject to the Code of Judicial Conduct. 22. Second, the very .title of . Formal Opinion 07-449 is CONCURRENTLY REPRESENTINGJUDGE AND LITIGANT BEFORE THE JUDGE IN UNRELATED [Emphasis supplied] . 23. Finally, neither I nor my ?rm currently represents Justice Jenkins in any matter. 24. Formal Opinion 07-449 further states: ?The Committee does not assume that, whenever a judge ?nds herself presiding over a matter in which a lawyer for one of the parties is concurrently representing herselfin another matter, she inevitably develops a personal bias or prejudice for or against her lawyer, triggering the mandatory and nonwaivable disquali?cation under Judicial Code Rule (1). [Emphasis supplied] 25. Rather, as noted in the Formal Opinion, ?When a judge reasonably concludes that she is not personally biased or prejudiced toward her lawyer, she may continue to preside over the matter as long as she complies with the remaining requirements of Judicial Code Rule 26. Moreover, as, noted, both the Formal ?Opinion and Rule are limited to where a lawyer is ?concurrently representing? the judge in another matter, which is not the case here. 27. The temporal discussion in the Formal Opinion referenced in the disquali?cation motion and supporting Af?davit is limited to where the judge has been previously disquali?ed by concurrent representation: ?Neither the Model Code of Judicial Conduct nor the Model Rules of Professional Conduct prescribe speci?c time periods, subsequent to a judge?s disquali?cation, within which a lawyer ought not to appear before the judge on behalf of a client.? [Emphasis supplied] 28. Here, there can be no appearance of bias or prejudice ?subsequent to a judge?s disquali?cation? relative to Justice Jenkins as a result of my ?concurrent representation? of him as he was not aJustice during my representation of him. 29. In other words, Justice Jenkins could not have been disquali?ed based upon my concurrent representation of him while he was serving as a judge. subject to the Code of Judicial Conduct because was not a judge subject to the Code of Judicial Conduct relative to its disquali?cation provisions. 30. Rule provides, judge subject. to disquali?cation under this Rule, other than for bias or prejudice under paragraph (A) (1), may disclose on the record the basis of the judge's disquali?cation and may ask the parties and their lawyers to consider, outside the presence of the judge and court personnel, whether to waive disquali?cation.? [Emphasis supplied] 31. Thus, on its face, it eXcludes from its application ?personal bias or prejudice concerning . . . a party?s lawyer? under Rule (1) except when the judge determines that such personal bias or prejudice exists; 32. Here, my two-week representation of Justice Jenkins which concluded before he became a member of this Court does not warrant his disquali?cation under Rule 2.11 or any other provision of the Code of Judicial Conduct. Further a?iant saith not. Taken, subscribed and sworn to before me on this 3rd day of October, 2018. My Commission expires: 17/25/ng [7 97(93 i ILCIA LSEAL 703;; 0&2/ 7 . NOTARYPUBLIC, STATEOFWESTVIRGINIA ISAA. RU EY Notary Public Steptoe 8. Johnson, PLLC 825 Third Avenue. Suite 4110 Huntington WV 25701 I i CERTIFICATE OF SERVICE I hereby certify that on* October 3, served the foregoing TO MOTION FOR upon counsel, by depositing true copies thereof in the United States mail, prepaid postage, in envelopes addressed as follows: Anthony]. Majestro Powell Majestro, PLLC 405 Capitol Street, Suite P-1200 Charleston, WV 25301 James C. Peterson Aaron L. Harrah Hill, Peterson, Carper, Bee 8: Deitzler 500 Tracy Way Charleston, WV 2531] Charles F. Speer Speer Law Firm, PA. 104 West 9th Street Suite 305 Kansas City, MO 64105 Richard H. Middleton 107 East Gordon Street Savannah, GA 31401 Christopher L. Hamb Craig S. Beeson Robinson McElwee PLLC PO. Box 1791 Charleston, WV 25326-1791 Stephen F. Gandee Robinson 8c McElwee PLLC PO. Box 128 Clarksburg, WV 26302-0128