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The West Virginia Record - "Perception of state judiciary tops second Supreme Court forum"

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Location: Charleston, WV

The West Virginia Record - "Perception of state judiciary tops second Supreme Court forum"

CHARLESTON - The perception of the West Virginia judicial system took center stage among the issues debated by the candidates for Supreme Court last Monday before a gathering of the state's independent insurance agents.

On Feb. 18, Chief Justice Spike Maynard, former Justice Margaret Workman, West Virginia University Law Professor Robert M. Bastress Jr. and Beth Walker had another opportunity to make an appeal to a professional organization why they should be elected, or re-elected, to one of the two Court seats in November. This time it was to the Independent Insurance Agents of West Virginia during their annual meeting.

Last month, the candidates spoke before WESPAC, the political action committee of the West Virginia State Medical Association during the Association's mid-winter meeting.

Last week's forum was simulcast on Metronews Talkline. Host Hoppy Kercheval, who served as the forum's moderator, kept the two-hour event lively by asking pointed questions of the candidates.

Among those questions was if they believed the state was a "judicial hellhole." For Bastress, the answer was an unequivocal no, and said the moniker serves as a "slander on our circuit judges."

"It's not a judicial hellhole, and I think that characterization really disserves the interests of the state," Bastress said.
Data, or more specifically the lack thereof, does not support such a characterization, Bastress said. According to a study conducted by WVU's public affairs center found that over the last 25 years the number of civil cases, excepting domestic relations cases, has remained "relatively flat."

Likewise, Bastress said the public affairs center, in conjunction with a visiting professor from Southern Methodist University, found data to be inconclusive as to the state being "out of whack" in terms of monetary awards in tort cases. Those findings are slated for release in an upcoming edition of the WVU Law Review.

"Those studies have concluded this hellhole characterization is simply false, and really distorts the debate," Bastress said.

For Walker, an employment law attorney with the Charleston law firm of Bowles, Rice, McDavid, Graff and Love, and the lone Republican in the race, said the debate over whether West Virginia is or isn't a judicial hellhole is irrelevant. Perception is reality, she said.

"Organizations who look very closely at these things have put that label on our judicial system," she said. "And going forward that's what we need to be concerned about."

Maynard concurred with Walker saying that the findings aren't being reported in "chopped liver publications."

"We're talking about publications like the Wall Street Journal, and publications such as Forbes magazine which rated us 49th or 50th to do business based on our judicial climate," Maynard said.

"They just don't pick this out of thin air," he added. "They are surveying lawyers mostly across the country who represent corporate clients."

Maynard cited two cases heard by the Court which contribute to the perception West Virginia judiciary makes things tough on businesses. First, was the West Virginia National Auto Insurance case in which the Court ruled that despite writing a bad check, a woman was deemed to have insurance coverage, thus putting the company on the hook for injuries she caused in an accident.

Second, was the Jefferds case that opened the door for out-of-state plaintiffs to file lawsuits in West Virginia. The decision, Maynard said, turned the mantra "open for business" on its head.

"We have lawsuits pending all over West Virginia with out-of-state plaintiffs who have never lived in West Virginia, never worked in West Virginia, never been to West Virginia and can't find West Virginia on a map, but they are litigating here in large numbers."

For Workman, the issue "obfuscates, rather than illuminates" the debate on the state's judiciary, and its impact on business development.

"The coining of that phrase, judicial hellhole, was a very unfortunate thing," Workman said. "It probably has created the perception that's what we are."

"I don't believe that's what we are," she added. "I have worked inside the court system, as I said for 18 years. I know the magistrates, I know the family court judges, the circuit judges, and you know, we're really pretty lucky. We have pretty good judges in this state all up and down the line."

To recuse or not to recuse

Also addressed during the debate was the issue of judicial integrity, specifically can a judge be impartial in a case when he or she has more than a mere acquaintance with a litigant. Kercheval didn't mince words in posing the question to Maynard in light of his decision to recuse himself in the Court's reconsideration of its ruling in the Caperton v. A.T. Massey Coal case only after pictures surfaced of Maynard together with Massey CEO Don Blakenship in Monaco in July 2006.

"Spike," Kercheval said, "I know you and Mr. Blankenship have been friends for a long time, but did it not occur to you when you were together in Monaco that your impartiality might reasonably be questioned?"

Because they are both from Mingo County, Maynard acknowledged a 30-year friendship with Blankenship. Though he admitted Blankenship "might not be the most popular guy in the world," Maynard "I don't throw my friends under the bus."

Because both West Virginia and Mingo County are small in terms of population, Maynard said not too many people can truly be called stangers. In fact, he said during his time as circuit judge, there was rarely a time when he heard a case that he didn't know at least one of the parties involved.

"That doesn't mean you can't be fair to them, and doesn't mean you can't do the right thing in the case," Mayard said.

For those who would question his impartiality, especially was it relates to Blakenship, Maynard said in the 16 cases that have come before the Court involving Massey, he's ruled in favor and against the company eight times each.

For Bastress, the issue isn't Maynard's friendship with Blankenship. Rather, the problem was with Maynard's "failure to disclose" the closeness of that friendship.

"It seems to me clear indication of a lack of judgment to be vacationing with a litigant who's corporation has a $50-60 million case sitting before the Court," Bastress said.

Though she declined to comment specifically on the matter involving Maynard and Blankenship, Workman said a judge can never go wrong in interpreting the Code of Judicial Ethics' rule on the appearance of impropriety too broadly.

Like Workman, Walker declined to comment on Maynard's decision to recuse himself from the Massey case only after intense publicity. However, the public should be slow to criticize a judge's decision to recuse or not recuse absent all the facts.

"It's incumbent on us in this election, as well in all Supreme Court elections, to elect justices that we can trust when they do know all those facts, when they do know what the situation is and they will make good sound judgments based on their own personal integrity on these kinds of issues."

Before moving onto another subject, Maynard added that he has never kept it a secret that he and Blankenship are friends. In fact, he said anytime they were both seen together in Charleston it would make the papers.

When Kercheval asked him if he wouldn't do anything differently in recusing himself from the Massey case knowing what he knows now, Maynard said he probably would.

"To be perfectly honest, yes," he said.

Absent from the debate was Huntington attorney Menis E. Ketchum. A sudden illness prevented his participation, Ketchum told The West Virginia Record.

Nevertheless, Ketchum says he's looking forward to participating in the next candidate's forum sponsored by the state Bar Association on Wednesday, March 19. It will start at 5:30 p.m., and again take place at the Charleston Marriott.

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