Benjamin

Starcher

CHARLESTON – On Brent Benjamin's last Friday before taking charge as chief justice of a West Virginia Supreme Court of Appeals, he sounded an echo from the old Court by deploring a dissent from Justice Larry Starcher.

Benjamin couldn't ignore Starcher's parting shot that the court would do "whatever it takes to protect doctors and lawyers from malpractice claims."

Benjamin delivered a concurring opinion on Jan. 9 in Forshey v. Jackson, a decision that enforced an absolute ten year limit on medical malpractice claims.

"I choose to write separately to respond to allegations in the dissenting opinion that this court has, in this case, rendered an inconsistent and result driven opinion," he wrote.

He wrote that Starcher considered the opinion inconsistent with a case from earlier in the term, Rashid v. Tarakji.

"First, the facts and law upon which our decision in Rashid v. Tarakji was based are distinctly different from those involved in the instant case," Benjamin wrote. "Furthermore, the majority's resolution of this case follows this Court's history of strictly adhering to statutes of limitation and repose."

He added that although he considered the opinions consistent, he wished to point out that the jurists who decided the cases differed significantly.

Chief Justice Spike Maynard, Starcher, and temporary Justices Jennifer Bailey-Walker and L. D. Egnor decided Rashid, he wrote.

Maynard, Starcher, Justice Robin Davis, temporary Judge Paul M. Blake Jr. and Benjamin decided Forshey, he wrote.

In the absence of continuity on the Court, he wrote, an assertion that the Court would do whatever it took to protect doctors and lawyers was "a disingenuous claim."

Benjamin did a little dissenting of his own, claiming that five new opinions tipped a balance from property taxpayers to assessors.

Previous decisions conflicted, he wrote. Some required clear and convincing evidence from taxpayers and others required preponderance of evidence, a lower standard.

The majority resolved the conflict in favor of clear and convincing evidence, he wrote, but they should have favored preponderance.

He wrote that the only rationale for a higher burden on the taxpayer was an apparent presumption that property valuations are correct.

"I fail to see why such a presumption compels a burden of proof on a taxpayer which is onerous and which is much more difficult to meet than that which applies to the state," he wrote.

If policy considerations dictate a more stringent burden than preponderance, he wrote, that should be left to the Legislature.

"Absent such legislative action, there should be no disparity in burdens between the state and its citizens in matters such as this," he wrote.

He tossed another hot potato to legislators, urging them to consider whether "arcane residency requirements" like Huntington's are appropriate in a modern era.

"Although I personally favor the freedom of the City of Huntington's workers to live where they choose to live, I must acknowledge that my personal policy preference is not supported by the law," he wrote.

"I observe, however, that residency requirements may pose the potential for municipal liability when used as a political weapon to retaliate against municipal police and firefighter groups."

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