By PAUL T. FARRELL JR.
HUNTINGTON -- Our Bill of Rights is the foundation of the liberties we enjoy as American citizens. Americans celebrate their 1st Amendment rights of freedom of speech and freedom of religion and their 2nd Amendment right to bear arms, but what about their 7th Amendment rights?
It reads, "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States, according to the rules of common law."
There is one place in America where the average citizen is equal to the most powerful corporation -- in our courtrooms. Trial by jury ensures that all people are equal under the law, and corporations and government should not be allowed to violate these individual rights.
Thomas Jefferson wrote, "I consider [trial by jury] as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution." It is a sentiment echoed by former U. S. Supreme Court Chief Justice William Rehnquist, who was appointed to the Court by Richard Nixon and named Chief Justice by Ronald Reagan. "The right to trial by jury in civil cases at common law is fundamental to our history and jurisprudence. A right so fundamental and sacred to the citizens should be jealously guarded."
Yet today, in both our courtrooms and at the statehouse, there is an unprecedented attack on our 7th Amendment right to trial by jury. This attack is financed by billion-dollar industries and corporate special interest groups. They want immunity. They label every lawsuit as frivolous. They want the loser of a lawsuit to pay -- unless they are the loser. They want the court house doors locked with only special keys for special people.
Over the last few weeks, West Virginia GOP candidate Bill Maloney taken to the bully pulpit and joined in these attacks -- but he's not the first Republican candidate to do so.
In 2004, both GOP gubernatorial candidate Monty Warner and his brother Kris Warner, who was then chair of the West Virginia Republican Party, made the same pitch on the campaign trail. The Charleston Daily Mail reported in 2004 that Monty Warner said that West Virginia's "main problem [was] the state's unpredictable judiciary" and that the "Warner Plan" for the state was "stop[ping] lawsuit abuse" (Aug. 13, 2004). In an interview with the Dominion-Post, he said that "with a mandate from the people he can bring tort reform to West Virginia" that would "control civil lawsuits and the size of verdicts" (Aug. 19, 2004).
Kris Warner began advocating for limiting access to the courts even earlier. In 2002 he said that the state "needs tort reform to make businesses less subject to liability lawsuits" (Daily Mail – September 25, 2002).
But that was before the Warners were compelled to file a lawsuit because they believed they were the victims of misconduct. The Dominion-Post reported that the Warners' filed a lawsuit accusing Morgantown city officials of engaging "'in a conscience-shocking pattern and practice of harassment, intimidation, retaliation, and punishment' designed to hurt them financially." The brothers decided to file the suit to "protect their constitutional rights" (March 3, 2010). The Warners' case against the city of Morgantown is headed to trial next year.
What does Kris Warner say about the civil justice system now? "I wish [the trial] would happen next week. We need to have our day in court and have our story heard" (Charleston Gazette – July 14, 2011).
Many other West Virginians have found themselves in the same position as the Warners. They believe they were victims of misconduct or negligence and sought justice they only way they could -- in our courts in front of a jury of their peers.
Trial by jury is our birthright. It is the means by which we hold our government accountable. It ensures that all men and women are equal under the rule of law and entitled to a redress for wrongs done by others. U. S. Supreme Court Justice Hugo Black wrote in 1939, "It is essential that the right of trial by jury be scrupulously safeguarded as the bulwark of civil liberty. Our duty to preserve the 7th Amendment is a matter of high constitutional importance."
Like Maloney is doing now, Monty Warner once promised to limit access to the courts. Now he and his brothers are seeking the justice they once scorned. Here is a gentle reminder to the next GOP gubernatorial candidate: Be Careful What You Ask For.
Editor's Note: Farrell is president of the West Virginia Association for Justice.