THEIR VIEW: Will legal reform be addressed this year?
News Service Jan. 17, 2012, 8:33am
By RICHIE HEATH
CHARLESTON -- Will new year bring new legal reforms for West Virginia?
The new year brings with it another legislative session, and as state lawmakers begin to deal with a variety of issues facing our state, creating jobs and reducing unemployment will likely dominate the discussion.
A recent survey by West Virginia Citizens Against Lawsuit Abuse (WV CALA) shows that jobs and the economy is the most important issue for West Virginia voters, with 94 percent saying the issue is "very" important to them as a voter. Since 2012 is also an election year, it's a safe bet that our legislators will be looking to build voter support with a pro-jobs agenda.
To attract well-paying jobs, we must address some of the core problems in our legal system. An insufficient appeals process, abuse of power in the Attorney General's office, and excessive verdicts are currently just a few of the issues that give job providers pause when looking to invest in West Virginia.
West Virginia's current appeals process is perhaps one of the largest deterrents to job creation here. Over the last decade, two independent judicial reform commissions have recommended creating an intermediate appeals court. And significant job providers have cited the state's lack of an intermediate appeals court as a major problem which has already cost the state hundreds of jobs and millions of dollars in direct investment.
Appeals court legislation — which is supported by a majority of West Virginia voters — passed the Senate last year but died in the House of Delegates. As proposed, an intermediate appeals court would help ease the burden on our state Supreme Court, which is still one of the busiest appellate courts of its kind nationwide.
While the number of cases the West Virginia Supreme Court hears has declined in recent years, it still significantly outpaces the caseload of most other states without an intermediate appeals court. Only Nevada has a comparable appeals docket, and the Nevada Supreme Court is actively endorsing the creation of an intermediate appeals court for its state.
More importantly though, an intermediate appeals court would "complement and assist the Supreme Court of Appeals in performing the core functions of an appellate system" according to then-Governor Joe Manchin's Independent Commission on Judicial Reform. The court would increase the ability of our state judiciary to correct potential legal errors, and also help develop much-needed predictability and stability in our case law.
Lawmakers will also likely be forced — finally, after many years — to address Attorney General Darrell McGraw's questionable conduct in two recent state lawsuit settlements that were rejected by the federal courts just last year. In a failed scheme to avoid paying money owed to the federal government, Attorney General McGraw withheld state settlement funds from several plaintiff state agencies that he was supposed to be representing. As a result of McGraw's actions, West Virginia could lose millions in critical federal Medicaid funding for elderly and disabled citizens.
Attorney General McGraw's questionable ethics have gone unchecked for far too long. The National College of Virginia accused McGraw's office just last month of starting an "unlawful investigation," and a report by The Manhattan Institute's Center for Legal policy notes that Darrell McGraw has defiantly taken advantage of West Virginia's laws.
As budget discussions heat up, many legislators may find it difficult to allow the West Virginia Department of Health and Human Resources to pay for McGraw's misbehavior. An effort to rein in the Attorney General would send a strong message to job providers that nobody is above the law in West Virginia, not even the Attorney General.
The legislature should also look more closely at curbing some of the excessive verdicts which have given West Virginia an unfortunate reputation for "jackpot justice." Just one week after our state received national criticism for, among other things, its recent history of "stunning verdicts," West Virginia was again in the news for a jaw-dropping $58 million damages award. The verdict — the second to top the $50 million mark in a matter of months — raises serious questions about out-of-control punitive damages in West Virginia courts and whether our state can compete to attract needed jobs and investment.
A majority of West Virginians believe that the state's legal climate has a negative impact on job creation. By supporting these and other needed legal reform measures, state lawmakers can ensure that West Virginia starts the year on the right foot and moving in the right direction.
Heath is executive director of West Virginia Citizens Against Lawsuit Abuse.