WEST VIRGINIA RECORD

CHARLESTON - "Has the law forgotten you and me?"

West Virginia Supreme Court Justice Brent Benjamin posed the question to a group of lawyers from across the mountain state gathered at a luncheon sponsored by Legal Aid of West Virginia.

He was speaking on the topic of justice – what it means to him and how its definition has changed.

"Justice is something near and dear to all Americans, but when pressed to define what justice is, I'm sure it's different to all of us," Benjamin said during his hour-long speech Tuesday at Summit Conference Center.

To Benjamin, the word is something rooted in law. When he speaks of justice, he thinks of legal justice, he said.

But to many in today's world, the word's definition is quite different. Many today associate the word with the outcome of a lawsuit, he said.

"The concept of justice is if it benefits me, then that was justice," Benjamin said of how others interpret the word.

However, when the Founding Fathers settled our country and began to establish laws, justice was what set America apart from all other nations, Benjamin said.

The word carried with it the God-given rights of all individuals – not the state's rights, etc, he said.

"No individual stood before any other individual," he said. "It was the purpose of our collaborative law to protect the rights of an individual."

Since that time more than 200 years ago, the concept of justice has changed dramatically.

"Today justice is something that must be purchased," Benjamin said. "The loudest, shrillest voices now moderate justice – not the rights of the individuals. Have we forgotten individuals?"

Judges and courts should remember they are the non-political branch of government. They are charged with the task of dealing with the law – nothing more, nothing less, Benjamin said.

"I believe we risk too much to let our concept of justice yield to anything other than law and individual rights," he said.

A majority of people have unmet civil needs, and Benjamin would like to see those met.

"I'm not talking about asbestos litigation; I'm talking about divorce, child custody," he said. "The system isn't there to help them."

Money, fear and a lack of education could be a few of the things preventing needy people from getting the legal help they need.

In order to address these problems, many states have implemented programs that enhance people's access to justice, Benjamin said.

An access to justice program could also help the needy in West Virginia with their problems, he said.

"We have to talk about access itself," he said. "We will take baby steps to move forward."

Improving access to justice is one of the things Benjamin said he plans to concentrate on in his upcoming year as chief justice of the West Virginia Supreme Court of Appeals.

He also hopes to concentrate on the needs of low income and moderate income people, on lawyer advertising and on lawyer certification and specialization, he said after his speech.

Benjamin also spoke near the end of his speech of the justice system in West Virginia and some of the criticisms it has received.

Discretionary appeals is a hot topic and one of the criticisms the Supreme Court constantly faces.

West Virginia has a trial court and Supreme Court. Any cases that are appealed in trial court go directly to Supreme Court.

Before they are heard, all appeals are reviewed by the five Supreme Court justices. If only one decides the case should be heard, it will be put on the docket and attorneys have the chance to argue before the justices.

But if all agree a case is not worth hearing, it is thrown out.

This system has been criticized because some states have a mandatory appellate system – a court in between trial and Supreme Court that hears all appealed cases.

Benjamin thinks West Virginia's system works well. Justices have a variety of opinions, and if a case is thrown out, it probably should not have been heard, he said.

A middle level appellate court, which some would like to see the state acquire, would add expense and time limits which are currently not available, Benjamin said.

Additional facilities and additional staff would be required to run the court.

That does not mean he is against an appellate court, though.

"I wish we could have them, but they're not our call," he said. "It is not something which I think could be decided easily."

Another of the criticisms the Supreme Court constantly hears is that it is not working hard enough.

To dispute this argument, Benjamin presented facts.

In 2007, the Supreme Court heard 3,954 matters. That is up from 1,159 25 years ago, he said.

It averages 3,500 cases per year and was ranked the number one court in the country without an intermediate appellate court, according to the National Center for State Courts, he said.

"I would say we work hard," he said.