SOUTH CHARLESTON – Punitive damage awards and the volume of cases heard by the state Supreme Court were among two of the issues discussed during a candidate forum last week.
All three candidates for Supreme Court -– Menis Ketchum, Beth Walker and Margaret Workman – were present during a forum sponsored by the South Charleston Chamber of Commerce on Oct. 6.
Though all three agreed on many issues, they differed on whether the court should automatically review all cases involving an award of punitive damages and if the Court is hearing too few or too many cases.
The question on automatic review of punitive damages was the first to be asked by forum moderator Kennie Bass, reporter for WCHS-TV8/WVAH FOX News 11. The question has been injected in to the race recently by a line of decisions rendered by the U.S. Supreme Court, culminating with the one involving the ExxonValdez, saying that lower courts should conduct through review of cases involving punitive damages.
For Ketchum, partner in the Huntington law firm of Greene, Ketchum, Bailey, Walker, Ferrell and Tweel said he would agree to hear any case involving punitive damages "no matter how large or how small."
"A $20 - $30,000 award is as important to you as a $400 million award to Massey Energy," he added.
Also, since there is only one appellate court in West Virginia for state cases, Ketchum said it has an obligation to follow rulings from the highest court in the land.
"If we're going to be a constitutional court, we're going to have to obey the court above us," he said.
Former justice Margaret Workman concurred with Ketchum saying, if elected, she, too, would agree to hear any and all punitive damage cases.
"I just think it's good policy," she said.
However, Beth Walker, with the Charleston law firm of Bowles, Rice, McDavid, Graff and Love, disagreed.
"I don't think that makes a lot of sense," she said.
Walker qualified her answer saying that the state Legislature should establish the threshold on which cases should be reviewed. Until then, she would vote to review punitive damage awards, but only if the award is "substantial."
"I think substantial punitive awards should be and must be reviewed by our Supreme Court," Walker said.
Later during the forum, the question was posed of the candidates if they endorsed a cap on punitive damages. Again, following the U.S. Supreme Court's ruling in Exxon Valdez, Ketchum said he's in favor of limiting punitive damages in direct proportion to compensatory damages.
However, both Workman and Walker said setting a cap on punitive damages is a legislative matter with Workman saying the courts should cap damages "only if it doesn't pass constitutional muster."
Her reason for deferring to the Legislature for defining caps, Walker said, is that the ExxonValdez case only applies to federal maritime law. That provoked a rebuttal from Ketchum who said, "There's not much difference from cases on the river and cases on the streets."
On the issue of caseload, Bass asked the candidates if they agreed with a recent story in The Sunday Gazette-Mail showing a sharp drop in the cases the Court has heard over the years. Included in the question was whether they support or oppose creation of an intermediate appellate court.
Workman said she was concerned about not only the drop in cases heard, but also written opinions. As she did when she was on the Court in the 1990s, Workman said an appellate court created to hear not all, but just workers' compensation cases would be a good idea.
"The quality of workers' compensation cases is abysmal," she said.
Though not opposed to a specialized workers' compensation court, Walker said the idea needs more study. The explosion in workers' compensation cases could be attributed to the privatization of the workers' compensation system.
"We should not over-react to a temporary situation," Walker said.
Also, Walker said an emphasis should be placed on the quality of the cases the Court hears and not the quantity, and deference should be given to the decision by the Court in recent years to take four months away from hearing cases.
"The term 'in vacation' [sine die] does not mean 'on vacation,'" Walker said.
However, Ketchum disagreed saying that the court taking Thanksgiving through the second week in January and the entire months of July and August off seems too much like a literal vacation. At most, justices should take between two to three weeks away from the bench a year.
Though he did not have an answer for the explosion in workers' compensation cases, he did say it was a "problem" and one that was not going to be solved by the Supreme Court alone.
"Five old people up there in robes can't sit there and hear 3,000 cases of back, leg and herniated disks."
Ketchum agreed with Workman that a specialized court, similar to one in Nevada, would be a good start in reducing the Court's workers' compensation load so as to devote to other cases. According to Ketchum the annual cost to run such a court would be $853,000.
"That's a lot of money, but how much is justice worth," Ketchum said.
One area of unanimity between the candidates came on the question of whether they agreed with the recent ruling in favor of the Associated Press' seeking of e-mails between Chief Justice Spike Maynard and Don Blakenship, CEO of Massey Energy.
Unless the communication is between a justice and a Court staffer, and relates to a case, Ketchum said the court, like any other state agency, should comply with Freedom of Information Act requests for e-mails.
Both Workman and Walker said, "I agree with Menis."
On Wednesday, Oct. 22, the candidates will meet one last time for a candidate forum prior to the Nov. 4 election. That forum will be at 8 p.m. on the campus of Shepherd University.