THEIR VIEW: Judicial reform: Merit selection over non-partisan election

By The West Virginia Record | Jan 19, 2009

BUNKER HILL -- Judicial reform is an extremely important issue for our state. One of our biggest impediments to job growth is the perception that our state's judiciary is the least impartial judiciary in the country.

By JONATHAN MILLER

BUNKER HILL -- Judicial reform is an extremely important issue for our state. One of our biggest impediments to job growth is the perception that our state's judiciary is the least impartial judiciary in the country.

Each year, the U.S. Chamber of Commerce asks the legal counsel of businesses nationwide which states have the least impartial judiciary. Year in and year out, West Virginia is ranked as having the least impartial judiciary.

What does it mean exactly to have the least impartial judiciary in the United States? It means that our judiciary is more likely to ignore the rule of law than anywhere else in the country. In other words, our judges are more likely to legislative from the bench or act unfairly, especially in cases where businesses are defending themselves against lawsuits from consumers.

This means one important thing for our economy: new and existing businesses are less likely to operate in West Virginia because their legal counsel advises them that our judicial system makes running a business in West Virginia more risky than in all other states.

Of course, this doesn't mean that we don't have any businesses coming here and that we don't have any job growth. Nor does it mean that we have no good judges in this state. It just means that we are putting ourselves at a competitive disadvantage with the rest of the nation by creating a perception of unfairness. Whether we like it or not, this is the perception and this perception must be changed.

Every year, we fail to maximize our job and business growth due to this perception of unfairness. By putting ourselves at this competitive disadvantage, we aren't growing our economy as strong or as fast as what we can or should. With how sluggish our economy has been for decades, we need to eliminate as many competitive disadvantages as possible. Our citizens suffer a tremendous disadvantage financially, socially, and personally over time due to our failure to maximize job and business growth.

Conversely, reforming our judicial system to make it more impartial doesn't mean that we will be letting businesses trample all over consumers. It means that we will level the playing field for both businesses and consumers by developing a judiciary that upholds the rule of law as close to 100 prtvrny as possible. In fact, the case can be made that we are hurting consumers more by not having a fair and impartial judiciary because our slower job and business growth minimizes their financial well being.

Nonetheless, how do we change this perception? That has been a debate for years now. It looks as if we may even vote on a judicial reform proposal before Gov. Joe Manchin's second term ends. He favors non-partisan election of judges for reforming our judiciary, as do most Republicans and the business community.

I, however, differ from my fellow Republicans and the business community. I believe that former state Senator and new Circuit Judge John Yoder and I are the only elected officials to support merit selection of judges.

We both see non-partisan as a weak reform that has the potential to backfire and worsen the perception of our judicial system. It may do this because voter participation will decrease in non-partisan elections while money spent on non-partisan judicial elections will be larger than what it is today, thus making the judiciary appear even more beholden to special interests than it appears now.

Merit selection of judges doesn't mean appointment by the Governor. It means that a committee is formed to make recommendations for judges based on a merit criteria established by statute.

We could make our merit selection process work in many different ways, but here are a few key points that I believe should be in the process:

1) The committee should be a local committee in each circuit, and we have a statewide committee for Supreme Court selections. The local committees can be elected or appointed. The state committee should be appointed by the Governor and confirmed by the Senate. One criterion for both local and statewide committee members should be equal number from both major political parties.

2) When selecting judges, the committees can either make a recommendation to the Governor and the Legislator based on merit criteria established in statute or the Governor can recommend people to the committees and the committee then decides which people best fit the merit criteria. All new selections should be confirmed by the Senate.

3) Judges should be term limited to two 12-year terms for Supreme Court and three eight-year terms for Circuit Judges. Upon the conclusion of each term, judges will face a retention vote. A retention vote is not a political campaign. It simply allows the voters to approve or disapprove of a judge's job performance.

No system is perfect and merit selection certainly isn't; however, it will help tremendously in changing the perception of our judicial system. A merit selection system will follow more closely than partisan or non-partisan election of judges a merit criterion for judges as well as remove the claim that "justice is for sale" due to large sums of money spent on judicial elections, thus enhancing the impartiality of our judges and eroding the appearance of unfairness.

The closer we can move to a perception of impartiality, the greater the number of jobs and businesses we will have in this state resulting in better lives' for our citizens.

Miller, a Republican, has served as a delegate for southern Berkeley County since being elected in 2006. Currently, Miller serves as a ranking member on the Health and Human Resources Committee in the capacity as Minority Vice-Chair.

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