By JOHN YODER
In the current economic slump, jobs probably matter more to the State of West Virginia than anything else. It is therefore understandable that a lot of rhetoric is expended on legislative policies to encourage job creation, at both the state and federal level.
What is lost in this debate, however, is that West Virginia's legal climate may have a far more negative impact upon job creation in the State than anything the Legislature may do.
Why is that? For several years in a row, West Virginia's legal system has been rated dead last, 50 out of 50 states, in terms of being anti-business. Forbes magazine has also rated West Virginia's legal system last in terms of business climate.
Defenders of the status quo in West Virginia, and there are many of them in the ranks of lawyers, claim that these ratings are inaccurate and unfair because the surveys are biased and conducted by business. What they ignore is that CNBC, part of the mainstream media, has also recently rated West Virginia's legal and regulatory climate as the least friendly of all the states towards business.
Further, these defenders of the status quo fail to acknowledge that it is businesses, and not trial lawyers, who create good paying jobs for most of the people. It does not really matter whether these ratings are fair or accurate, but it is the perception they create that matters. Perception can be reality.
If there is a perception in the business community, whether accurate or not, that the West Virginia court system is at the very bottom of all 50 states in terms of its fairness to business, then businesses will not want to locate in West Virginia. In addition, those businesses who are already here may want to leave for states perceived to be more business friendly.
This is where I differ with those who believe that the whole key to creating jobs is cutting taxes. As long as businesses perceive West Virginia as having the worst legal climate, it does not matter how much taxes are cut.
Businesses will not want to locate here where they do not feel they can get a fair shake in the legal system. Tax policy is very important for job creation, but a first and even higher priority should be given to changing the perception that our State's court system is anti-business.
There are many explanations for the negative perception. I personally think it is due, at least in part, to our partisan system of electing judges. West Virginia is one of only eight states that chooses its judges in partisan political elections.
When judges become politicians, subject to the popular political whim of the moment, they have more of a tendency to act as legislators, enacting social policy based upon the fads of the moment, rather than following the rule of law.
Judges, however, are not supposed to be legislators. They are supposed to follow the law, no matter how unpopular the law may be at the moment. We have all seen how popular opinion can change almost overnight. The war in Iraq was highly popular when former President Bush ordered the invasion of Iraq.
A few years later, President Bush was very unpopular, and candidate Barrack Obama, who ran on a platform of opposing the war was elected President. Now, President Obama, highly popular less than two years ago, has fallen out of favor with the majority of the people.
Businesses, however, like predictability. They do not want to invest in a state where their investments are subject to the political whim of the day, and where judges running for election may feel compelled to rule for the popular opinion as compared to following the law.
There is evidence that businesses consider predictability in the court system to be far more important than whether a court system is conservative or liberal.
That is understandable. If a business is going to invest $50 million in a state to create jobs, or even just a million or less, its investors want to know that the rules are not going to change based upon political whim. Predictability that the investment is safe is of prime importance when large amounts of capital are invested.
The West Virginia business community has advocated an intermediate court of appeals as one way of improving the predictability of court rulings. In any event, given the perception that our court system is unfair to business, we should not bury our heads in the sand and pretend there is no problem.
Rather than defending the status quo, we need to openly discuss and debate ways of changing the negative perception of our State's legal system, and then take even more proactive steps to bring about positive change. Otherwise, our citizens, including our children and grandchildren, will continue moving out of state to find good paying jobs.
Editor's Note: Yoder is a circuit judge in West Virginia's 23rd Judicial District, which consists of Morgan, Berkeley and Jefferson counties. He also is a Republican candidate for the state Supreme Court.
