THEIR VIEW: Personal attacks aimed at protecting profits, not justice

By The West Virginia Record | May 18, 2011

By RICHIE HEATH

CHARLESTON -- As head of the West Virginia Association for Justice (WVAJ) — the official name of West Virginia's personal injury lawyers — Michael Romano continues to do his best to demagogue the issue of appeals court legislation.

In an attempt to make his case against legal reform, Romano relies more on vicious personal attacks and rants than on the merits of the issues at hand. He calls supporters of an intermediate court of appeals "whiners," and blames his organization's same old bogeymen for stirring up unnecessary debate about the need for an intermediate appeals court in West Virginia. His claims are disingenuous to say the least.

The WVAJ's take on appeals court legislation is troubling on several fronts. The organization attempts to dismiss any support for appeals court legislation, while ignoring the personal injury lawyers' own financial interests in opposing the legislation. For years, the personal injury lawsuit industry has benefited from West Virginia's restrictive appeals process, which has been used to extort lucrative legal settlements from job providers who have no guarantee that a bad lower court decision will ever be reheard on the merits of the case. They seem to want to defend at all costs West Virginia's broken legal system to line their own pockets. As a result, employers are leaving the state and taking jobs with them to more hospitable legal climates.

While Romano directs his venom at West Virginia Citizens Against Lawsuit Abuse — a locally incorporated, nonprofit grassroots legal watchdog group with more than 30,000 members located in every county of the state — and me personally, he ignores both the facts of the issue and the overwhelming support for creation of an intermediate appeals court.

During his time as governor, Senator Joe Manchin created the judicial reform commission that recommended an intermediate appeals court for our state. Manchin's bi-partisan Independent Commission on Judicial Reform was comprised of an impressive list of members, including, but not limited to retired United States Supreme Court Justice Sandra Day O'Connor, former United States Senator Carte Goodwin, former West Virginia Supreme Court Justice John F. McCuskey, former Kanawha County Circuit Judge A. Andrew McQueen, and Dean of the WVU College of Law Joyce McConnell.

In his effort to defend West Virginia's insufficient appeals process, Romano accuses me of either not understanding or caring about the law, citing the existence of an automatic right of appeal in the state "for more than a century." I am apparently joined in my ignorance or indifference by a former United States Supreme Court Justice and other noted legal scholars, as members of the judicial reform commission found unequivocally that West Virginia "maintains a completely discretionary docket, with no appeal as of right."

Before that, the Supreme Court's Commission on the Future of the West Virginia Judicial System wrote that "an intermediate appellate court will provide greater access to litigants" and should be created to "guarantee one appeal-of-right" for West Virginians.

Appeals court legislation also has significant support among state lawmakers. Legislation creating an intermediate court of appeals was sponsored by more than twenty state senators, and acting Senate President Jeff Kessler has been a major proponent of the reform measure. Acting Governor Earl Ray Tomblin has also expressed his support. Perhaps most importantly, a majority of West Virginians support the creation of an intermediate appeals court.

The facts outweigh Romano's outrageous rhetoric. Arguments of delay and excessive costs are simply unfounded. Assuming even the most liberal estimates, annual costs for an intermediate appeals court would amount to less than one quarter of one percent of the state's whopping $11.4 billion budget. That's a small price compared to the millions in investment and new jobs that appeals court legislation would likely attract.

The creation of an intermediate appeals court just makes good sense for the state, as many legal experts and government leaders have pointed out.

The WVAJ mistakenly ties the need for an intermediate appeals court to overall population, rather than increases in court caseloads. Statistics show that three states with caseloads smaller than West Virginia have created intermediate appellate courts over the last decade. Need justifies the expense of creating such a court.

As the Independent Commission on Judicial Reform found, "by virtually any measure, the Supreme Court of Appeals [of West Virginia] is one of the busiest state appellate courts in the entire country." Its caseload has more than doubled over the last twenty-five years. And the West Virginia Supreme Court admits that "[n]o other comparable appellate court in the country handles as many cases."

While Romano cites a slight decline of appeals in 2009, the Supreme Court's own statistical report acknowledges that the number of appeals "nevertheless remains high." His organization cannot dispute that the recently revised Rules of Appellate Procedure which they support will drastically increase the workload of our lone appellate court. Civil appeals make up the largest portion of the Supreme Court's docket behind workers' compensation cases.

An intermediate appeals court would help ease the current burden on our state Supreme Court, allowing justices to focus more on important or novel legal issues. It would also increase the number of written opinions that can be cited as precedent — an important evolution that would expand the core functions of our state appellate system by developing current case law.

In his arguments against appeals court legislation, Romano ultimately ends up talking out of both sides of his mouth. On the one hand, he argues that an already existing right of appeal and declining appellate caseload make the need for such a reform measure unnecessary. On the other hand, Romano claims that an intermediate appeals court with corresponding right of appeal would create a flood of appeals that will cause years of delay. So which one is it?

The creation of an intermediate appeals court is not about denying justice to anyone. To the contrary, it is about ensuring justice by making sure that judges and juries get it right. That is a fundamental part of our legal system.

But the WVAJ isn't about to let facts get in the way of its argument. They seem so concerned that unfair lower court results may be reviewed, that they will resort to fear-mongering in an effort to win their case. Romano argues that the creation of an intermediate appeals court with corresponding right of appeal would encourage a flood of convicted criminals to seek a second "free shot" in court.

Romano's argument is fantasy, as no legislative proposal calls for "two automatic chances" of which he complains. It is also more than a bit ironic that an organization that cloaks itself in "justice," would seek to deny litigants the fundamental right of appeal. Perhaps the example of Davie Hurt, whose wrongful conviction was just recently reversed after "more than a decade of trials, appeals and hearings," will serve as a sobering reminder for Romano's organization that justice denied is much worse than justice delayed.

Heath is executive director of West Virginia Citizens Against Lawsuit Abuse.

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