CALA takes longer look at state Supreme Court voting blocs

By Chris Dickerson | Jul 30, 2015

CHARLESTON – Another second batch of research from a legal reform group shows a trio of current state Supreme Court justices have been voting similarly for the past six years.

West Virginia Citizens Against Lawsuit Abuse previously issued data showing Justices Robin Jean Davis, Margaret Workman and Brent Benjamin have voted most alike in non-unanimous decisions since the Spring 2013 term.

New data compiled by WV CALA shows that has been the case among current justices since Spring 2009 as well.

“This research shows a longstanding shared point-of-view among Justices Davis, Workman and Benjamin,” WV CALA Executive Director Roman Stauffer said. “When there was disagreement between members of the state’s highest court, more often than not these three justices took the same side.”

It should be noted that the percentage of cases that are not unanimous each term is small. For example, in the just completed Spring 2015 term, the five justices issued 527 decisions and opinions. Of those, 31 of them (or 5.9 percent) were not unanimous.

In three of the four terms in 2010 and 2009, the percentages are slightly higher because that was before changes to the court’s rules of procedure took effect. In those terms, there were fewer opinions issued because the court issued fewer memorandum decisions. Thus, the percentages are typically higher.

For example, there were 65 opinions issued in the Fall 2010 term, and eight of them (12.3 percent) were not unanimous. However, in the Spring 2009 term, there were 93 opinions issued, and all of them were unanimous.

According to WV CALA’s data on split decisions from 2009 to 2012, Davis and former Justice Thomas McHugh were most likely to join together in non-unanimous decisions. Also, Workman and Benjamin agreed with Davis 60 percent of the time.

Davis and McHugh voted together 78 percent of the time. Davis and Workman joined opinions 65 percent of the time. Davis and Benjamin agreed 60 percent of the time. Davis and Ketchum joined opinions 34 percent of the time.

The Supreme Court terms covered during this portion of the research were from the Court’s Spring 2009 Term, when Justices Ketchum and Workman joined the Court, through the Fall 2012 Term, the last term before Justice Allen Loughry joined the court.

“WV CALA believes West Virginians deserve to know the judicial philosophies and alliances among members of our state’s highest court,” Stauffer said. “We will continue to share information about this with our grassroots members and the public.”

Stauffer said his group has focused its research on how other justices have voted with Davis because “she is the liberal leader of the court.”

“When you juxtapose that with her recent ethical lapses, we think it’s good for West Virginians to see how our other justices vote in comparison to her,” Stauffer said. “As for Justice Benjamin, it’s clear he has supported Davis in a majority of non-unanimous decisions in recent years, and that has been surprising to us.”

WV CALA has been critical of Davis in recent months, most notably for her failure to recuse herself from a case involving a law firm that purchased a Lear Jet from her husband’s firm. And recently, the group has been critical of the state Judicial Investigation Commission dismissal of a complaint against Davis regarding her refusal to recuse herself.

And last week, WV CALA urged lawmakers to investigate the JIC after learning a member of the panel has been a donor to Davis’ re-election campaigns.

As for the research on decisions, Stauffer said it is important for residents to see.

“This extended look at decisions will give us much broader and historical picture,” he said. “West Virginians deserve to know this information.”

In its previous report, WV CALA examined non-unanimous decisions since the Spring 2013 term.

During that timeframe, Davis and Workman voted together 68 percent of the time, Davis and Benjamin joined opinions 58 percent of the time, Davis and Ketchum agreed 46 percent of the time, and Davis and Justice Allen Loughry joined opinions 38 percent of the time.

Stauffer said his group has seen several opinions in recent years that have raised concern.

“In one recent opinion, for example, the Court permitted drug abusers to sue pharmacies based on claims that pharmacies had responsibility for the drug abusers’ problems," he said. "Decisions such as these take our state backward after our Legislature took action to fight lawsuit abuse in the last legislative session.

"WV CALA will continue to educate West Virginians to help them decide if the judicial philosophy of those on the court reflects their own views."

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