Published: January 06, 2008 01:58 am      

‘Judicial hellhole’ label challenged

Chafin, trial lawyers group fighting back

SOUTH CHARLESTON — Changes in West Virginia’s business, property and income taxes would do more to grow the state’s economy than bowing to unsubstantiated claims about the state’s civil tort system being a “judicial hellhole,” Senate Majority Leader Truman Chafin believes.

“It’s the tax system, not necessarily the tort system,” said Chafin, D-Mingo, and a key member of the Senate Judiciary and Finance committees.

“When I came to the Senate in 1983, we were probably 13th or 14th nationally on the personal income tax list,” he said.

“Now, the income tax is the No. 1 revenue producer (for the state),” he said.

People are moving to states like Tennessee and Florida, which do not have personal income taxes, Chafin said.

Steve Roberts, president of the state Chamber of Commerce, said he personally “blanches” when he hears the “judicial hellhole” label applied to the state’s legal system in national rankings.

Chafin and Roberts appeared on a panel Friday to discuss whether the state’s legal climate hurts economic development. The “2008 Legislative Lookahead” forum in South Charleston was sponsored by the state Associated Press.

The legal climate is one of things that businesses take into account when they consider locating in the state, Roberts said.

The chamber is pushing for caps on punitive damages in this session of the Legislature, he said.

“Most other states have enacted limits on punitive damages,” he said. “West Virginia is out of step,” with the rest of the nation in that area and others, he said.

The chamber also would like to see the state adopt a non-partisan system of electing judges.

The state constitution calls for the election of judges, Roberts said.

What the chamber wants would not require a constitutional amendment, he said. Judges would simply not be able to run as members of any party, he indicated.

In 1929, “the state Democratic Party platform called for the non-partisan election of the judiciary in the state,” Roberts said.

“However, at that time, the five justices of the West Virginia Supreme Court were Republicans,” and the proposal went nowhere, he said.

Chafin said he opposes electing judges on a non-partisan basis.

“I think it favors business and corporate people who want to have certain people on the court. I trust the people with their choices. I don’t see that being passed,” by the Legislature, he said.

Asked about the potential for conflict-of-interest associated with lawyers’ campaign donations to judges, Chafin said “as long as they (contributions) are disclosed and they are public and there are safeguards and codes,” he doesn’t have a problem with it.

Lawyers have a large stake in electing impartial and fair judges, he noted.

Referring to changes in the state’s tort system sought over the years by its business community, the state and national Chambers of Commerce and other interest groups, like the state’s medical and medical education community, Chafin, who is also a lawyer, said he was one of the few to vote against medical malpractice reforms a few years ago.

One of the changes capped awards in negligence cases against doctors and hospitals.

“And you know, a lot of senators are telling me now, ‘Chafin, you were right. You know a child’s life is worth more than $250,000,’” he said.

Chafin said the “judicial hellhole” description fostered by business climate rankings in Forbes Magazine and the national Chamber of Commerce “really hurts” the perception of the state.

Proponents of the claim cannot back it up, he said. They cite case filings but don’t consider how many so-called “frivolous suits” are later dismissed.

Rule 11 in the state’s case rules prevents frivolous lawsuits, Chafin said.

And although it is an informal cap, the U.S. Supreme Court has found that a proper ratio of punitive damages to actual damages should only be about 10-1, something that state courts must follow, Chafin said.

Steve Cohen, director of West Virginia Citizens Against Lawsuit Abuse, and Teresa C. Toriseva, a Wheeling lawyer who is president of the West Virginia Association for Justice, a trial lawyers group, were also on the panel.

Toriseva also opposes non-partisan election of judges.

“You cannot remove politics from the process. And why do you want to? This is a democracy. Businesses contribute heavily to judicial campaigns. It’s part of the process,” she said.

The “judicial hellhole” label is used by a group known as the American Tort Reform Association. The group is sponsored by the national chamber and other business interests, she said.

The label is a lie and propaganda, Toriseva said.

“All we have is anecdotal stories ... but the scientific data to back up the claim doesn’t exist,” she said.

She cited a recent study that shows the number of civil cases filed in the state’s courts dropped by nearly 10 percent between 1984 and 2005.

The state only ranks 46th among the states for cases filed per capita, the study by Profs. Richard Brisbin and John Kilwein shows.

And while the state does take action on measures backed by the American Tort Reform Association and business interests, a study by her own association shows the state’s ranking keeps getting worse, Toriseva noted. In a handout she released before the forum, the state Association for Justice found that:

“In 2002, West Virginia wasn’t listed in the (ATRA) hellhole report. The state’s rankings for the following years were sixth in 2003, fourth in 2004, third in 2005 and first in 2006.”

The rise in rankings came after lawmakers approved caps on medical malpractice damages, eliminated third-party bad faith suits, privatized Workers Compensation and made changes in the area of joint and several liability.

Business interests want to “take away the jury system, take away the election of judges ... They’re trying to limit people’s rights to be American.”

E-mail Bill Byrd at bbyrd@timeswv.com