The Times West Virginian

October 14, 2012

W.Va. high court hopefuls mindful of critics

By Lawrence Messina
Associated Press

CHARLESTON — The four candidates for two seats on West Virginia’s Supreme Court differ on how to respond to criticism of the state’s judicial system from some business groups and others, each told The Associated Press.

Justice Robin Davis, the sole incumbent running, believes West Virginia’s sole appeals court has improved greatly since she was first elected in 1996. Her fellow Democrat, recent State Bar President Tish Chafin, has proposed ways to make judicial officials more accountable.

Among the Republican nominees, Circuit Judge John Yoder advocates nonpartisan elections and an intermediate appeals court to address concerns. The GOP’s Allen Loughry, a longtime Supreme Court law clerk, fears the judiciary is haunted by a legacy of West Virginia political corruption he chronicled in a recent book.

What voters decide in November will have a lasting impact on the Supreme Court, which is comprised of five justices. Both seats on the ballot are up for a full, 12-year term.

Davis argued the court has answered its critics, particularly within the last several years. She cited the domestic violence registry and the database tracking child abuse and neglect cases, initiatives she credits from her time as chief justice. She said the recent opening of a special court in Martinsburg devoted to resolving business disputes is the latest attempt to be responsive.

But Davis considers the 2010 revamping of the rules for handling appeals the court’s most momentous change. A pair of large jury verdicts last decade against corporations, upheld without written decisions, helped fuel complaints from the U.S. Chamber of Commerce and others that parties could not pursue full and fair appeals in West Virginia. Among other changes, the revised rules require a written opinion explaining the court’s ruling on every appeal.

Davis believes voters have noticed the court’s efforts.

“They’re very pleased with the approach our court is taking,” Davis said. “We’ve made it very clear that we are a very fair court, that we don’t have any hidden agendas. We simply follow the rule of law.”

Chafin hopes the court, and legislators, assess how the revamped rules have performed before deciding whether to revisit them or go farther to ensure fairness. But Chafin’s main focus has been to safeguard against conflicts of interest among the judiciary. Chafin has proposed a new process for deciding when recusal is necessary, and calls for greater disclosure of communications between judges or justices and parties in a pending case.

But Chafin also believes some of the complaints about the courts have been unfair.

“The feedback that I get is, people like and trust their local court system,” Chafin said. “When you talk more broadly, about the courts in general, when you talk about the faceless court system, that’s where the perception comes in.”

Yoder, a judge in the Eastern Panhandle, agreed the perception is partly unfair but said “we have to pay more attention to that perception and address it, because it affects whether businesses come to this state and create jobs.”

Concluding that the revamped rules fall short, Yoder echoed calls from the U.S. Chamber and others for an intermediate appeals court. He also believes that if West Virginia sticks with judicial elections, it should make them nonpartisan. But he also cited the Democrats’ current four-justice majority on the court.

“If we had another Republican, at least one other Republican, then there would be more of a perception that it’s balanced and not too liberal,” Yoder said. “There are decisions that are political and inconsistent. I think it’s been getting better. I still think there’s a lot of room for improvement.”

Loughry said voters hold an unfavorable view of West Virginia elected officials generally, but such a view is unfair to many who seek office in the state. But Loughry also believes that corruption persists.

“I understand why people are frustrated with our political system. The perceptions of people quickly become a reality until we can change those perceptions,” he said. “How a judge interprets the law is critically important to people’s lives, and when people do not have confidence in the system, it is seen as just another political branch of government.”