Judge Says Merit Selection = “Marketing, Pure and Simple”
November 17, 2009
“Merit” selection schemes are “just marketing, pure and simple” and won’t produce better judges, says West Virginia Supreme Court Chief Justice Brent Benjamin in an interview with the West Virginia Record.
“Let people pick their judges. It makes sense. To paraphrase John F. Kennedy, a state afraid to let its people vote is a state afraid of its people. The notion that people can’t be trusted to have a say in government … that is really sad. Certainly elections can be tough, but I have confidence in people. Give them the information and believe in them….Part of a democracy is having a choice.”
In an era where many legal elites, such as former Supreme Court Justice Sandra Day O’Connor, believe the power to choose judges should be taken away from voters and handed over to lawyer-dominated tribunals, it’s refreshing to hear one of our public servants on the bench stand up for the rights of ordinary citizens.
U.S. Supreme Court Shouldn’t Overreach In Caperton v. Massey
February 23, 2009
The U.S. Supreme Court will hear oral arguments in Caperton v. Massey next week and editorial writers and columnists have been buzzing with coverage. (See here, here and here, for examples.)
Here are a few thoughts:
- This case is not about the constitutionality of judicial elections, and the Court shouldn’t have to address the issue in whatever decision it reaches. In fact, the Petitioners reinforce this point in their brief: “Judicial elections are a well-established and constitutionally permissible means of selecting state court judges, and it is certainly not the case that due process requires a judge to recuse himself every time a litigant or attorney contributed to or otherwise supported the judge’s election campaign.”
- This case is also not about the constitutionality of “527” organizations or limits on contributions to judicial campaigns.
- What is at issue is simply the standards for judicial recusal and whether these rise to a Constitutionally-protected level of due process in this one instance. Since the facts of this case are so extreme and unusual, this isn’t the case to issue a general ruling even in the narrow area of recusals.
- Constitutionalizing or federalizing the process of judicial recusals would just lead to endless litigation and “judge shopping” – both designed to influence the outcome of a case. As 10 current and former state supreme court justices (including two from Michigan) wrote in their brief, “Only in rare instances has this Court found that the Due Process Clause of the Fourteenth Amendment overcomes the strong presumption of judicial integrity.” Even the American Bar Association wrote that this case would already require recusal under its Model Code – meaning no additional standards are necessary.
- Perhaps the best and fairerst solution is offered in an amicus brief from seven states’ attorneys general. They write, “Reasonable minds can and will disagree about whether, on the particular facts presented, recusal would have been the better course. And in a way, that is precisely the point.” The states “are uniquely well-situated to regulate recusal practice in their own courts and (2) have been both vigorous and innovative in doing so.”
The U.S. Supreme Court should leave it up to the states to fashion their own recusal standards, just as they regulate most other aspects of their judicial systems. There’s no need to concoct a completely new, Federalized recusal system because of the unusual facts of an unusual case.
“Merit” Selection 2009 Preview
December 19, 2008
Earlier this week, the Associated Press ran an overview on West Virginia and other states that are considering changing the way judges are selected. (Hat tip: Judgesonmerit.) In West Virginia, Gov. Joe Manchin recently suggested replacing partisan elections with non-partisan elections, while there have been calls in Pennsylvania, Minnesota and Washington to adopt “merit” selection systems – where a committee controlled by lawyers meets in secret to pick judges, rather than voters.
Opponents of democratic judicial elections – such as Malia Reddick, research and program director for the American Judicature Society – say that “for merit selection to remain a legitimate option, I think there needs to be more openness and public involvement.” If “openness” and “public involvement” are critical factors in a “legitimate” judicial selection process, then only one system fits the bill: Democratic elections.
What Makes A Litigation Hellhole?
December 15, 2008
Jury consultant Robert Samples has an interesting piece in the West Virginia Record that dissects what characteristics typically earn a jurisdiction a designation as a judicial “hellhole” – like West Virginia (Hat tip: Point Of Law). (For a list of all the nation’s judicial hellholes, visit the American Tort Reform Association).
After studying legal environments all across America, Mr. Sample concludes that three main factors turn a jurisdiction into a hellhole:
- A liberal bench that tilts the playing field toward plaintiffs’ attorneys;
- Liberal lawmakers willing to block any effort to reform the legal system;
- A weak business community that leads to an “imbalance of power in the local legal system that favors plaintiffs and is biased against corporations.”
The good news is that litigation hellholes can be transformed into fair, predictable legal environments. Mr. Sample cites Texas and Mississippi, where “the business community and governments…decided to take action.” The bad news is that absent an active, engaged business community that is willing to take a stand – and sometimes take some heat – many courtrooms and jurisdictions will continue to be fully-owned subsidiaries of Trial Lawyers, Inc.
Case Study: Trial Lawyers, Inc. And West Virginia
November 4, 2008
In a new update of its invaluable Trial Lawyers, Inc. series, the Manhattan Institute lifts the rock on the unholy alliance between West Virginia’s Attorney General’s office and the state’s trial bar, and the devastating impact it has had on West Virginia’s economy. Legal Newsline has a summary and the full report can be found here. Among the report’s conclusions:
- There is an unholy alliance between the Attorney General’s office and the West Virginia trial bar.
According to the report, West Virginia Attorney General Darrell McGraw has turned his office into “a major division of Trial Lawyers, Inc.’s West Virginia operations.” Over the past three years alone, Mr. McGraw has hired trial lawyers to act as “special assistant attorneys general” in more than 25 cases.
In 2001, four trial lawyer firms hired by Attorney General McGraw raked in over $3 million in legal fees from a single settlement. “It was later reported that those same firms had given $47,500 to McGraw’s reelection campaigns.” No word yet on whether Justice at Stake will come out in favor of “merit” selection for Attorney General.
- Tort-friendly judges can turn states into “judicial hellholes.”
“West Virginia’s judges have repeatedly opened the state’s courthouse doors to plaintiffs’ lawyers from the nation at large” – using lax venue standards to allow out-of-state plaintiffs and defendants to sue out-of-state corporations. “Says circuit court judge Arthur Recht: ‘West Virginia was a ‘field of dreams’ for plaintiffs’ lawyers. We built it and they came.’”
“In 2006, the West Virginia supreme court of appeals ruled that out-of-state plaintiffs could sue an out-of-state manufacturer for injuries sustained out of state that were attributable to one of its products, so long as a West Virginia company had sold or distributed it. This decision was remarkable for the court’s brazen refusal to apply the statute that the West Virginia legislature enacted to rein in the courts.”
- No injury, no problem – at least in West Virginia.
“West Virginia is the only state in the nation in which plaintiffs who may have been exposed to dangerous substances can recover cash awards without showing that there was an actual injury.”
- Abusive litigation drives away business investment.
The report details the decision by Chesapeake Energy Corporation to abandon plans to build a $35 million regional headquarters in Charleston, WV after the state Supreme Court of Appeals decided not to review a $405 million verdict against the company – including $270 million in punitive damages. “A corporate spokesman called the court’s decision ‘stunning’ and noted that it ‘sends a profoundly negative message about the business climate in the state.’”
- Tort reform works.
In 2001 and 2003, the West Virginia legislature passed medical liability reform laws to deal with a medical liability crisis that was driving doctors out of the state and bankrupting insurers who wrote policies in West Virginia. By 2004, medical liability claims had fallen 69 percent from their highs. By 2005, insurance companies began lowering their premiums.
Hillbilly Heroin And The Unholy Alliance Between Trial Lawyers and State AGs
October 9, 2008
The West Virginia State Journal takes a long look at yet one more example of the unholy alliance between state Attorneys General and wealthy trial lawyers. Four years ago, West Virginia Attorney General Darrell McGraw agreed to a $10 million settlement in the state’s lawsuit against the maker of OxyContin – a painkiller so widely abused in the Mountaineer State it became known as Hillbilly Heroin. Mr. McGraw, a Democrat, is locked in a tough re-election campaign – and he’s facing an opponent that wants to know what happened to the $10 million.
That’s where the fun starts. Right off the bat, a one-third cut ($3.3 million) went to a handful of personal injury lawyers, including one run by the former Chairman of the West Virginia Democratic Party. Cozy contingency fee arrangements were outlawed in federal cases last year because of what Lisa Rickard of the Institute for Legal Reform called “the perverse incentive” of “combining the power of the government with the personal financial interest of some plaintiffs’ lawyers.”
What about the other two-thirds? That’s where it gets murky. In a normal lawsuit, the bulk of the settlement money would go to the clients – in this case three West Virginia state agencies. Yet two of the clients have yet to see a penny and the third has gotten a pittance. Instead, according to Steve Cohen of West Virginia Citizens Against Lawsuit Abuse, AG McGraw “basically converted the proceeds from the settlement into his own slush fund.”
The State Journal has asked Mr. McGraw’s office to provide a list of disbursements from this fund. So far, none has been forthcoming. The paper might be waiting a while.
“There’s six months (worth of disbursements) that for whatever reason somebody’s misplaced,” said the AG office’s comptroller.
Critics charge the funds are being used to further Mr. McGraw’s re-election bid. In the past, they paper notes:
the attorney general has used settlement money to buy television commercials featuring him. In one case, funds were used to pay for a fleet of “mobile offices” that had McGraw’s name emblazoned on the sides.
Here’s a case where a state’s legal system and attorney general’s office was abused to pad the pockets of trial lawyers and further the incumbent AGs re-election prospects.
Where are all those nonpartisan, good government groups when you need them?
West Virginia Legislator Gets It Half Right
September 22, 2008
West Virginia Democratic State Senator Jeff Kessler has got “merit” selection all figured out:
I’m inclined to believe that election is the best way. Judicial selection by (merit) committee is still politics – just a narrower group.
But Sen. Kessler, who chairs the state legislature’s Senate Judiciary Committee, is pushing for public financing of judicial races to end the “perception that [judges] are beholden to donors.”
A couple of points: First, public financing, like “merit” selection, is just another way to keep the people at arm’s length from the judicial selection process because it limits their ability to express their democratic preferences. Second, the “perception” about being “beholden to donors” is true for all public servants – so why is it OK for people to assume their congressmen, governors and state senators are “beholden”…but not judges? Third, the best way to end this “perception” that judges can’t be impartial is for judges to stop acting like politicians who routinely overturn elected legislatures to impose their own social, economic or political views and go back to their real job of interpreting the law.
WV Debates The Pros and Cons of Democratic Judicial Elections
September 10, 2008
West Virginia legislators gathered last weekend to listen to a panel discuss the pros and cons of democratic judicial elections. Chris Bonneau, assistant professor of political science at the University of Pittsburgh, effectively shot down the arguments typically made by proponents of abolishing democratic elections.
Don’t campaign contributions make it impossible for judges to be impartial? Professor Bonneau:
We have not found any systematic today that judges are voting differently because of campaign contributions.
Aren’t judges different from other politicians like governors or legislators? Professor Bonneau:
Judges are political actors. They are a different kind of political actor, but they are still political actors. They make political decisions every day.
It’s important to remember that our judiciary is not some autonomous tribunal that rests above public oversight and beyond public criticism. It is one of three co-equal branches of government – and like the executive and legislative branches, the judiciary must ultimately be accountable to the people. Democratic elections are the best way to ensure this accountability.
WSJ On State AGs
August 1, 2008
As usual, the Wall Street Journal stands head-and-shoulders above the journalistic crowd in reporting trial bar shenanigans. In a column today, Kimberley Strassel notes the practice of ambitious state Attorneys General like West Virginia’s Darrell McGraw, who file “questionable lawsuits against big companies, secretly doling out the legal work to outside trial lawyers friends who reap millions in fees.”
And of course, what goes around comes around. “Those lawyers then turn around and donate heavily to Mr. McGraw’s re-election.”
What is different today, Ms. Strassel reports, is that the public is beginning to take notice of this dirty practice. As a result, reform candidates are beginning to get traction. West Virginia’s AG is facing a spirited challenge from Dan Greear, who recently signed the model “Attorney General Transparency Code.” Other reform candidates are running strong in Indiana, Missouri and North Carolina.
West Virginia Wrestles With Junk Science In The Courtroom
June 24, 2008
West Virginia seems to be an annual fixture on the American Tort Reform Association’s list of Judicial Hellholes — and one of the reasons has been the widespread dissemination of junk science in the state’s courtrooms. An article in the West Virginia Record chronicles some of the worst junk science abuses and suggests a possible solution.