Justices Add Fuel to the Fire

From the Charleston Daily Mail July 3, 2003, Thursday
Copyright 2003 Charleston Newspapers

Two state Supreme Court justices laid the blame for some of West Virginia’s economic woes at the feet of their colleagues in a dissent that accused the court of issuing decisions that destroy “the possibility of attracting new businesses and new jobs to West Virginia.”

Business groups and tort reform advocates said the dissent, issued Wednesday by Justices Spike Maynard and Robin Davis, was a rare example of members of the court using a decision to lend credence to claims that West Virginia’s courts are a hellish place for big business.

“What are we really destroying here?” Maynard wrote in the dissent. “Make no mistake, what is crippled is not just the financial well-being of a few companies doing business in West Virginia, but also scarce West Virginia jobs.”

The dissent comes as business and labor groups are organizing to fight over the makeup of the state Supreme Court. Justice Warren McGraw, a union-friendly justice whose decisions have been criticized by business groups, is running for re-election next year.

“We think that the election coming up is perhaps the most important election in the next cycle,” said Steve White of the Affiliated Construction Trades Foundation. “People from the business community, and people like Spike Maynard and Robin Davis, are gunning for Warren McGraw because he represents small business and workers, while they represent big businesses.”

House Speaker Bob Kiss, a conservative Democrat, has indicated he may challenge McGraw next year.

“The Supreme Court next year may be far more important than the governor,” Kiss said on a radio talk show Wednesday.

Business groups complain that the court’s current composition has helped foster a system in which massive asbestos trials can flourish and controversial medical monitoring lawsuits are permitted.

People who claim they have been exposed to a harmful substance can use medical monitoring lawsuits to demand that corporations pay for lifetime medical testing – even if they can’t prove that the exposure made them sick.

“West Virginia needs fair courts, West Virginia needs balanced courts,” said Steve Roberts of the West Virginia Chamber of Commerce. “The employer community in West Virginia believes there is a bias on the court against the people who provide the jobs that our state needs.”

Complaints of bias have registered on a national scale, according to a poll put out by the U.S. Chamber. The poll of corporations ranked the state as the second-worst place to get sued, just above Mississippi.

“We have a reputation now,” said George Carenbauer, one of the heads of the West Virginia Alliance for Civil Justice Reform. “To a certain extent, we’re uncomfortable talking about the reputation because we don’t want to aggravate the situation, but it’s very serious.”

Carenbauer said Wednesday’s dissent “is an alarm for us to get to the bottom of the issue.”

The dissent came in a case that asked the state Supreme Court to decide whether large, self-insured corporations would have to pay to help the Workers’ Compensation Division manage its debt.

In a 3-2 vote, the Supreme Court upheld the charges over objections from Weirton Steel and two Peabody Coal subsidiaries. McGraw, Chief Justice Larry Starcher and Justice Joseph Albright voted for the decision, which kept the system’s debt from growing even further. A loss could have forced the division to issue millions of dollars in refunds.

But the majority’s decision also allowed the state to impose a new, destructive tax on business, Maynard wrote in the dissent.

The dissent pointed out that one of the Peabody subsidiaries, Eastern Associated Coal, saw its workers’ compensation charges go to $ 8.6 million from $ 1.4 million after the division began making it help pay off the deficit in 1998.

“Worst of all is the immeasurable harm done to the business community’s perception of West Virginia as a place to do business,” the dissent said. “If you were a CEO of a medium or large business and saw what was done to Eastern in this case, would you come to West Virginia to open a new business?”