Opinions Differ On Supreme Court Decisions

By James E. Casto

The way the West Virginia Chamber of Commerce figures it, anti-business decisions outnumbered pro-business decisions three-to-one during the spring term of the state Supreme Court of Appeals. Tallying that kind of box score on court decisions is a dubious approach that doesn’t give an accurate picture, counters one Supreme Court justice.

A spokesman for the state’s trial lawyers calls the Chamber of Commerce effort "an unfair criticism." And a West Virginia University law professor also is critical of the Chamber’s approach, suggesting it "perpetuates the us vs. them attitude" that retards progress in the state.

The Chamber of Commerce long has complained that many decisions rendered by the state Supreme Court are anti-business and anti-growth. Now, in a report on a new project it has christened "Court Watch, the Chamber has taken that criticism to a new level.

A volunteer team of lawyers assembled by the Chamber reviewed each of the 180 cases ruled on by the court during its spring term. Chamber President Steve Roberts described the review as an effort "to measure the impact of the decisions ... on our state’s economy. That review identified 13 decisions as having significant implications, pro or con, on the state’s economy.

The review team’s report, presented at the Chamber’s annual meeting at The Greenbrier in September, indicated that nine of those 13 decisions had a negative impact on business, three were business friendly and one, since it was still in litigation, carried an unknown impact.

Among the decisions identified as anti-business were ones on workers’ compensation, exposure to toxic chemicals and the rights of disabled employees. In contrast, a ruling on employee benefits was described by the review team as "a win for business.

This approach disturbed Supreme Court Justice Robin Davis. Davis told Charleston’s Daily Mail that the idea of separating cases into pro- and anti-business categories may be attractive, but it doesn’t tell the whole story.

"It may be tempting," she said, "but saying one decision was anti-business and one case was pro-business doesn’t tell the whole story. We are charged with applying the laws created by the Legislature. That’s what we do, and I think we do a fair, evenhanded job.

"Davis also took issue with the suggestion that the Supreme Court is retarding the growth of the state’s economy. "I think that’s an easy thing to say, but I don’t think it’s accurate, she said. "Look at the new companies that are locating in the state, look at what good things are happening. There is another story to tell."

J. Franklin Long, a Bluefield lawyer and president of the West Virginia Trial Lawyers Association, said he saw the Chamber’s report as "an unfair criticism" of the court.

"It’s easy for outsiders to attack the court and allege that the justices are either pro or con in certain areas," Long said. "But the court has a duty to interpret the law. If that interpretation favors business, that’s fine. If the court’s interpretation favors consumers, that’s fine. But what the court should not do and what the court has not done is make decisions based on popularity." Citing the list of lawyers who participated in the Chamber’s review process, he described it as "a group that’s been retained for the purpose of assisting business."

"We all want businesses to come into West Virginia," Long said, "but under the law, consumers have rights that should be protected. We should not have a system whereby business should be able to exercise its legal rights at the expense of consumers. One of the purposes of the courts is to determine who should prevail business or consumers in certain suits. The mere fact that the court rules in favor of a consumer doesn’t mean the court is pro or con, it means the court is interpreting the law.

"The court has done an excellent job of determining the rights of individuals, as well as the rights of business. In recent years, there has been a net gain of businesses coming into this state. The court has not done anything to discourage any business from coming into West Virginia. I don’t believe we would want to live in a state where business could exercise its legal rights and consumers could not do the same."

Also voicing concerns about the Chamber’s "Court Watch" review was Ann Maxey, a professor of law at WVU and director of the West Virginia Law Institute. She noted she was trained in, and has practiced, corporate law and now teaches a class in it.

"Lawyers rightly can have honest disagreements as to court decisions, Maxey said, "but I’m concerned when a review panel is formed and there is this kind of simplification and politicization of the Supreme Court’s decision."

"Ironically," she suggested, "the publication of this report and its widespread distribution could have an unintended consequence and actually encourage some out-of-state businesses and others to view West Virginia as anti-business. I’m sure that was not what the Chamber had in mind."

Rather than using the box-score method used by the Chamber, Maxey suggested that a better approach "is to remember that we have elections of justices and legislators." Elections, she said, are the proper point for concerned individuals and organizations to make their voices heard if they wish to influence the judicial process. "Justice and the rule of law can be very quickly diminished" by unfair attacks, she warned.

The Chamber’s report, Maxey said, "perpetuates the us vs. them attitude that retards the cooperation that we need. After all, we’re all in this together."

Despite the criticisms of the report, Roberts said it had been "well received by Chamber members and indicated that the business group plans to continue the review project. He called the review a matter of accountability.

"Clearly, decisions have consequences, Roberts said. "West Virginia’s Supreme Court of Appeals makes decisions that have an impact on the state’s economy. Court decisions effect taxes, workers’ compensation costs, education and all manner of issues that touch the citizens of West Virginia."

The review is "not unique to West Virginia, he said. "Other states and other organizations shed a similar light on the impact of court decisions.

Once the Chamber of Commerce decided to undertake the review, the next step was to select the members of the review team.

"We assembled the team," said Roberts, "with an eye to those lawyers who are moderate in their outlook, who are visible members of the business community and who have volunteered for Chamber projects in the past. Obviously, we also were interested in geographical diversity and, where possible, enlisting those with expert knowledge in tax law and other areas of interest."

The "Court Watch" report released at the Chamber’s annual meeting identified the following lawyers as members of the project’s review team: Stephen D. Annand and John F. McCuskey of the firm Shuman, Annand, Bailey, Wyant & Earles; William T. Brotherton III, T. Randolph Cox and Heather Heiskell Jones of Spilman Thomas & Battle; Michael E. Caryl of Bowles Rice McDavid Graff & Love; Bryan R. Cokeley of Steptoe & Johnson; David M. Flannery and Timothy E. Huffman of Jackson & Kelly; John R. Hoblitzell of Kay Casto & Chaney and Grant McGuire of Campell, Woods, Bagley, Emerson, McNeer & Herndon.

About the author:  James E. Casto is associate editor of The Herald-Dispatch.