Litigation

WV Justice Does Turnabout, Recuses Self

By Peter Hardin

After his legal reasoning was questioned in the blogosphere, a West Virginia Supreme Court justice did a turnabout and announced he was disqualifying himself from a case that involves the state limit on punitive damages.

Justice Menis Ketchum said in a memorandum he saw no legal basis for his disqualification, but it appeared that “the lawyers who moved to disqualify me are attempting to create a ‘firestorm’ by assaulting the integrity and impartiality of West Virginia’s Supreme Court,” according to a posting by Tony Mauro in The Blog of Legal Times.

That blog had reported last week on Justice Ketchum’s initial decision not to disqualify himself, although he had made a campaign pledge that ?I will not vote to overturn [the law], I will not vote to change it” (see Gavel Grab).

The civil case presents ?a direct challenge to the constitutionality of the state Medical Professional Liability Act, which limits punitive damages in malpractice suits to $500,000,? according to the BLT blog.

Another West Virginia justice’s decision against recusing himself led to a landmark U.S. Supreme Court decision in 2009, in Caperton v. Massey. Justice Ketchum’s new statement suggested that blog or press portrayals of the court figured heavily in his decision to recuse. Here is his unusual, entire new statement:

“Upon further reflection, I am disqualifying myself from the above case. I strongly believe there is absolutely no legal basis for my disqualification. See Republican Party of Minnesota v. White, 536 U.S. 765 (2002). However, it appears to me that the lawyers who moved to disqualify me are attempting to create a ‘firestorm’ by assaulting the integrity and impartiality of West Virginia’s Supreme Court.

“I promptly sent my disqualification response to the lawyers on September 23, 2010. The next day my response appeared in a Washington internet blog. (See copy attached.) How did a blog so quickly get my disqualification memorandum which was sent only to the lawyers in the case? Why is it newsworthy that a West Virginia judge previously exercised his right of Freedom of Speech?

“The blog did not have the decency to publish my First Amendment rationale as authorized by Republican Party of Minnesota v. White, or quote the legal rationale from White set out in my memorandum.

“I could care less if the blogs or press crucify me personally. However, I believe the lawyers are pulling the press’s strings to place our Court in an unfavorable light. A lot of hard work has been accomplished to keep the Court out of the limelight since I took office on January 1, 2009. I don’t want our Court to be publicly maligned by those with a ‘win-at-all-cost’ mentality. I disqualify myself from this case.”

A recent article in The West Virginia Record, a legal journal, discussed the lawsuit and concerns about its implications that were expressed by the West Virginia State Medical Association. The article, entitled “Cap challenge concerns medical group leader,” also points to a changing make-up of the West Virginia Supreme Court of Appeals since it dealt previously with the issue of medical malpractice caps. It noted the campaign statements of then-candidate Ketchum in 2008.

The Charleston Daily Mail wrote about the case in late August and noted then-candidate Ketchum’s remarks from 2008.

Full post as published by The Gavel on September 28, 2010 (boomark / email).