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Incumbent justice fields attacks on state's Supreme Court

CHARLESTON, W.Va. - State Supreme Court Justice Robin Davis said the unfavorable reputation the court had with state business leaders is long gone.

And the U.S. Chamber of Commerce, which remains critical, is using old rhetoric and "should get over it," she said.

Four candidates are vying for two 12-year terms on the state's high court. Democrat Justice Thomas McHugh is retiring. Davis, a Democrat, is running to keep her spot.

The challengers are Republican Berkeley County Circuit Court Judge John Yoder; Democrat Tish Chafin, who practices law in Mingo County with her husband, state Sen. Truman Chafin; and Republican Allen Loughry, a Supreme Court law clerk.

All four candidates run against each other, with the top two vote-getters wining seats.

The four met Wednesday with the Daily Mail editorial board.

The state court system continues to face criticism from the U.S. Chamber and various Republicans. They say the state has a poor legal climate that is unfriendly to businesses.

The West Virginia Chamber of Commerce will formally endorse Davis next week, state Chamber President Steve Roberts said Wednesday. The Chamber also endorses Loughry.

Davis, the current court's most senior member, said state business leaders' criticism of the state's legal climate is "long gone."

Business leaders and their attorneys said this summer that 33 recent Supreme Court cases were important to industry. In those cases, 22 of the court's decisions were favorable to business, eight were unfavorable and three were neutral.

Still, the U.S. Chamber remains critical of West Virginia's court system. The Chamber-backed Institute for Legal Reform named the state one of the worst for lawsuits.

U.S. Chamber President Tom Donohue recorded a short video in September to go along with the Chamber-backed report.

"I can tell you I talk to people in West Virginia that were encouraged to come there, to set up business there, who would never do it again - won't invest more money," he said in the video, posted online on Sept. 10.

"And I think the state - who has a lot of good people there, a lot of good people in the government - the state has to understand: They make a change, or they will be last in economic development as well."

Davis said the court has a "new face" with five justices who don't inject politics into their decisions. That, in turn, has made a "major turn" in the way businesses perceive the court.

"This continued outcry from the United States Chamber: My suggestion to them is, 'Go pound on another state,' because we have a proven track record from the state Chamber," Davis said. "So, it's time they find another slogan to slam West Virginia about."

Yoder said the national perception is "unfair," but there is "basis for those perceptions."

"The reality of it is that the business leaders of this nation do pay attention to what the U.S. Chamber thinks," Yoder said.

In the past, the Supreme Court would decline to hear some cases and issued only sentence-long rulings dismissing an appeal. But the court has begun taking steps to show the public it's seriously considering all appeals. The court now issues multi-page decisions in each one.

The state Chamber has said the system is working.

But Yoder, like the U.S. Chamber, thinks the court hasn't done enough.

He said the state should create a whole new court: an intermediate court to hear appeals. Right now, cases go from circuit court to the Supreme Court.

Loughry said the high court is headed in a "really good direction."

"Perceptions don't change overnight," he said. "It's going to take some time."

Loughry brought up his 2006 book, "Don't Buy Another Vote, I Won't Pay for a Landslide: The Sordid and Continuing History of Political Corruption in West Virginia."

"It's my belief that a lot of the frustrations that people feel toward the judiciary, they actually feel toward our government and our elected system as whole," Loughry said.

As the entire system gets better, that will also help the judiciary, he said.

Chafin said the Legislature should look at how well the court's appeals system is working.

She also said some of her proposals would help change perceptions about the court.

Chafin has introduced two changes she would like to see made to the court. One is meant to create a "balanced court," and the other is designed to increase transparency. The proposals have become the center of focus in the race because court candidates are generally restricted from talking about issues.

Supreme Court Chief Justice Menis Ketchum dismissed one of Chafin's proposals as "silly" this spring. But whatever their merits, they remain a topic of conversation.

Both proposals are rooted in ethical questions that plagued the Supreme Court several years ago.

Massey Energy Co. CEO Don Blankenship had raised money for a campaign targeting then-candidate Brent Benjamin's political opponent, Justice Warren McGraw. After Benjamin defeated McGraw, Benjamin refused to remove himself from a big case involving Massey.

The U.S. Supreme Court eventually made the state Supreme Court reconsider the case without Benjamin.

One of Chafin's plans, much discussed during the Democratic primary, would change what happens if justices have or may have conflicts of interest.

Currently, justices are supposed to remove themselves from cases if their impartiality might reasonably be questioned. If a justice refuses to sit out a case, only the U.S. Supreme Court can step in to take them off the case, an extraordinary occurrence.

Under Chafin's plan, if a justice with a perceived conflict of interest refused to sit out a case, the four other justices and a specially appointed judge could remove them.

During the same period in court history, former Justice Spike Maynard exchanged emails with Blankenship. The Associated Press sought access to those exchanges, and the court fought their release. Eventually, the Supreme Court, in an opinion written by Davis, said none of the 13 emails at issue should be made public, though a lower court already had ordered five of them to be released.

"I can't think of a worse climate for businesses to come to the state of West Virginia if they believe that there can be private correspondence between judges and litigants with cases pending before them," Chafin said.

Yoder said he thinks the current law requires disclosure of exchanges between judges and lawyers with pending cases.

Loughry likewise said improper contact between judges and lawyers is prohibited.

"It's almost as if the Legislature passes a law that says, 'You have to stop at stoplights,' and then they pass another law that says, 'Now, remember, you really do have to stop at stoplights,' " he said.

Loughry then mentioned Chafin and her husband, the senator.

"What we do with all of our decisions is we review laws passed or amended by the Legislature," Loughry said.

"So, if Tish were fortunate enough to win a seat on the court, virtually every single issue that came before the court in one way or another would raise some sort of a recusal issue for the next 12 years."

Chafin said she strongly disagreed with Loughry and Yoder's criticisms.

First, she said, the current law on disclosing communications isn't clear. That's why the Supreme Court spent more than $50,000 trying to prevent the release of Maynard's emails, she said.

Chafin said she would have to recuse herself from a case involving a bill her husband "championed." But she said she would not have to step away from a matter just because he happened to be a member of the Senate.

"My husband is one of 134 legislators, and it wouldn't be any conflict for me to review law on the Supreme Court and, if it were, I would subject myself to the recusal rules which I advocate here in my Balanced Court Initiative," she said.

Davis, the current court's most senior justice, said the state court follows the same process as the U.S. Supreme Court, all federal courts and most state courts.

"We're now, again, taking a look three years behind," Davis said, referring to the Benjamin case. "We haven't had a problem with recusal since the one case."

Contact writer Ry Rivard at ry.rivard@dailymail.com or 304-348-1796. Follow him at www.twitter.com/ryrivard.

 


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