Litigation

Another Recusal Controversy in West Virginia

By Peter Hardin

There is a new recusal issue facing a state Supreme Court justice in West Virginia, the home of a judicial recusal dispute that made landmark law in the U.S. Supreme Court last year.

Justice Menis Ketchum has declined to step aside from a case involving the state limit on punitive damages, according to a Blog of Legal Times article, although he made a campaign pledge that “I will not vote to overturn [the law], I will not vote to change it.”

He declined a party’s request to recuse, and issued the following statement, the blog reported: ?I am satisfied that my predisposition does not equate to an actual bias towards any of the parties in this appeal.?

The justice’s remark relates to a case that the blog describes as “a direct challenge to the constitutionality of the state Medical Professional Liability Act, which limits punitive damages in malpractice suits to $500,000.”

?I disagree that having a preconceived view on the MPLA caps is grounds for disqualification,? Justice Ketchum said in his statement. His recusal was sought by Robert Peck of the D.C.-based Center for Constitutional Litigation, representing plaintiffs in the case, MacDonald v. City Hospital.

The justice added, ?While I am predisposed to do just what I said during my campaign ? that I will not vote to overturn, change or otherwise modify the MPLA caps ? as a jurist I am required to look at all issues from a different perspective than I enjoyed as Lawyer Ketchum.? He was elected in 2008.

West Virginia’s  code of judicial conduct bars candidates from delivering ?pledges or promises of conduct in office? and statements that ?commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court.?

In Caperton v. Massey, the U.S. Supreme Court found that large judicial campaign expenditures could create an unacceptable potential for bias. Caperton involved a coal executive?s spending $3 million in 2004 to help elect a state Supreme Court justice. His coal company, Massey, went on to benefit from two critical votes by the justice to overturn a massive jury award against it.

The U.S. Supreme Court  required the West Virginia justice to disqualify himself  and pointed out the ?serious, objective risk of actual bias? arising from such a large campaign expenditure. Learn more about Caperton from Gavel Grab.

Full post as published by The Gavel on September 24, 2010 (boomark / email).