WASHINGTON — While some are reacting to news that trial lawyers may soon receive a tax break, the U.S. Department of the Treasury is not commenting.

A Treasury spokesperson said Wednesday that the department did not have a comment on a member of the nation’s trial lawyer group, the American Association for Justice, revealing the Treasury’s plan to order a tax break for lawyers working on contingency fee lawsuits.

Sources at an AAJ convention in Vancouver, Canada, told Legal Newsline that John Bowman, the Director of Federal Relations for the AAJ, said in response to a question from a state delegate regarding recruiting new members that an administrative order from the Treasury Department could come soon.

A message with the AAJ was not returned.

“If so, it’s outrageous, using the taxpayers to subsidize speculative lawsuits to the tune of (an estimated) $1.6 billion,” said Carter Wood, of the National Association of Manufacturing.

The tax break could be similar to proposed legislation that didn’t make it through Congress last year. That proposal, sponsored by U.S. Sen. Arlen Specter, D-Pa., would have allowed attorneys to deduct fees and expenses up-front for filing contingency fee lawsuits.

“A revenue ruling or new guidance from Treasury would also represent yet more of the current Executive Branch’s disregard for the policymaking branch of government, Congress,” Wood added.

The president of the American Tort Reform Association called a tax break for lawyers “baffling.”

“The Obama administration insists that it’s determined to create jobs and help the private sector economy expand. But by forcing taxpayers to subsidize still more litigation, it would do the just the opposite,” Sherman “Tiger” Joyce said Wednesday. “We can either create more jobs or more lawsuits.”

In West Virginia, the president of the state Chamber of Commerce went off on the AAJ and the Obama administration.

“This is another gift from the lawsuit loving Obama administration to the already rich,” Steve Roberts said. “This is Chicagoland politics at its worst and, if true, is just despicable. No wonder the public holds Obama in such low regard.

“Obama doesn’t even act like he wants to have reasonable policies. It’s time we called him and his supporters out.”

Roberts called the administration’s “hypocrisy” on this issue “astounding.”

“The Obama administration and their adherents in Congress tax, regulate and penalize the businesses that hire Americans who need jobs and turn around and shovel money to their multi-millionaire political allies,” he said. “A tax break for plaintiff’s lawyers who sue people for a living is nothing short of welfare for the rich.

“This is such a slap in the face to honest, hardworking people who don’t go to resorts in the Canadian Rockies to talk about getting tax breaks on their multi-million dollar incomes.”

Richie Heath, executive director of West Virginia Citizens Against Lawsuit Abuse, agreed.

“Why on earth would we want to create additional incentives for filing job-killing lawsuits at a time when millions of Americans are looking for work,” he said. “It’s simply ridiculous to force taxpayers to subsidize the lawsuits of wealthy personal injury lawyers.”

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Early in the morning while traveling home from a visit with our family in Boston, I started reading the “Boston Globe.” At first I thought I was sleepy and misreading the headline of an article that stated “Suit will say toys in Happy Meals break the law.”

But as I read The Associated Press article by Mary Clare Jalonick further, it became clear that people at the Washington, D.C.-based Center for Science in the Public Interest (CSPI) are serious. They are threatening to sue McDonald’s saying that it “unfairly and deceptively” markets the toys (in the Happy Meals) to children. This sounds like overkill.

“Happy Meals” are usually a selection of not-so-healthy foods accompanied by some short-lived toy for younger kids. While no sensible adult would recommend fast food for children as a steady diet, parents should be able to make an intelligent decision about how often junior should partake of this specialty, rather than have a consumer advocacy group file a lawsuit.

The whole subject offers lots of food for thought. One dramatic statement made in the article was a claim that “McDonald’s marketing has the effect of conscripting America’s children into an unpaid drone army of word-of-mouth marketers, causing them to nag their parents to bring them to McDonald’s.”

One has to wonder if those filing the suit have ever raised or lived with young children. Most kids are pros at nagging their parents for things their friends have, those advertised on TV and any object that interests them at the moment.

This nagging seems to be innate and is one reason that children desperately need competent and loving parents who can say “no” when it is in their child’s best interest. Every day kids beg for candy, sleepovers, clothes parents don’t like or can’t afford, skipping baths, staying up late, pets they won’t take care of or any other thing that crosses their minds.

Nagging can be effective. Years ago I remember giving in to our children’s incessant clamoring for “Clackers,” a new cereal that TV ads promised was delicious. After eating the cereal, the kids learned that TV commercials aren’t always true. The lesson was worth more than the cost of the cereal.

One has to ask just how committed the CSPI is to the McDonald’s Happy Meal issue, since it is reported that this organization has “filed dozens of lawsuits against food companies in recent years (and) is hoping the publicity and the threat of a lawsuit will force McDonald’s to negotiate with them on the issue.”

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CLARKSBURG — The regular session of the West Virginia Legislature will begin Jan. 13, and local lawmakers are gearing up for a full 60 days in Charleston.

Senate President Pro Tem Joe Minard, D-Harrison, said the budget is always a hot topic during the legislative session.

“The Legislature’s main function is to balance the budget,” he said.

This year, the budget will be even harder to balance because of projected shortfalls reaching into the millions, Minard said.

“I think we’re going to have to make some cuts this year,” he said. “But I don’t know where just yet.”

Another issue that Minard said he believes will be hotly debated during the upcoming session: The recommendations made for judicial reform in the state. Minard said he’s looking forward to getting to work on these issues since he is a member of the Senate Judiciary Committee.

The governor’s Independent Commission on Judicial Reform recently recommended changes to the state’s court system. The changes include establishing an intermediate appellate court and having state Supreme Court justices running for office in 2012 use public funding instead of privately raised campaign money.

“I think the public financing in the 2012 Supreme Court race will happen,” Minard said.

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One of the recommendations made by a special commission set up to examine West Virginia’s court system is puzzling in some ways. It is that the state should establish an intermediate-level appeals court.

Gov. Joe Manchin established the Independent Commission on Judicial Reform earlier this year. It released a set of recommendations a few days ago.

Commission members have recommended that the state establish a new “intermediate appellate court.” Commission members explained that the court could ease the workload – the highest of any state’s top appeals court in the nation – of the West Virginia Supreme Court.

Under the current system, West Virginia has just one appellate court, the state Supreme Court. Cases appealed from circuit courts go directly to the highest bench in the state.

Under the commission’s recommendation, that would continue. But the Supreme Court could, if justices choose, order that the new intermediate court hear certain appeals.

As is the practice elsewhere, however, those losing appeals at the intermediate level could insist on proceeding to the Supreme Court.

Frankly, we wonder how much that would ease the Supreme Court’s workload. We also wonder why the commission, having decided elections would be best for circuit judges and Supreme Court justices, specified that judges for the intermediate court should be appointed.

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West Virginia citizens with concerns about the state’s judicial system will have an opportunity in Huntington on Friday to learn more about the issues and offer their opinions on possible solutions.

We encourage them to take full advantage of the occasion, because all of us have a stake in how justice is carried out in West Virginia.

Taking place on Friday is the first of three public hearings scheduled by the Independent Commission on Judicial Reform. The panel was established by Gov. Joe Manchin to delve into how the state’s court system is set up, how its judges are chosen and whether the system does enough to ensure that people have their day in court.

The first session runs from 9 a.m. to 3 p.m. Friday and will be held in Room 2W16 of Memorial Student Center on Marshall University’s campus. Its focus will be on judicial campaign finance and reporting, which have been among many hot-button issues in recent years. Subsequent hearings will be Sept. 21 in Morgantown, which will explore options for judicial selection, and Sept. 29 in Charleston, where discussions will center on creation of an intermediate court of appeals and courts of chancery to deal with business disputes.

Several speakers are scheduled to participate in each of the sessions, including lawmakers, judges, legal experts and media representatives. Specific topics for Friday’s hearing are public financing of judicial elections and regulating campaign expenditures by independent groups. A full agenda is available at the commission’s Web site, www.judicialreform.wv.gov.

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For years, West Virginia was branded as a “judicial hellhole.” And despite reforms that have been made in the state’s civil justice system, the label won’t completely go away.

Now a new term is becoming almost commonplace in court talk — recusal.

And it’s seemingly always linked to Massey Energy and its CEO, Don Blankenship.

There were the “vacation photos” of Blankenship and state Supreme Court Justice Elliott “Spike” Maynard which arguably led to Maynard’s unsuccessful re-election bid in 2008.

There was the lawsuit filed by Massey — which was dropped two days ago — that challenged the Supreme Court’s recusal procedures after then-Justice Larry Starcher, who had called Blankenship, among other things, a “clown,” declined to step down from cases involving Massey.

And, of course, there was the U.S. Supreme Court ruling in June that said elected judges must step aside from cases when large campaign contributions from interested parties create the appearance of bias, a case that arose after Blankenship spent more than $3 million to help elect Brent Benjamin to the state Supreme Court in 2004.

Now, the focus is on Mingo County Circuit Judge Michael Thornsbury, who is scheduled to preside over an October trial in a lawsuit filed by more than 500 current and former residents of four communities against a Massey subsidiary for injecting an estimated 1.4 billion gallons of coal slurry into worked-out underground mines.

The plaintiffs, who claim the slurry seeped into wells and put their health at risk, accused Thornsbury of “cronyism at its worst,” and alleged he has dined and socialized with Blankenship.

Thornsbury has denied the allegations, and says he has no political or business ties with Blankenship. He is fighting the plaintiffs’ motion to disqualify him from the case.

We won’t take sides in this dispute; it will be up to the state Supreme Court to settle the matter.

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Job growth is an uphill battle in many parts of our country, but West Virginia continues to lag behind other states due in large part to the unneeded roadblocks of an ailing legal system. The U.S. Census Bureau recently released its latest population estimates, and the Mountain State again showed little signs of gain.

As a whole, our state’s population growth is stagnant at best — increasing by a tiny 0.3 percent since 2000. And most of our state’s largest cities continue to lose population year after year. We are now faced with the real possibility of being one of only two states in the nation without a city larger than 50,000 people.

While tough economic times certainly don’t help matters, West Virginia’s problems can’t be blamed exclusively on the recent financial meltdown. For several years now, we’ve had one of the lowest per-capita incomes in the nation, and our state now is routinely ranked as one of the worst states in the nation for jobs by Forbes Magazine.

Ironically, this period of national economic turmoil actually has shined a spotlight on some of the tactics that encourage job growth the best. The passage of meaningful legal reforms is one simple, low-cost method of attracting new jobs to a state. As many states struggle to pay even their monthly bills, some states continue to attract jobs, in part, because of their fair legal system.

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Virginia’s latest number one ranking as the most pro-business state for 2009 serves as yet another reminder that West Virginia has much work to do. While our neighbor to the east appears to be weathering the tough economic times, West Virginia continues to struggle. The latest U.S. Census Bureau estimates show that our overall state population remains stagnant, and most of our state’s “largest” cities are losing population.

As your paper’s July 1 editorial (“Number one, again”) correctly notes, it is time for the Mountain State to step up to the plate and take the necessary steps to compete with nearby Virginia. But a glaring contrast remains between the two states’ legal systems. Virginia boasts one of the best legal systems in the nation, while our state courts are routinely ridiculed for a lack of fairness. With little or no cost to the West Virginia taxpayers, our Legislature could easily put us on the path towards more jobs through much needed legal reforms.

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The U.S. Supreme Court ruled 5-4 that state Supreme Court candidates who benefit from too much financial support – the court did not specify what amount is toxic – may be presumed to be biased and should not hear cases involving the parties that supported them.

The ruling cheered the critics of high-dollar judicial campaigns.

“The Supreme Court said, ‘Enough is enough,” said Bert Brandenburg, executive director of the nonpartisan Justice at Stake campaign. He said states that elect judges “must get to work now, to keep campaign cash out of our courts of law.”

The ruling encouraged those West Virginia lawmakers who want to limit independent political spending, particularly by corporations.

Federal judges have twice temporarily blocked enforcement of those efforts. Some people’s objection to corporate spending on judicial elections is correctly viewed by others as an unconstitutional attempt to stifle free speech.

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The politics of the West Virginia Supreme Court of Appeals has more plot twists than “As the World Turns,” and a 5-4 majority of the U.S. Supreme Court just kinked it even further.    

The state’s highest court, with employer-hostile decisions and invention of novel causes of aggrievement, added to West Virginia’s reputation as a “judicial hellhole” where corporations should not risk their assets.

This perception harmed West Virginia’s ability to attract investment, and many players set about trying to change the makeup of the state Supreme Court.

One of those players was Massey Energy CEO Don Blankenship, who poured $3 million into an independent campaign to defeat one of the worst Robin Hoods of the court – former Justice Warren McGraw.

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