Last week, the state Supreme Court declined to intervene in a case involving a high school cheerleading team.

Tolsia High School claimed it was unfairly punished when a cheerleading stunt that was deemed illegal knocked the team out of state competition. A Wayne County circuit judge agreed and issued an injunction that would allow Tolsia to compete.

The state Secondary School Activities Commission wanted the Supreme Court to overturn the injunction, but the high court refused to hear the case.

Was it a landmark case? No. Was it an important case? Outside Wayne County, probably not. It didn’t involve a multimillion-dollar civil judgment or a criminal case resulting in a life prison sentence.

But it points to a bigger issue.

For much of the current legislative session, a bill to establish an intermediate appellate court in West Virginia drew much attention.

Supporters said the creation of such a court would improve the state’s business climate by guaranteeing an automatic right of appeal and give lower court rulings a more thorough review. Under the current system, they said, those who want to appeal can petition the Supreme Court. The court then accepts or rejects the petition, but no explanation is given if the request is rejected.

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THE House of Delegates wants to tax legal procedures – including divorces – to pay for the political campaigns of the state’s judicial candidates.

That’s almost laughable.

West Virginia citizens should not be required, through their taxes – or in this case, court “fees” – to fund the political campaigns of people they do not support.

That is the trouble with all schemes to require the public to finance political campaigns. Such schemes, pursued as “reform” of the current system, create a worse system – entitlement programs for politicians.

That’s the last thing West Virginians need.

The presidential public financing system failed because major candidates had no intention of abiding by spending limits in primary elections. In 2008, Barack Obama raised so much money that he was able to forego public financing in the general election as well.

That defeated the stated purpose.

At the same time, many minor candidates over the years raked in millions. The worst example was Lyndon LaRouche, who received federal public campaign financing while in prison in 1992.

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FTER more than a year of pursuing only liberal ideas for his health insurance overhaul, President Obama finally met with Republicans to listen to their thoughts on the subject.

One item of interest to the GOP- and of vital importance to the American people – is medical malpractice reform.

Obama said he would be willing to study the issue.

But the potential savings from medical malpractice reform has been studied by no less an authority than the Congressional Budget Office, which said the savings could be huge.

In October, congressional analysts announced that lawmakers could save $54 billion over the next decade with medical tort reforms.

“New research shows that legal reforms would not only lower malpractice insurance premiums for medical providers, but also would spur providers to save money by ordering fewer tests and procedures aimed primarily at defending their decisions in court,” wrote Douglas W. Elmendorf, director of the nonpartisan CBO.

The CBO based its estimate on a package of reforms that would include a $250,000 cap on damages for pain and suffering and a $500,000 cap on punitive damages.

These are reasonable limits that would punish those who practice bad medicine, compensate victims, and reduce medical costs.

The CBO said the federal government would reap a substantial portion of those savings, particularly in the Medicare program. That is an important thing to bear in mind.

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CHARLESTON, W.Va. — The House of Delegates has advanced a bill that would relieve would-be justices from the burden of political fundraising.

Funding for the measure could come from new fees on lawyers and people appearing in court, including those going through a divorce.

The bill, which passed 67 to 30 on Wednesday, would reduce the potential for the appearance of bias as a result of campaign donations.

The program would offer candidates $200,000 initially for a contested primary, and $350,000 for a contested general election. Candidates must take several steps to qualify, including raising an initial batch of funds that would then be counted against primary financing.

But critics of the legislation – what some are describing as a pilot program – call it “immoral” and question its hefty price tag.

The program, according to lawmakers’ estimates, could cost the state upwards of $8 million for the 2012 election cycle.

Critics also question how the program would be funded. Money for it would come, in part, from new fees on lawyers and people appearing in court, including divorcing couples.

“That is a tax, notwithstanding whether we call it a fee or not,” said Delegate William Wooton, D-Raleigh.

The bill calls for a new fee for lawyers to practice in the Mountain State.

The bill also creates several new “fair administration of justice” fees, including a $100 fee for the majority of civil appeals and petitions filed in the state Supreme Court; a $20 fee on each civil action filed in circuit court, with several exceptions; a $20 fee on each party in a class-action lawsuit filed in circuit court; $20 on each plaintiff in a divorce; and a $10 fee on each plaintiff in a civil action filed in magistrate court.

Several lawmakers raised their eyebrows at the fee for divorce cases.

“I suggest it is immoral to pass a tax on a select number of citizens,” Wooton said.

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Legislation that supporters said would improve the state’s business climate by guaranteeing an automatic right of appeal died Tuesday. The Senate Finance Committee on a voice vote rejected a bill that would have established an intermediate court of appeals in West Virginia.

The decision is a victory for the West Virginia Supreme Court which opposed the creation of a new court. The High Court is currently revising its rules to improve the appeal process. Bill supporters, including business organizations, are disappointed with the bill’s failure. They believe the courts need to give appeals a more thorough review.

Sen. Jesse Guills, R-Greenbrier, pushed for the defeat of the bill. Guills said he believes the business organizations have a point, but he wants to give the High Court a chance to make changes before the legislature gets involved. “We’ve been given assurances by Supreme Court Justice (Robin) Davis that the Supreme Court is going to give this serious consideration and I think that opportunity should be given,” Guills said.

Senator Brooks McCabe, D-Kanawha, argued in support of the bill. McCabe believes the fact that the state does not have an automatic right to appeal is bad for business “I think the state needs to be able to assure the business community–and really the public at large, whether it’s civil or criminal–that you really do have an honest right to appeal,” McCabe said.

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CHARLESTON, W.Va. — Attempts to expand campaign finance rules have twice fallen short, but West Virginia lawmakers are trying again — and this time they hope to bring shareholders along with them.

The House of Delegates passed a pair of measures this week that would change how money is spent on political campaigns, and how much information the spenders have to reveal publicly about themselves.

Senate leaders say they will push for passage of at least one of the bills. National advocacy groups say both measures reflect good practices in the wake of January’s U.S. Supreme Court ruling that opens the door to greater campaign spending by corporations and unions.

While he has yet to review the details in each bill, Gov. Joe Manchin generally supports efforts to improve transparency for voters and shareholders, spokesman Matt Turner said Tuesday.

“He thinks that’s the responsible way to look at that,” Turner said.

But the mostly party-line votes that advanced the bills Monday came after House Republicans argued that both violate political speech rights. The bill that seeks to enlist shareholder rights in the bid for greater disclosure, meanwhile, is uncharted territory not only for West Virginia but nationally.

That bill would require corporations based in West Virginia to disclose to shareholders what they spend on campaigns. It would also require a majority of shareholders voting to accept such spending.

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While West Virginia’s leaders have spent a lot of time talking about reforming our state courts, we seem to keep spinning our wheels in the mud. Case in point is our most recent judicial reform discussion.

In April 2009, Gov. Joe Manchin announced that he was creating an Independent Commission on Judicial Reform to study West Virginia’s much-criticized court system and recommend possible fixes. In establishing his commission, Gov. Manchin noted the lack of fundamental change to our courts since 1974.

Many hailed the commission as a positive first step for the state. Public hearings followed, and the result was a series of reform recommendations – the most significant of which included the creation of an intermediate court of appeals and corresponding automatic right of appeal for all litigants.

In its recommendations, the governor’s commission notes that our Supreme Court of Appeals, one of the busiest appellate courts in the nation, “maintains a completely discretionary docket, with no appeal as of right.”

If this process sounds familiar, it’s probably because our state did the same thing more than a decade ago. In 1997, the West Virginia Supreme Court similarly appointed its own Commission on the Future of the West Virginia Judicial System, which noted that there had not been a thorough review of West Virginia’s courts since 1974.

The commission ultimately found that “West Virginia’s court system must change to meet the demands of our changing society and to better serve the citizens of this great state.”

Citing an appellate process “threatened by a continuously increasing caseload” and one of the busiest appellate dockets in the nation, the Supreme Court’s own commission recommended, among other things, the creation of an intermediate court of appeals along with one appeal-of-right for all litigants.

Thus, two separate commissions, one created by the governor and one created by the court, have come to similar findings – the caseload of the West Virginia Supreme Court warrants the creation of an intermediate appeals court with corresponding right of appeal. This is why Gov. Manchin’s recent State of the State address and subsequent comments from Chief Justice Robin Davis are baffling.

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We were skeptical when Gov. Joe Manchin’s Independent Commission on Judicial Reform announced its recommendations that included a public financing pilot program, codification of the interim appointment process, establishment of an intermediate appellate court, and initiation of a feasibility study for a proposed business court.

We saw no benefit to public financing (see “The best judges taxpayer money can buy”), but the other three recommendations were sensible. We also wondered how long it would take to begin the reform process.

Plans for a business court appear to be moving forward, a good first step in the right direction. For too long, West Virginia has suffered a reputation as a hostile environment for business. Established firms have scaled back, closed, or relocated; companies that might have come to our state have gone elsewhere.

Except for the small group of trial attorneys getting rich as our economy tanked, we’re mostly poorer than before.

House Bill 4352, approved by the House Judiciary Committee and sent to the full House last Thursday, would allow the state Supreme Court to create business courts in jurisdictions with more than 60,000 residents.

“By creating this court division, West Virginia is sending a clear, strong message that this state is a welcoming environment for businesses,” said House Speaker Rick Thompson (D-Wayne).

Thompson is correct, and he needs to stay focused on getting this legislation passed. We also want him and the state Legislature to follow through on the establishment of an intermediate appellate court, ignoring State Supreme Court Chief Justice Robin Davis’ preference for the status quo. We can’t move forward by standing still.

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When it comes to campaign spending laws the West Virginia Legislature never seems to learn. Twice it has passed laws aimed at controlling election spending and both times they have been struck down by the courts as unconstitutional.
Now, lawmakers are at it again. This year a group of Democrats is pushing legislation (HB 4646) aimed reinstituting restrictions on spending that were wiped out by the U.S. Supreme Court earlier this year. (The bill is on second reading in the House)

In Citizens United v. Federal Election Commission, the high court in a 5-4 decision said that under the First Amendment election spending by corporations cannot be limited.

Yet, here comes the West Virginia Legislature trying to do just that. The bill attempts to put in place a range of obstacles that would make it extremely difficult for a West Virginia corporation to exercise its First Amendment right of free speech.

The legislation says that if a corporation spends over $10,000 in an election it must first get approval from over half (50 percent plus one) of all shareholders. The bill says “Shareholders not casting votes shall not count toward affirmative authorization under this chapter.”

Does that mean a corporation has to track down everyone who has even a single share in an effort to meet the threshold? What about corporations that don’t have shareholders? Does the vote of a person with 10,000 shares count the same as a person with 10 shares?

The proposal also discriminates against in-state corporations. Under this bill, Budweiser could run unlimited ads in a West Virginia campaign without shareholder approval because it’s based out of state, while a West Virginia-based corporation has to meet this requirement.

The Iowa Legislature is trying to pass similar legislation. Sean Parnell, president of the Center for Competitive Politics, said of their attempts, “The Supreme Court’s decision allowed for disclosure of independent expenditures. It did not permit states to throw up a regulatory gauntlet of overly-burdensome shareholder regulations to force companies to run through before they are allowed to speak on urgent political issues.”

Also, the proposed West Virginia law does not cover union spending. Labor organizations could engage in unlimited spending for or against a particular candidate or issue without getting membership approval while corporations must seek shareholder permission.

So, under the West Virginia bill, unions and corporations would be treated very differently, which may well violate the 14th Amendment guaranteeing equal protection.

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CHARLESTON — A proposed intermediate court of appeals, assuring every West Virginian a day before the bench, cleared the Senate Judiciary Committee after a lengthy explanation Thursday.

While the Supreme Court has disparaged the idea as unneeded, the Senate panel moved ahead, at least to get the debate started.

Earlier, Chairman Jeffrey Kessler, D-Marshall, voiced doubts the bill would be enacted this session.

But by getting the measure out, he hoped to get some serious conversation going on the idea.

Before exiting his panel, Sen. Richard Browning, D-Wyoming, altered the bill so that electronic filing is allowed.

Majority Leader Truman Chafin, D-Mingo, a practicing attorney, pointed out the proposed new court could handle up to 2,500 cases a year, contrasted with 1,000 averaged by the Supreme Court.

“They can’t do it,” he said. “One of the things that needs to be done, we’ve got to get up to date on electronic reporting.”

Judiciary committee counsel Rita Pauley explained the intent is to start with three judges, but the number could double if interest is there.

If that occurs, she said, there would be a northern and southern district court.

The court could hear appeals from all orders by circuit courts in civil and criminal matters, but wouldn’t sustain original jurisdiction.

Appeals would be filed within 60 days, with a response due in one month and all decisions to be made in six months, but there may be times when further briefs or filings are required, she pointed out.

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