TAKE ACTION NOW! Remind Bill Cole, Tim Armstead and your legislators that actions speak louder than words.  Their first responsibility is to West Virginia taxpayers—not out-of-state, special interests.  Tell them “NO” to an expensive intermediate court we don’t need and can’t afford.

West Virginia’s financial woes continue.  It is now being reported that we’re in the red for more than $350 million for this fiscal year—a deficit of nearly 10 percent.  As monthly tax collections continue to fall under budget (in December alone, it was $43 million short), there’s a real chance that by June the state could be more than $500 million in the hole.

When the current state budget was approved back in March, agencies were told they needed to tighten their belts and cut their budgets by 7.5 percent.  Then in October, Governor Tomblin ordered agencies to cut another 4 percent.  The October cuts alone took $32.5 million from our schools, colleges and universities.  Senior programs and services are being cut.  Road repairs aren’t going to be made.  Critical infrastructure we need to attract new businesses isn’t going to be built.

Another key area being cut is funding for the Public Employees Insurance Agency (PEIA).  Our teachers, public employees and retirees are not only facing a big reduction in their health benefits, but also their premiums are going up at the same time.  Those cuts are being challenged by the PEIA board.

Senate President Bill Cole’s response?  “West Virginia’s tax payers will not be left to hold the bag.”  He also claimed that “the Legislature remains committed to being a good steward of tax payer dollars.”

Why then are Senator Cole, Speaker Armstead and other legislative leaders still insisting that West Virginia waste more than $20 million on an intermediate court we don’t need?

The simple answer: the out-of-state, corporate special interests that helped finance their campaigns and independent attacks against their opponents are demanding it, whether we need it or not.

The facts show that we don’t.

• Proponents claim that automatic right of appeal doesn’t exist in West Virginia.  It does—a fact backed up by the National Center for State Courts and a new report issued by the West Virginia Supreme Court of Appeals.  In 2011, the Court adopted new rules that ensured that all appeals were briefed and written decisions were issued.  Since 2011, no appeals have been denied and more than 5,000 opinions have been written.

• At the same time, the total number of appeals filed with the Court declined from 3,569 in 1999 to just 1,346 in 2014—a decrease of 60 percent.  Appeals have declined at a rate four times the national average.  The Court’s new report says that 2015 filings will fall below 1,300 for the first time in more than 30 years.

• The special interests pushing for an intermediate court are concerned with just civil cases, which represent only 14 percent of the total caseload.  These cases have declined too, from 402 in 2004 to just 184 in 2014.

The fiscal note prepared on the proposed court shows that it will cost taxpayers $9.7 million a year.  That doesn’t include the initial start-up costs or the millions more for the state agencies that will need to handle both legal and administrative appeals before the new court.  It will cost county taxpayers more too since we will need to increase the budgets for our county prosecutors.

The Legislature’s Republican leaders want to expand state government by adding an unnecessary and expensive intermediate court that our state doesn’t need—at a time when we’re hundreds of millions in the hole and critical state programs are being cut.  Does that sound like being a “good steward of tax payer dollars” to you?  Didn’t think so.

Don’t leave West Virginia taxpayers holding the bag!

TAKE ACTION NOW! Remind Bill Cole, Tim Armstead and your legislators that actions speak louder than words.  Their first responsibility is to West Virginia taxpayers—not out-of-state, special interests.  Tell them “NO” to an expensive intermediate court we don’t need and can’t afford.

Bamboozle [bam-boo-zuhl] – to deceive or get the better of
someone by trickery, flattery or the like; humbug; hoodwink

Tell West Virginia legislators to protect your constitutional rights!
Don’t let them get bamboozled again! Sign the petition!

Noted astronomer Carl Sagan said, “One of the saddest lessons in history is this: If we’ve been bamboozled long enough, we tend to reject any evidence of the bamboozle.” Such is the case with the West Virginia Legislature and the American Tort Reform Association’s Judicial Hellhole® PR campaign.

The bamboozling begins with ATRA itself. Founded in 1986 it claims to be a “grassroots” organization, the truth is the members are largely Fortune 500 companies with direct financial stake in restricting lawsuits” including “the tobacco, insurance, chemical, auto and pharmaceutical industries.” ATRA is a front group bankrolled by billion-dollar corporate special interests.

For more than 10 years now, the Judicial Hellhole® PR campaign has been the focal point of ATRA’s efforts. While ATRA claims that it’s an accurate analysis of court systems, it’s not. As Dr. Elizabeth Thornburg noted in her study of the Hellhole campaign:

“The explicit goal [of the Hellhole Report] is to appeal to the public as voters, to scare state politicians into making pro-defendant changes in the law in order to make the label go away, and to get rid of judges whose rulings made ATRA members unhappy.  Judicial Hellholes are selected in whatever way suits ATRA’s political goals.  The choice is not based on research into the actual conditions in the courts.”  (Elizabeth Thornburg, “Judicial Hellholes, Lawsuit Climates and Bad Social Science,” West Virginia Law Review, Vol. 110 No. 3)

When the New York Times pointed out the problems with the report, its own authors admitted that it wasn’t a valid analysis. “The question is whether the report’s arguments make sense, are supported by evidence and are applied evenhandedly. Here the report falls short . . . It has no apparent methodology.” In response, ATRA admitted that “we have never claimed to be an empirical study.” (New York Times, December 24, 2007)

Want one even better? West Virginia’s inclusion in the 2005 version was based on two Teflon lawsuits that were never even filed in the state. The report’s own footnotes listed the states where the cases were filed, and West Virginia wasn’t on the list. When a reporter pointed out the error, ATRA said it didn’t matter. We were still a “hellhole.” (Charleston Gazette, December 15, 2005)

From the beginning, West Virginia has been a target of the Hellhole attack. We’ve been included every year despite the fact that independent evidence showed that it was unjustified. According to the National Center for State Courts, in 2010 West Virginia ranked 39th for the number of civil lawsuits filed based on population—and we’ve always been in the bottom 25 percent. Our filings are declining too. There were 4,302 civil cases per capita in 2010, and that total decline to 4,098 per capita in 2012 – a decline of 4.7 percent. Those facts do not point to a “judicial hellhole.”

Despite this evidence, West Virginia lawmakers have been bamboozled by ATRA and its corporate funders into believing that the Hellhole attack was legitimate instead of the trumped up propaganda that it really is. Lawmakers insisted that the hellhole problem be “fixed” so the label would go away.

ATRA insisted that they attacks would stop if lawmakers gave its backers what they wanted. Our legislature did that in 2003 and 2005. But did the attacks stop? No. In fact, the ATRA started ranking us dead last. ATRA and its backers wanted more. Last year, they funneled millions into our state to buy a legislature that would give them what they wanted—and they did. Thirteen bills from the ATRA agenda were passed. The new laws limit corporate accountability when they harm or cheat West Virginia consumers, workers and small business owners. They get to increase their profits at the expense of our safety, our bank accounts and our constitutional right to trial by jury.

Now, ATRA and legislative leaders are congratulating each other for putting together such a great solution . . . to a problem that never existed in the first place.

West Virginia lawmakers should be doing what’s best for West Virginians. Instead, they’ve been bamboozled into believing that taking away our rights and risking our personal and financial safety were “good” for West Virginia. Rather than admit the mistake, they’re patting each other on the back.

Let’s make sure it doesn’t happen again.  Tell West Virginia legislators to protect your constitutional rights.   Don’t let them get bamboozled again!

Read our blog to learn more and then sign our petition.  Tell state lawmakers West Virginia doesn’t have money to burn!

The State of West Virginia is just one-quarter of the way through its current fiscal year, and Gov. Earl Ray Tomblin announced that we have a budget deficit of $250 million.  Why then is the West Virginia Legislature even considering the creation of an intermediate court in our state?  It is a waste of our limited tax dollars and an unnecessary expansion of state government.

According to the most recent fiscal note on the proposed intermediate court, it will cost taxpayers $9.7 million a year.  That amount doesn’t include the initial start-up costs.  It also doesn’t include millions more for the additional expenses that will be incurred by state agencies like the West Virginia Attorney General’s office, public defenders, the tax department and other agencies that will need to handle both legal and administrative appeals before the new court.  In addition to these costs, county taxpayers will also pay more since we will need to increase the budgets for our county prosecutors.

It’s going to cost us millions—and we don’t have the money to waste.  We’re cutting essential state programs left and right, including $16 million from our schools and another $16.5 million from higher education.  We have one of the oldest populations in the country, but senior programs and services are being cut.  We have one of the highest percentages of veterans, but we’re cutting funds for their programs too.  Funding for PEIA is being cut, affecting our teachers, public employees and retirees.  They are going to face significant cuts in benefits, and their deductibles are being increased.  For families, it will be $3,000.  Most West Virginia families can’t afford that.  We need major roads repairs and infrastructure improvements, but money is being cut for that too.

The Legislature should not be wasting tax dollars we don’t have on an intermediate court we don’t need.  Despite claims from the corporate special interests pushing for the court, automatic right of appeal exists in West Virginia.  Appeals to the West Virginia Supreme Court have declined 60 percent over the last 15 years, from 3,569 in 1999 to just 1,346 last year.  Our appeals are declining at a rate four times the national average.  The civil cases cited by those wanting the court represent just 14 percent of the cases.  They have also declined more than 50 percent over the last decade, from 402 in 2004 to just 184 in 2014.  Based on these figures, adding an intermediate court is an unnecessary expansion of state government.

That’s a sentiment echoed by the Honorable James Hardesty, chief justice of the Nevada Supreme Court when he appeared by video conference before the Legislature’s Joint Judiciary Committee.  Nevada had to add an intermediate court last year due to the state’s rapidly growing population and the increased number of cases being filed.  The court there had a three-year backlog. The court system expansion was necessary.  When questioned about whether West Virginia needed one in light of its current case filings, Justice Hardesty said no.

Why then is the Republican-controlled Legislature pushing for an intermediate court that wastes our tax dollars and unnecessarily expands our state government.  It’s because the corporate special interests that spent millions to help get them elected want it—whether our state needs it or not.  (It’s ironic that the same special interests that call our beautiful state a “judicial hellhole” want us to expand our judiciary.)

The West Virginia Legislature’s first priority should be doing what’s best for West Virginians—not pandering to billion-dollar, corporate special interests.  If we want to grow our economy, let’s invest in our workforce.  Our schools, colleges and universities need to ensure that our young people have the education and skills needed to attract 21st century jobs to this state.  That’s done by increasing our education budget—not by cutting it while handing corporate billionaires a court we don’t need.  Our kids shouldn’t take a backseat to CEOs.

Tell state lawmakers West Virginia doesn’t have money to burn!  Sign our petition!

We’ve heard the story of David and Goliath since we were children.  Goliath was the powerful champion of the Philistine army, clad head to toe in brass armor and carrying several weapons.  His shield bearer walked in front of him.  For 40 days, he dared the Israelites to send someone forward to challenge him.  He believed that he was invincible and that his power was absolute.  Men cowered and hid, afraid of Goliath’s insults and threats—until he was challenged by David, a young man with no armor and armed only with a simple slingshot.  Goliath mocked him.

“’Am I a dog that you come at me with sticks?’  And the Philistine cursed David by his gods . . . ‘Come here, and I will give your flesh to the birds of the air and the beasts of the field.’”

David replied, “’You come against me with sword and spear and javelin, but I come against you in the name of the Lord Almighty . . . This day the Lord will hand you over to me, and I’ll strike you down.’” (1 Samuel 17: 43-46)

With a single stone hurled from his slingshot, David defeated Goliath.

It’s a story that plays out every single day in our courtrooms when a West Virginia consumer, worker or small business owner goes up against the wealthiest and most powerful corporations in the world.  Those corporations have their great wealth, political power and an army of lawyers.  West Virginians have only their 7th Amendment right to trial by jury and their attorney.

It appears unbalanced, but it’s not.  Our courtrooms are the one place where we are equal.  Justice is blind.  It doesn’t matter if you are rich or poor, if you are powerful or powerless.  Justice shows no fear and no favoritism.  All that matters in the courtroom is the evidence and the rule of law.  In our courtrooms, David can still defeat Goliath.

And Goliath’s not happy.  This is why corporate special interests continue their unrelenting attack on our civil justice system.  This is why they march out behind their shield bearers—corporate funded front groups like the American Tort Reform Association and Citizens Against Lawsuit Abuse.  They want to destroy any chance of the David’s in this world of being able to defeat them.

What are their weapons?  They lie about our state’s legal climate and create a phony crisis.  They attack our state in national media by calling us a “hellhole.”  They threaten legislators to pass the laws they want or face more attacks.  The laws they want take away David’s slingshot and stones, tying his arms behind his back, while providing them with even more powerful armor and weapons.  David’s are left with nothing, while Goliath becomes more powerful than ever before.

It’s time for West Virginians to stop cowering in fear and demand that the insults and threats stop.  We can no longer sit back and allow this to continue.  It is time for each one of us to stand up and fight.  Arm yourself with your simple slingshot—truth.  Truth about our legal climate.  Truth about our economy.  Truth about what these billion-dollar corporate interests really want, and why they’re willing to say and do anything to get it.  Be proud to stand with the David’s of this great state.

Goliath’s 40 days are up.

In 1958 President Dwight D. Eisenhower declared that May 1st would be Law Day in the United States.  It is a day to reflect on the role of law in our country and the important role it plays in protecting the safety and rights of every American citizen.

This year is a very special year.  It marks the 800th anniversary of the Magna Carta, the “Great Charter” that protects the civil liberties of English subjects and guarantees the two great pillars of democratic society—representative government and trial by jury. Chapter 39 of the document reads, “No man shall be taken, outlawed, banished, or in any way destroyed, nor will we proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land.”  As the American Bar Association noted, “Perhaps more than any other document in human history, Magna Carta has come to embody a simple, but enduring truth: No one, no matter how powerful, is above the law.”

The principles outlined in the Magna Carta, as well those in the 1689 British Bill of Rights, are the foundation of American democracy.  There are two places where each one of us is supposed to be equal—at the ballot box and in the courtroom.  That equality is a powerful right that should be championed by each of us regardless of political affiliation because it is the very definition of a free people. Indeed, John Adams wrote, “Representative government and trial by jury are the heart and lungs of liberty.  Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds.”

Sadly, in 2015, it is clear that equality at the ballot box is gone.  While we still adhere to “one person, one vote,” our political process is a billion-dollar quagmire. It is now cost prohibitive for many people to run for office, and candidates receive big money contributions. In the wake of the Citizens United decision, corporate special interests are spending millions in independent ad campaigns to influence voters.  The money is hidden behind front groups with misleading names, so we don’t know who is behind them.  In West Virginia’s 2014 elections, these independent expenditures reached record levels.  Even after the election, the money doesn’t go away because lawmakers come under the influence of special interest lobbyists.

That leaves trial by jury.  The right to trial by jury in criminal cases is preserved in the 6th Amendment.  Our right to trial by jury in civil cases is preserved in the 7th Amendment:

“In suits at common law, where the value in controversy shall exceed twenty dollars, the   right of trial by jury shall be preserved and no fact tried by a jury shall be otherwise reexamined in any court of the United States, that according to the rule of law.”

Often overlooked, the 7th Amendment ensures that we can challenge the government when our other rights are threatened.  If the government oversteps its boundaries and imposes unconstitutional laws, any citizen can challenge the government in the courtroom.

It also ensures that we can hold wrongdoers accountable when they harm us physically or financially.  Civil laws protect us from cheating and financial fraud, physical injury, dangerous products and toxins, violations of our civil rights and more.  They also protect local businesses when other businesses fail to meet contractual obligations, steal trade secrets, compete unfairly or otherwise harm them.  Our courts hold them accountable and compensate us for our losses.  More importantly, court decisions have resulted in changes that make us all safer including safer cars, a ban on lead products, safer toys, health care industry practices that protect patients, emergency exits, safe workplaces and more.

Not content with eliminating our equality at the ballot box, corporate special interests want to eliminate our access to the civil courts and right to trial by jury.  Why?  Because our courtrooms are the one place where every individual, worker or small business is equal to the world’s most wealthy and powerful corporations.  It is because of this that corporate special interests want to change state and federal laws through what they call “tort reform.”  These changes give corporations immunity and allow them to increase their profits at the expense of consumers, workers, policy holders, small businesses, the government and ultimately tax payers.  Our courtrooms are the one place corporations can be held accountable.  If there is no accountability, there is no safety.  This is why we must block corporate efforts to deny us our constitutional right to trial by jury.

On Law Day 2015, we need to commit ourselves to protecting our 7th Amendment rights with the same focus and determination used when we protect our 1st, 2nd or 4th amendment rights.  As former U. S. Supreme Court Chief Justice William Rehnquist (a justice appointed by President Nixon and made chief justice by President Reagan) noted, “The right to trial by jury in civil cases at common law is fundamental to our history and jurisprudence. A right so fundamental and sacred to the citizens should be jealously guarded.”

Help Protect Your Seventh Amendment Rights Today!

Our 7th Amendment reads, “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved and no fact tried by a jury shall be otherwise reexamined in any court of the United States, than according to the rule of law.”   This right to trial by jury is one of the most fundamental rights we have as Americans. Often overlooked, it is the one right that ensures that we can challenge the government when other rights are threatened and we can hold wrongdoers accountable when they harm us physically or financially.

Our civil courts keep us safe and hold those who hurt us accountable. Our civil courts ensure that when we are harmed physically or financially that we can receive justice—even when taking on the most wealthy and powerful individuals, companies and the government. Our courtrooms are the one place where we are all equal. Civil laws protect us from cheating and financial fraud, physical injury, dangerous products and toxins, violations of our civil rights and more. They also protect our businesses when other businesses fail to meet contractual obligations, their trade secrets are stolen, unfair competition, etc. Our courts hold these wrongdoers accountable and compensate us for our losses. This ensures that the financial burden is placed with the responsible party, not shifted onto other businesses and taxpayers. More importantly, court decisions often lead to changes that make us all safer. Our courts have led to safer cars, a ban on lead products, safer toys, health care industry practices that protect patients, emergency exits from buildings, safe workplaces and so much more. Why? When wrongdoers know they can be held accountable, they are more likely to be responsible. When there is no accountability, there is no safety.

Our civil courts protect us from government abuses. If the government oversteps its boundaries and imposes unconstitutional laws or threatens our rights, the one place where the average citizen can challenge the government is in our courtrooms. Why? Because in our courts, you are equal to the government itself. If you don’t have access to our civil courts, there is nothing to stop the government from trampling our constitutional rights—even those preserved in the Bill of Rights. Our government can run unchecked and unchallenged. That’s the real meaning behind Shakespeare’s line, “First let’s kill all the lawyers” (Henry VI, Part II). If there are no lawyers and we don’t have access to our courtrooms, we can’t hold the government accountable.

Our civil courts are the basis for the free market. A free market economy is central to our economic freedom. Businesses that cheat or cut corners get an unfair advantage over their responsible competitors. West Virginia’s courts discourage these abuses by holding bad businesses accountable financially. The costs for their bad behavior should not be shifted to responsible businesses and taxpayers. The court system is local and efficient, and it reduces the need for excessive and expensive government regulation. As Tea Party founder Judson Phillips stated, “The free market is wonderful. It encourages good behavior and punishes bad behavior. The civil court system is part of the free market.”

Former U. S. Supreme Court Chief Justice William Rehnquist said, “The right to trial by jury in civil cases at common law is fundamental to our history and jurisprudence. A right so fundamental and sacred to the citizens should be jealously guarded.”

Who’s ready to stand guard and protect our rights and access to our courts? Send your email to wvjusticeforall@wvaj.org and join the fight!

I love the holidays. The holidays mean good times with family and friends, fun parties, great food, presents, plays and cantatas, The Nutcracker and working with local charities to ensure that every family has a good holiday.

For West Virginia, the holiday season means something else—it’s once again time for our state to be attacked unfairly, for our economic development efforts hampered and to be called a “hellhole” in the media. It comes from a front group called the American Tort Reform Association. ATRA “members are largely Fortune 500 companies with a direct financial stake in restricting lawsuits.” (Center for Justice and Democracy). Those CEOs have probably never even set foot in West Virginia. What’s worse is that the attack comes in ATRA’s so-called “Judicial Hellhole” report, which has been widely discredited by the media and others.

Just how invalid is this wannabe “study?” Even its authors admit that it’s garbage! In 2007, the New York Times reported that “the question is whether the report’s arguments make sense, are supported by evidence and are applied evenhandedly. Here the report falls short . . . It has no apparent methodology.” In response, ATRA admitted that “we have never claimed to be an empirical study.” (New York Times, December 24, 2007)

So what’s the point? It’s part of a PR campaign to scare our lawmakers into passing laws that limit your 7th Amendment rights and access to the civil justice system. In her article “Judicial Hellholes, Lawsuit Climates and Bad Social Science,” Southern Methodist University Dedman School of Law Professor Elizabeth Thornburg writes:

“The explicit goal [of the Hellhole Report] is to appeal to the public as voters, to scare state politicians into making pro-defendant changes in the law in order to make the label go away, and to get rid of judges whose rulings made ATRA members unhappy. Judicial Hellholes are selected in whatever way suits ATRA’s political goals. The choice is not based on research into the actual conditions in the courts.” (West Virginia Law Review, Vol. 110 No. 3)

Rather than reading this bogus analysis of West Virginia’s legal system, let’s examine the real facts about our court system.

Despite claims made by ATRA and its allies, other corporate front groups like Citizens Against Lawsuit Abuse and the Institute for Legal Reform, there is no civil litigation explosion in our state. In fact, just the opposite is true. According to independent data from the National Center for State Courts’ Court Statistics Project, West Virginia ranks 40th among all 50 states and Washington D. C. in the number of lawsuits filed per capita.

How can we be a “judicial hellhole” when our filings are in the bottom 20 percent?

ATRA and its funders are also demanding that West Virginia waste more than $5 million in taxpayer dollars to establish an intermediate court of appeals. Why would we throw away that much money when our appeals are at the lowest level in 25 years? In 1999, there were 3,569 appeals filed. In 2012, that total was down to just 1,524 cases, a decline of more than 50 percent. According to the National Center for State Courts, our decrease is more than three times higher than the national average. (Supreme Court of Appeals of West Virginia: 2012 Statistical Report.)

How can we be a “judicial hellhole” when our appeals are declining three times faster than other states?

What is more troubling is that ATRA distributes its counterfeit study to media, lawmakers and corporate executives throughout the country. It claims that we’re a “judicial hellhole” and a bad place to do business. Again, the facts paint a very different picture.

First, when the National Federation of Independent Business surveyed its members in 2012, the “cost and frequency of lawsuits” ranked 71st out of 75 problems identified by business owners. It never appeared as a problem on the survey prior to 2004, and it’s never ranked higher than 64th.

In contrast, five of the top ten problems involve taxes. Here West Virginia succeeds. According to the West Virginia Development Office, we have reduced our business tax burden by more than $450 million over the last six years. The overall cost of doing business here is 14 percent below the national average—Moody’s reports that it’s the fourth best rate in the country.

The WVDO also reports that since 2005, more than $20 billion worth of new business investments have been made in West Virginia, including more than $6.2 billion just since 2010. That trend is continuing since just last month, the Philadelphia branch of the Federal Reserve identified West Virginia as one of only a handful of states experiencing the highest rate of economic growth—an economic “boom.”

That sounds like heaven, not a “hellhole.”

Despite ATRA’s best efforts to damage our national reputation, we’re still succeeding. My concern is how many jobs has West Virginia lost because decision makers have believed that this thing is legitimate? How much taxpayer money does our West Virginia Development Office have to spend to counter this misinformation about our state and its business climate?

It needs to stop NOW. West Virginians should stand together and tell ATRA to take its Judicial Hellhole report and go to . . . .