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Judicial Reforms Start in Slow Motion
Posted Thursday, November 19, 2009 ; 06:00 AM | View Comments | Post Comment
Updated Wednesday, November 18, 2009; 09:11 PM

West Virginia is examining its judiciary, and while this may be a good thing, don't expect change overnight.

Story by Dan Page
Email | Bio | Other Stories by Dan Page

CHARLESTON -- West Virginia is examining its judiciary.

I'm for it, but I confess that I expect change to occur slowly. In fact, I'm sure some people, including some lawyers, are reluctant to see much change at all.

The governor's Independent Commission on Judicial Reform delivered its report on time, and it was a measured, cautious effort. The complexity of changing the way we deliver justice deserves careful consideration. Based on the commission's work, that's what we'll get.

After receiving the report from his hand-picked commission, Gov. Joe Manchin will give the Legislature the opportunity to write some of the commission's recommendations into law.

Perhaps the Legislature will follow the commission's advice and give parties that have been ordered to pay punitive damages an automatic right to appeal. That would be a significant step.

We probably will have to wait to see any immediate and real changes in the way we select judges. I don't fault the commission for its cautious approach.

I see no perfect path to selecting judges. Each method has its supporters and detractors. Money and old-fashioned politics affect partisan elections -- the way West Virginia voters choose their judges today. But can we or should we try to reduce the influence of money in judicial elections? And how would those efforts square with freedom of speech?

Many believe nonpartisan election would be an improvement. Some support merit selection of judges, but others are leery of a process driven by the executive branch.

I have long believed that voters do not pay as much attention to judicial elections as they do to many national, statewide, county and even municipal elections that appear on the ballot. Sadly, ballot fatigue wears down voters, and judicial elections are an after-thought.

Slate-makers, special-interest groups, savvy campaign strategists and other political operatives have influence. The results can be disastrous, especially when we're dealing with 12-year judicial terms on the state Supreme Court of Appeals and eight-year terms for circuit judges.

A couple of voter lapses, and we can have a real mess on our hands. Surely we have learned the court is no place for latter-day Robin Hoods. I have had conversations with West Virginia business owners who have felt as if they've had their pockets picked in our state's courtrooms. I have no doubt that balanced and strict adherence to the law is important to our economic future, and fairness starts with our selection of judges.

Because I respect the law and marvel at its nuances and complexity, I appreciate the approach the governor's commission has taken. Many of us instinctively want to see immediate change that tilts toward our own particular biases, but that is just the sort of gut reaction that creates chaos and bad law. Let's take our time and get it right.

* * *

The clock is ticking on the West Virginia Department of Environmental Protection's plans to appeal a Logan County case in which a judge has ruled the state should grant Cabot Oil & Gas Corp. the right to drill gas wells in Chief Logan State Park.

This is the case in which the Lawson heirs -- descendants of the family that gave the Chief Logan land to the state in 1960 -- want to develop the gas under the park. The family made the gift but retained rights to the gas. That was the deal.

But the state has denied permits to develop the gas, and now the state has allies in its attempts to renege on the deal.

I have had the chance to speak and correspond with William V. DePaulo, an attorney who represents the Sierra Club, an intervenor in the case.

DePaulo said state law prohibits drilling in state parks. He added that the state, through the DEP, also has the right of eminent domain. That means it could claim the gas for the state as long as it compensates the owner for its value.

DePaulo suggested that a developer could use directional drilling by setting up a rig outside the park and drilling into the gas-bearing formation under the park. Such a tactic, he said, could mitigate a claim that a "taking" had occurred.

He acknowledged that the state may find that preserving the gas would be expensive.

But the city of Wheeling, whose park property overlies gas deposits, has a different approach. It recently approved developing those gas reserves. Such an arrangement could provide a significant financial benefit to the city.

Some park preservationists seem willing to commit other people's money to protect land that all of us own. They are not directly responsible for maintaining the tens of thousands of acres the state owns and preserves in state parks and forests. That costs money, and prospects for the state budget aren't bright.

The state Supreme Court will have a chance to sort this out. It may decide to allow Logan County Judge Roger L. Perry's ruling to stand. But if it finds against the Lawson heirs, I cannot imagine how the Legislature would feel about paying the owners of the Chief Logan gas to not develop what rightfully is theirs.

Dan Page is editor and publisher of The State Journal. His e-mail address is dpage@statejournal.com.

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