A West Virginia Supreme Court justice has refused to take himself out of a case involving the state cap on non-economic damages, even though he pledged during his election campaign that he would never vote to overturn the law imposing the cap.
Justice Menis Ketchum of the state Supreme Court of Appeals issued a statement Thursday declining a party’s request that he recuse, asserting that “I am satisfied that my predisposition does not equate to an actual bias towards any of the parties in this appeal.”
Ketchum’s statement relates to the pending case of MacDonald v. City Hospital, a direct challenge to the constitutionality of the state Medical Professional Liability Act, which limits punitive damages in malpractice suits to $500,000. The case will be argued in January.
During his election campaign in 2008 Ketchum, when asked about the law, made this statement, according to local West Virginia media: “I will not vote to overturn it, I will not vote to change it. I will not vote to modify it.”
Robert Peck of the D.C.-based Center for Constitutional Litigation, lawyer for the plaintiffs in the case, moved for Ketchum’s recusal, asserting that Ketchum’s campaign statements “indicate clear prejudgment of this case,” in violation of judicial canons. The state code of judicial conduct prohibits candidates from making “pledges or promises of conduct in office” and making 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 his statement Ketchum did not deny his campaign pledge or that he had a preconceived view of the issue. “I disagree that having a preconceived view on the MPLA caps is grounds for disqualification.” Ketchum continued, “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.”
Peck said he was “amazed” to learn of Ketchum’s campaign statement, characterizing it as a clear case of prejudging the issue before the court. Peck said there is no way to appeal Ketchum's refusal to step aside in the case.
Hofstra University School of law professor James Sample, an expert on judicial recusals, said, “The specificity of referring to the actual statute involved in the case would lead any litigant on the other side to question whether his arguments would even be heard.”
A decision by another judge on the West Virginia high court not to recuse in a case involving one of his campaign donors was challenged all the way to the U.S. Supreme Court. The Court ruled last year in Caperton v. Massey Coal Co. that the appearance of conflict was so extreme that the judge's continued presence in the case threatened due process rights.