West Virginia Supreme Court of Appeals Justice Menis Ketchum today reversed course and decided to recuse himself in a pending case on damage caps in malpractice cases, an issue on which he had taken a stand during his election campaign. "Upon further reflection I am disqualifying myself" from the case MacDonald v. City Hospital, Ketchum wrote in a memorandum released by the clerk of the court.
We reported on Ketchum's initial refusal to recuse here on Friday. The issue in the case is the constitutionality of the state Medical Professional Liability Act, which limits non-economic damages to $500,000. The plaintiff's lawyer Robert Peck of the D.C.-based Center for Constitutional Litigation filed a motion for recusal last week after reading local West Virginia media reports that during the 2008 election, Ketchum had said of the law, "I will not vote to overturn it. I will not vote to change it. I will not vote to modify it."
In justifying his "non-recusal," Ketchum had invoked a 2002 ruling Republican Party of Minnesota v. White, in which the U.S. Supreme Court had said that "a judge's lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice."
In his statement today sent to the parties and to his fellow justices, Ketchum was critical of the BLT blog post, as well as the lawyers involved. Ketchum's statement:
"Upon further reflection, I am disqualifying myself from the above case. I strongly believe there is absolutely no legal basis for my disqualification. See Republican Party of Minnesota v. White, 536 U.S. 765 (2002). However, it appears to me that the lawyers who moved to disqualify me are attempting to create a 'firestorm' by assaulting the integrity and impartiality of West Virginia's Supreme Court.
"I promptly sent my disqualification response to the lawyers on September 23, 2010. The next day my response appeared in a Washington internet blog. (See copy attached.) How did a blog so quickly get my disqualification memorandum which was sent only to the lawyers in the case? Why is it newsworthy that a West Virginia judge previously exercised his right of Freedom of Speech?
"The blog did not have the decency to publish my First Amendment rationale as authorized by Republican Party of Minnesota v. White, or quote the legal rationale from White set out in my memorandum.
"I could care less if the blogs or press crucify me personally. However, I believe the lawyers are pulling the press's strings to place our Court in an unfavorable light. A lot of hard work has been accomplished to keep the Court out of the limelight since I took office on January 1, 2009. I don't want our Court to be publicly maligned by those with a 'win-at-all-cost' mentality. I disqualify myself from this case."