McGraw's Record Is Of
One-sidedness
Justice McGraw is increasingly disagreeing with
the decisions of the other four justices on the court: seven in 2001, 13 in
2002, 24 in 2003 and 16 in the first six months of 2004. Justice McGraw
dissented from 20 decisions of the court in the period from January 2001 to July
2004, yet filed no opinion explaining why he had dissented. In the 16 cases in
which Justice McGraw was the sole dissenter in the period from January to July
2004, he gave no explanation of why he had dissented in nearly half of them.
Without an opinion, the soundness of the Justice
McGraw's dissents cannot be judged. Dissents without explanation diminish their
legitimacy. We can only speculate as to why Justice McGraw did not explain the
reasons for his dissents in so many cases in the first six months of this year.
One possible reason is that he wanted to side with one of the parties, but could
not come up with a plausible, legally principled explanation for doing so.
There can be no valid excuse for Justice McGraw's
failure to explain why he would have judged so many cases differently from the
other three or four justices.
As we are left to speculate why Justice McGraw
did not explain the reasons for his dissents in so many cases, we are also left
to speculate what the reasons, if he had reasons, for his dissents may have
been.
Of the cases in which Justice McGraw dissented in
the period of January 2001 to July 2004, 17 were in employment cases, six in
medical malpractice cases, nine in insurance cases, and six in tort cases.
Now, consider this: Justice McGraw disagreed with
how the court ruled and would have had the justices rule against the employer in
all 17 of the employment cases, against the physician or hospital in all six of
the medical malpractice cases, against the insurer in all nine of the insurance
cases, and against the defendant in all six of the tort cases.
Warren McGraw's record as a justice of the court
would certainly discourage employers, doctors and insurers from coming into, or
remaining in, the state. That is not in the interest of the people of West
Virginia. We need employees, we need doctors, and we need insurers.
Supporters of Warren McGraw as a candidate often
tout a tired cliche that an out-of-state business
lobby is trying to get rid of him because he won't do their bidding, and that
he, McGraw, believes justice is for everyone, not the special interests.
Justice Warren McGraw's record on the state
Supreme Court does not support the claim that he believes in justice for
everyone. He has all too often set himself apart from the other justices in
voting against employers, physicians, hospitals, insurers and defendants in tort
cases.
He even votes against them when he apparently
can't come up with any plausible reason for doing so -- as evidenced by the many
cases in which he dissented but failed to explain why he has done so.
Is it any wonder that employers, physicians,
hospitals and defendants in tort cases line up against the reelection of Justice
McGraw?
Is it because they want a justice who will
slavishly do their bidding?
Or is it simply that they want a justice who will
give them a level playing field, an opportunity to prevail on the basis of law
and principle?
McElwee
is a