Justice Ketchum: A Practical Approach To Law by David A. Stackpole1 Farrell, White & Legg PLLC 1 David A. Stackpole is an associate at Farrell, White & Legg PLLC. Mr. Stackpole‟s interest in appellate work, including the effect that each justice has upon the Court, began while he was a law student at the West Virginia University College of Law. During his time in law school, Mr. Stackpole argued before the Supreme Court of Appeals of West Virginia as part of a Moot Court Competition where he was awarded the Baker Cup. Mr. Stackpole‟s passion for appellate work has continued to grow since joining Farrell, White & Legg PLLC, where he is part of the Appellate Advocacy team. Mr. Stackpole‟s appellate work includes drafting amicus curiae briefs. Farrell, White & Legg PLLC has a long history of appellate work before the Supreme Court of Appeals of West Virginia from its office in Huntington, West Virginia. © David A. Stackpole http://www.farrell3.com {F0317960.1 } 1 INTRODUCTION It is important to know your audience. Whether your audience is a particular Circuit Judge, a jury, or an appellate court, knowing your audience can make the difference in your ability to be persuasive. This article is an attempt to help acquaint the reader with the newest member of the Supreme Court of Appeals of West Virginia. On November 4, 2008, Justice Menis Ketchum was elected to a twelve year term on the Supreme Court of Appeals of West Virginia.2 He was born in 1943.3 He attended Ohio University and West Virginia University College of Law.4 From 1967 until his election in 2008 to the Supreme Court of Appeals of West Virginia, Justice Ketchum practiced law in Huntington, West Virginia at the firm of Greene Ketchum.5 As of April 15, 2011, Justice Menis Ketchum has authored fifty-five (55) opinions as a justice on the Supreme Court of Appeals of West Virginia. In thirty-one (31) of the opinions, Justice Ketchum wrote the majority opinion; in seventeen (17) of the opinions, Justice Ketchum wrote a dissenting opinion; and in nine (9) of the opinions, Justice Ketchum wrote a concurring opinion.6 Although all of a justice‟s opinions are important in understanding his or her judicial philosophy, the scope of this article is limited to Justice Ketchum‟s dissents, not including his 2 Justice Workman was also elected to a twelve year term at the same time. Because Justice Workman has been on the Court previously, her judicial approach is well known. This article focuses on Justice Ketchum as the newest member of the Court. 3 Justice Ketchum‟s bio at http://www.state.wv.us/wvsca/ketchum.htm (last accessed Dec. 22, 2010). 4 Id. 5 Id. 6 At first blush, it may appear that I have made a mathematical error (31 majority opinions + 17 dissenting opinions + 9 concurrences should equal 57 total opinions). However, in two (2) opinions, Justice Ketchum concurred in-part and dissented in-part and so, I have included the two (2) opinions in both categories (concurrences and dissents). This footnote is dedicated to my seventh grade math teacher who always made me “show my work.” {F0317960.1 } 2 two partial dissents/partial concurrences. While a justice‟s opinions when writing for the majority may provide insight as to that justice‟s judicial philosophy, it is a justice‟s dissents that set him or her apart from the majority and helps to distinguish his or her judicial philosophy. This article will walk through each of Justice Ketchum‟s dissents in an attempt to determine what sets Justice Ketchum apart from the majority and will then draw conclusions from the same. FIFTEEN DISSENTS IN LESS THAN FIVE TERMS To date, Justice Ketchum has authored fifteen (15) dissents, not including his two (2) partial dissents/partial concurrences (Spring Term 2009 – 1 dissent; Fall Term 2009 – 1 dissent; Spring Term 2010 – 7 dissents; Fall Term 2010 – 4 dissents; Spring Term 2011 – 2 dissents as of April 15, 2011). A. Spring Term 2009 Justice Ketchum authored one (1) dissent during the spring term of 2009. The dissent was in a lawyer disciplinary matter. In Lawyer Disciplinary Bd. v. Brown,7 the majority annulled an attorney‟s law license because of his misappropriation of client funds in the amount of $7,980.00.8 The attorney argued unsuccessfully that his cocaine addiction was a mitigating factor, similar to alcohol addiction.9 Justice Ketchum would have applied the Lawyer Disciplinary Board‟s recommendation as the attorney “has since sought treatment and has straightened up his life.”10 7 223 W. Va. 554, 678 S.E.2d 60 (2009). 8 Brown, 223 W. Va. at 561, 678 S.E.2d at 67. 9 Brown, 223 W. Va. at 559-60, 678 S.E.2d at 65-6. 10 Brown, 223 W. Va. at 562, 678 S.E.2d at 68. {F0317960.1 } 3 B. Fall Term 2009 Justice Ketchum authored one (1) dissent during the fall term of 2009. It was in a civil case. In L.H. Jones Equip. Co. v. Swenson Spreader LLC,11 the majority interpreted the West Virginia Farm Equipment Dealer Contract Act as extending “to „dealers‟ and „suppliers‟ of „farm, construction, industrial or outdoor power equipment or any combination.‟”12 Justice Ketchum‟s dissent focused on the fact that Swenson Spreader does not deal in farm equipment, but rather makes salt spreaders for highway use.13 Justice Ketchum reasoned that because the title of the Act‟s title only mentions farm equipment, a company that makes salt spreaders for use on the highways is not put on notice that the statute applies to salt spreaders: [I]t is difficult to conceptualize why a person searching through our statutory indexes to determine the law relating to their highway salt spreading business would understand that an Act titled “Farm Equipment Dealer Contract Act” could apply to highway salt spreaders. I submit that Swenson‟s lawyers will now have to read this State‟s entire chapter entitled and indexed as “school law” to be sure that there is no paragraph within relating to highway salt spreaders.14 C. Spring Term 2010 Justice Ketchum authored seven (7) dissents during the spring term of 2010. Three (3) dissents were in criminal cases, one (1) was a petition for a writ of prohibition, and three (3) were in civil cases. In State ex rel. Marshall County Comm'n v. Carter,15 the majority denied a writ of prohibition in an employment discrimination matter involving a blind man who applied for an 11 224 W. Va. 570, 687 S.E.2d 353 (2009). 12 L.H. Jones Equip. Co., 224 W. Va. at 576, 687 S.E.2d at 359. 13 Id. 14 L.H. Jones Equip. Co., 224 W. Va. at 576-77, 687 S.E.2d at 359-60. {F0317960.1 } 4 advertised telecommunications operator position.16 The man alleged discrimination and sought audio recordings of the executive session of the commission in discovery.17 The commission claimed privilege based on [1] attorney/client privilege, [2] work product doctrine, and [3] executive session privilege.18 The ALJ ordered the audio recording to be produced for in camera inspection.19 The commission sought a writ of prohibition for the in camera inspection.20 The majority found that an in camera inspection was proper, even for an ALJ whose function involves findings of fact, for claims of attorney/client privilege and work product doctrine.21 The majority also refused to recognize an executive session privilege.22 Justice Ketchum dissented on the basis that he would have found that an executive session privilege existed.23 He reasoned “that governmental bodies cannot operate effectively if their executive session (closed session) discussions are subject to lawsuits”; that if the legislature intended to the executive session to be discoverable, then minutes would be required; that “no vote or action can be taken in executive session”; and that a person should be equitably estopped where he or she failed to request an open meeting.24 15 225 W. Va. 68, 689 S.E.2d 796 (2010). 16 Carter, 225 W. Va. at 70, 689 S.E.2d at 798. 17 Id. 18 Carter, 225 W. Va. at 72-6, 689 S.E.2d at 800-04. 19 Carter, 225 W. Va. at 71, 689 S.E.2d at 799. 20 Id. 21 Carter, 225 W. Va. at 72-4, 689 S.E.2d at 800-02. 22 Carter, 225 W. Va. at 76, 689 S.E.2d at 804. 23 Carter, 225 W. Va. at 77-8, 689 S.E.2d at 805-06. 24 Id. {F0317960.1 } 5 In State v. Rash,25 the majority found that joinder of claims was proper despite the extended time frame (eleven years) between the alleged sexual misconduct involving the first victim and the alleged sexual misconduct involving the second victim.26 The defendant unsuccessfully argued that severance was proper because of the eleven year time period between the alleged acts and because joinder would was unfairly prejudicial.27 Justice Ketchum dissented based on the amount of time between the alleged acts.28 His concern is that a jury may view the evidence as demonstrating that the defendant is a “bad man” and convict him on that basis: “[p]rosecutors should be required to prosecute a defendant for crimes committed but not allowed to throw in „kitchen sink‟ charges which are not temporally related in order to show bad character.”29 In Roth v. Defelicecare, Inc.,30 the Complaint set forth allegations of an employee who arrived at work to find her boss and another employee in a state of undress and “in a compromised position.”31 The Complaint further alleged that she was instructed to tell no one about what she saw and that she complied with that request, but was fired nonetheless for the style of her clothing and her hair color.32 The majority overturned the lower court‟s dismissal for failure to state a claim and held that the plaintiff would need to “develop sufficient facts in order ultimately prevail” on her claims of hostile work place, wrongful termination, employment 25 ___ W.