Last week, I wrote about Supreme Court of Appeals Justice Menis Ketchum’s refusal to recuse himself from MacDonald v. City Hospital, Inc., an appeal regarding the constitutionality of damages caps in a medical malpractice case, even though he had stated during his 2008 campaign that he would not vote to change, modify, or overturn the caps. The Blog of Legal Times wrote this post about Justice Ketchum’s decision.
At the beginning of this week, Justice Ketchum changed his mind and decided to recuse himself from the appeal. But what is more interesting than his decision is that he blamed The BLT and the plaintiffs’ lawyers for creating the situation that required his recusal. Here are Justice Ketchum’s memorandum explaining his decision, which referenced The BLT’s post about his original refusal to recuse himself, and the Court’s order reflecting his recusal.
Here is The BLT’s post from Monday addressing his decision to recuse himself, which quoted his memorandum in its entirety.
I am not sure why Justice Ketchum criticized The BLT or the plaintiffs’ lawyers, whom he accused of "attempting to create a ‘firestorm’ by assaulting the integrity and impartiality of West Virginia’s Supreme Court." He also questioned how the blog received his memorandum so quickly and the newsworthiness of his decision to exercise his right to free speech.
His comments are particularly puzzling when one reads the memorandum explaining his decision not to recuse himself, in which he thanked the plaintiffs and their counsel for raising the issue and thus giving him the opportunity to address the issue:
In conclusion, I am satisfied that my predisposition does not equate to an actual bias towards any of the parties in this appeal and therefore decline to disqualify myself from this appeal. That said, I appreciate the Petitioners raising this issue. I understand — from my Lawyer Ketchum hat — that it is never an easy decision to file a motion to disqualify a presiding judge. However, as Justice Ketchum, I would rather have someone raise any concerns as to my ability to be fair — such as those concerns raised by the Petitioners — and afford me an opportunity to address them (as opposed to leaving those concerns unstated).
I think Justice Ketchum’s consternation about the publicity his recusal received is rooted in his concern that the incident reflects badly on the Supreme Court of Appeals — although I don’t think it does.
What made the issue of his recusal newsworthy is that Justice Ketchum did not merely express an opinion during the campaign, but indicated unequivocally how he would vote on the very issue that is at the heart of the MacDonalds’ appeal. And in this situation, the plaintiffs were virtually obligated to seek his recusal, and he was correct to disqualify himself from the appeal.