Era of activist judges may be ending

For years, activist appeals court judges and justices have made a mockery of the separation of powers to which they lay claim in preservation of their own authority.

But just before the general election, our state Supreme Court signaled those days may be over in West Virginia.

Separation of powers is one of the keys to our liberty as Americans. The legislative branch makes laws. The executive branch administers them and manages government. The judiciary ensures justice is done, right down to requiring the legislative and executive branches to obey state and federal constitutions.

Activist judges throw a monkey wrench into that machinery. Rather than stop where they should, at declaring some statutes unconstitutional, they advance into creating entirely new laws.

On Friday, Nov. 2, West Virginia Supreme Court justices had an opportunity to do just that. They rejected it.

The high court opinion released that day involved four separate cases over workers’ compensation claims. They had been filed by three coal miners and one metals industry employee. All their claims involved pneumoconiosis, frequently called black lung.

All four claims were rejected because they either were not filed within three years of the last day the workers were exposed to dust that can cause the disease or because they were not filed within three years of the workers being diagnosed with the malady.

Now, whether such a three-year limitation is morally right is debatable. If a worker develops pneumoconiosis and seeks workers’ compensation because of it, why should he or she be told to forget it because the claim wasn’t filed in time?

But the fact is that the three-year limit is a statutory one.

A majority of state Supreme Court justices pointed that out in rejecting the workers’ appeals. Just one justice, Margaret Workman, dissented. Justices Tim Armstead (who wrote the court opinion), Evan Jenkins, Elizabeth Walker and Paul Farrell (a circuit judge assigned temporarily to the high court) united in the opinion rejecting the workers’ appeal.

Understand that while we in the press tend to simplify reports on court rulings, they often are exceedingly complex, delving into any number of questions of the law. Armstead’s 20-page opinion did just that.

Still, the bottom line was that right or wrong, the law as enacted by the Legislature is the law. The state constitution offers no reason to overrule that particular statute.

In other words, separation of powers requires that if anyone is to grant exemptions from the three-year limit — or extend it — that someone has to be the state Legislature.

Time was when the state’s highest court might well have taken upon itself to declare the three-year limit just wasn’t fair and couldn’t be enforced.

Again, perhaps it isn’t fair. But under our system of government, that is for legislators to decide — and, if they decide wrongly in the minds of enough of their constituents, to be removed at the next election.

In fairness, it has to be noted that the move away from unconstitutional activism by the state Supreme Court has been under way for several years.

But, as a result of turmoil on the court — two justices resigned last summer and a third was suspended — the future was in some question. Just two justices (Walker and Workman) who were serving a few months ago remain on the court. Two entirely new ones, Armstead and Jenkins, were elected Tuesday (Farrell is filling in for suspended Justice Allen Loughry, who is likely to be removed).

The good news is that the new court seems to be rejecting activism entirely. Clearly, voters chose wisely in electing Armstead and Jenkins on Tuesday.

Activists appeals courts in the states and Washington did a favor to legislators, in some ways. Instead of dealing with tough issues such as West Virginia’s workers’ compensation rules, lawmakers could just defer to the courts.

Now, they may have to take the responsibility themselves.

Mike Myer can be reached at mmyer@theintelligencer.net.

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