This article originally provided by The State Journal

February 7, 2008

Panel Proposed to Consider Recusal Requests

The Legislature is considering the creation of a Judicial Recusal Commission to hear requests for the removal of judges in certain cases.

Story by Beth Gorczyca Ryan

In the future, when judges, justices and magistrates are asked to recuse themselves, the decision on what to do may not come from the bench.

Instead, it may come from a state-appointed commission.

The state Legislature recently introduced resolutions in both chambers to create a three-person Judicial Recusal Commission. The commission would be made up of retired and active judges who would rule on whether any judicial authority -- be it at the magistrate court, circuit court or Supreme Court of Appeals level -- should step aside on a case.

"I'm a lawyer, and from my perspective it often comes up that it may be in the best interest of my clients to have a judge recuse himself or herself. But the question is, 'Do you even ask?'" said Delegate Doug Reynolds, D-Wayne, who was one of the sponsors of the resolution on the House side. "The judge may take it as an insult. ... And in many cases that chills people from asking for a recusal."

The issue of judicial recusals has grabbed a lot of headlines recently. A few weeks ago, Supreme Court Chief Justice Elliott "Spike" Maynard decided to recuse himself from an appeal being brought before the high court by Massey Energy after photos emerged of Maynard and Massey CEO Don Blankenship dining together while on vacation in Europe. Businessman Hugh Caperton, who filed the lawsuit being appealed, said the photos raised questions about whether Maynard could be unbiased when considering the appeal.

Maynard said he and Blankenship had been friends for decades. Both men grew up in Mingo County and socialized often in Charleston and elsewhere. He said that friendship had no effect on his vote to consider Massey Energy's appeal in the case, which included a $50 million verdict. That verdict now stands at about $75 million because of interest and penalties.

Instead, Maynard said he recused himself because the controversy caused people to question the validity of the court system. And he believed it was in everyone's interest for him to step aside.

Caperton also twice asked Justice Brent Benjamin to recuse himself from deciding the appeal because Blankenship donated a sizable amount of money to a political group that supported Benjamin for the Supreme Court. Benjamin refused both recusal requests.

Reynolds said his intention in sponsoring the resolution wasn't to get involved in the debate over whether Maynard should have stepped down. Instead, he said he sponsored the resolution because of what he sees happening in the court system's lower levels.

"I worry about it more from a litigant's prospective," he said.

He said most people in West Virginia enter the court system at the magistrate level. And when a person encounters a magistrate with whom he or she may have a history, it makes that person skeptical of the system.

"If someone gets screwed over in a $2,500 dispute, it will leave a bad taste in their mouth," he said.

But Delegate Mike Burdiss, D-Wyoming, who also sponsored the resolution, said he believes the Maynard recusal debacle did help to stimulate the measure.

"That brought this to the light ... that there is no place to go and seek redress," Burdiss said.

Under the House's version of the resolution, the governor would appoint three people who are all members of the bar to the commission. Each member would serve for a six-year term.

In times when one party believes a judge should be recused, the party would file an application with the commission, which then would issue a binding decision on whether the judicial official should step aside.

Reynolds said he doesn't expect the commission will become a reality this year because it is an election year, and two seats on the Supreme Court, including Maynard's, are up for election.

But he does hope the discussions taking place at the Capitol right now will carry over to next year. Hopefully then, he said, the commission can be formed.

Burdiss agreed that it may take longer than one session to establish the commission, but he said it is something the state really needs to look at.

But when asked whether he'd heard any comments about the bill from the West Virginia Judicial Association or judges individually, he said he had not.

He added that they may not comment because of it being "a separation of powers issue." But he didn't see it as a separation of powers conflict for the Legislature to create the judicial recusal commission.

And if other people did, he said, they were welcome to bring it up during debates on the resolution.

"That's what this whole process is about: Let's throw it out there for debate," he said.

Voter-Owned Elections

Citizens for Clean Elections P.O. Box 6753 Huntington, WV 25773-6753 304-522-0246