This article originally provided by The Herald-Dispatch

January 29, 2008

Senate debates merits of appointed versus elected judges

By The Associated Press

CHARLESTON, W.Va. (AP) _ Lawmakers are exploring ways to counter even the appearance that West Virginia courts are for sale.

Amid recent questions over the fairness of some Supreme Court justices, senators on Tuesday debated whether nonpartisan elections would help improve the courts' reputation for impartiality.

That measure has been pushed by groups like the West Virginia Chamber of Commerce. It is a session goal of House Republicans and other lawmakers.

Senate Judiciary Chairman Jeffrey Kessler, though, dismissed that idea as unrealistic Tuesday. During remarks delivered on the Senate floor, he passed out a Wall Street Journal editorial to make his point with colleagues. The editorial criticized the Missouri Supreme Court's process for filling vacancies, and said it should be replaced with elections.

"You can't take the politics out of the process," the Marshall County Democrat said.

However, Kessler acknowledged that some change may be needed in how the state chooses judges. He suggested the public financing of judicial elections, as lawmakers have considered so-called "clean elections" measures in prior sessions.

West Virginia is one of seven states to elect all of its judges on a partisan basis, according to the American Judicature Society. Opponents of partisan election argue it damages the state's reputation, making it seem as if political considerations outweigh dispassionate application of the law.

"When I go into the West Virginia court system, I don't have a clue what to expect, because a lot of times the law doesn't mean anything," said Sen. John Yoder, R-Jefferson and a lawyer.

Before a clean elections bill for the judiciary is considered, Sen. Evan Jenkins said West Virginia should consider following the example of other states and discard partisan elections.

"This is clearly an area where West Virginia is out of step," the Cabell County Democrat said.

A call to the state's judicial association seeking comment was not immediately returned Tuesday.

The problem, contended Yoder, is not partisanship so much as the influence of money. When arguing a case, he said, he doesn't want to worry about how much the other lawyer contributed to the presiding judge's last campaign.

Campaign contributions are a frequent source of concern in states with partisan judicial elections, according to West Virginia University School of Law professor Caprice L. Roberts.

"And elections can get heated with inside and outside money coming in," Roberts said. "It becomes harder to maintain independence, and the appearance of independence, which is so important."

Roberts touted several nationwide studies to advocate that West Virginia appoint its judicial officers, rather than elect them.

"Appointment methods are not flawless and are not free from politics," she said. "But given the serious questions that seem to be raised about judicial independence, consideration of a different model is ripe."

In a presentation to lawmakers last week, though, WVU political science professors Richard Brisbin and John Kilwein said a switch to nonpartisan elections or appointed judges would likely do little to erode the influence of money and politics on the selection process.

Judicial ethics has pushed to the forefront of state politics this year because of circumstances involving the state Supreme Court and Massey Energy Co.

Chief Justice Elliott "Spike" Maynard recused himself from two cases involving the coal producer after European vacation photos surfaced showing the justice in the company of Massey president, chief executive officer and chairman Don Blankenship.

Harman Mining Co., one of the parties suing Massey, has also raised questions about the impartiality of Justice Brent Benjamin. Harman cites the millions Blankenship spent on ads to help the Republican get elected in 2004.

As several senators pointed out Tuesday, that issue has spread beyond the state's borders. Best-selling author of legal thrillers John Grisham made reference to it on NBC's "Today Show" on Tuesday. He was promoting a novel in which the owner of a chemical company tries to avoid paying a court settlement by getting a friendly judge elected to the Mississippi Supreme Court.

"It happened a few years ago in West Virginia," Grisham said, according to a transcript of the show. "A guy owned a coal company. He got tired of getting sued. He elected his guy to the Supreme Court. It switched 5-4 back his way and he didn't worry about getting sued."

Benjamin has twice rebuffed Harman recusal petitions. He has also ruled against Massey in at least three cases since joining the court, records show.

Those included two challenges to West Virginia's severance tax that together involved more than $505 million owed by Massey and other coal operators.

Benjamin helped form the 3-2 majority that reversed a $76.3 million judgment won by Harman against Massey, then voted last week to vacate that November decision and rehear the appeal.