This Article originally provided by The Charleston Gazette

February 26, 2008

Conflict: Disturbing problem

To prevent rich individuals from using their wealth to sway elections, West Virginia law forbids any donor to give more than $1,000 to any candidate in any political race.

Previously, a glaring loophole existed: A donor could give millions to an outside Section 527 group, named for a portion of federal law, and the organization could buy smear ads to topple a public officeholder or praise ads to boost a challenger.

That's what happened in 2004 when Massey Energy's president pumped $3.5 million into the state Supreme Court contest that ousted former Justice Warren McGraw and installed new Justice Brent Benjamin.

The incident upset so many West Virginians that the 2005 Legislature passed a tough reform, imposing the same $1,000 limit on political contributions to Section 527 groups. The glaring loophole was plugged. But the law change was too late to reverse the 2004 election result.

Today, Justice Benjamin is at the center of a storm because he insists on presiding over Massey Energy cases, despite the fact that he was elected by a $3.5 million ad blitz funded by Massey's chief.

Two other justices - Elliott "Spike" Maynard and Larry Starcher - removed themselves from Massey cases because each man was seriously compromised. Their self-recusals were ethical and responsible. The actions boosted public confidence in the objective neutrality of West Virginia's highest court.

But Benjamin, equally compromised, won't follow their admirable course. Last week, he again filed court statements refusing to abstain from Massey cases, indicating that he can be impartial despite the $3.5 million push that put him on the bench.

Benjamin may be honest in this regard. Four times since 2005, he has voted against Massey's interest in cases. However, the ethics code for West Virginia judges requires them to step aside whenever their "impartiality might reasonably be questioned." Appearances are crucial to justice.

Suppose his vote helps Massey win a pending case. Wouldn't his involvement trigger an appeal to the U.S. Supreme Court, on grounds that the state court wasn't neutral?

Some legislators are so disturbed by the current situation that they're sponsoring a proposed amendment to the state constitution, to create a Judicial Recusal Commission to remove such judges.

Since the dilemma isn't being resolved voluntarily, and the court system's ethics committees aren't acting, passage of the amendment may be the only solution.