Feb. 6, 2009
Legislators Concerned About Perception of Fairness of West Virginia Judiciary
By Tony Rutherford
Huntingtonnews.net Reporter
Huntington, WV (HNN) – What began as a dispute regarding the potential impartiality (or lack thereof) of a West Virginia Supreme Court justice in reference to campaign donations will be argued in March before the nine justices of the United States Supreme Court.
West Virginia State Supreme Court Justice Brent Benjamin declined to step aside in a case involving Caperton Coal and Massey Coal. A Boone County jury awarded Caperton $50 million dollars for a broken coal supply contract.
When the case went to the West Virginia Supreme Court, the Court reversed the verdict. However, photographs turned up of Massey Energy Don Blankenship vacationing in Monaco with his lifelong friend, Justice “Spike” Maynard. Maynard stepped down but Benjamin who received about $3 million dollars through a Massey organization (“For the Sake of the Kids”) declined to step down.
As pressure mounts prior to the Washington, D.C. oral arguments, Benjamin in a lengthy opinion finally stepped aside.
Legislators have mixed opinions about a proper method for altering the perception of unfairness that now has the West Virginia judicial system in the national spotlight.
Delegate Doug Reynolds and Del. Kevin Craig favor a legislative solution, but, Sen. Evan Jenkins who sits on the judiciary committee questions whether the legislative branch would fall into a separation of powers quagmire.
Sen. Jenkins explained that “under our judicial code of ethics, recusal standards are completely within the discretion of each justice. The justice is supposed to make a decision whether or not he or she believes there would be an appearance of impropriety or influence.”
Interestingly, as briefs flow into the Clerk of the United States Supreme Court most do not support Benjamin’s refusal to step down. Now, Benjamin who previously, in Jenkins’ words, “staunchly defended his ability to decide impartially the Massey case has now recused himself,” Jenkins said. As of February 5, five friend of the court briefs support Benjamin’s non-recusal, but most argue that he should have stepped aside.
Since the case has drawn attention to West Virginia’s judicial election process, Reynolds told HNN that Gov. Manchin will sponsor a review of the judiciary. Reynolds has heard that former U.S. Supreme Court Justice Sandra Day O’Connor will look at the current system which has judges chosen in partisan elections. Although federal judges are appointed (for life), Reynolds explained “there’s politics in both. A confirmation hearing on a federal judge can become very heated [and] outside the scope of the query.”
Before committing to a position on election versus appointment, Reynolds will wait to study the governor’s anticipated inquiry. “We definitely need to look at it [the judicial election process].”
Del. Kelli Sobonya does not need to wait for a report, she’s already on record for “non-partisan election of judges.”
And Del. Kevin Craig told HNN, “the time is right to look at the way we select our judges and have serious dialogue.
As for a judge disqualifying himself from a case in which there may be the perception of bias (legally known as recusal), Reynolds indicated the current process has “a chilling effect” on attorneys considering such a strategy. “If I think I have a judge who is not friendly to my cased or may have some tie with the other side, I don’t [usually] ask for it.” The request for recusal “implies you’re not going to be fair and [if the judge does not step down] you’re much more likely to get an unfair [outcome].”
During the last legislative session, Reynolds introduced a bill that would allow an attorney to immediately appeal a judge’s decision not to step aside. Under his proposal, the West Virginia Bar Association would appoint a three judge panel. “If there was an interlocutory [option], a three judge panel would look at it” before the case goes to trial. Reynolds believes, if the review panel existed, attorneys would be more likely to ask for a recusal “whenever they see a backwoods justice situation.”
Unlike most states, West Virginia does not have an automatic right to appeal. Once decided in Circuit Court, the losing party petitions the West Virginia Supreme Court for review. The state’s highest court, like the U.S. Supreme Court, hears only a fraction of the cases presented for review. Although the state’s judicial scheme has been upheld as constitutional, “the fact that you can get a bad result and have no right to have someone else look at it, strikes most people as unfair,” Reynolds explained.
For instance, “We don’t have a right to appeal a murder case where people [can] spend life in prison. We may be the only state that does not have mandatory review,” Reynolds said.
Del. Craig, though, believes “civil side business questions” have more complexity than criminal law. While “not yet committed” to an intermediate appellate court, he remains open to other options, which would incorporate what he termed “better civil case expertise.”
As for the election of judges, Craig would like to hear insight from the judicial association and the bar association. He speculated on , perhaps, “a selection system where a judge would be put forward by a bar committee and selected by the governor” could be workable. To allow the voters input, he suggested the inclusion of a “recall referendum” a few years down the road for removal of an appointee.
But, these thoughtful proposals could all be moot.
“I am not sure whether under our separation of powers [clause] whether we statutorily can change. The [West Virginia ] Supreme Court that runs the judicial branch of government is very, very protective of their independence. I think we would find ourselves passing legislation only to have the court quickly strike it down as unconstitutional,” Jenkins said.
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Legislators Concerned About Perception of Fairness of West Virginia Judiciary
By Tony Rutherford
Huntingtonnews.net Reporter
Huntington, WV (HNN) – What began as a dispute regarding the potential impartiality (or lack thereof) of a West Virginia Supreme Court justice in reference to campaign donations will be argued in March before the nine justices of the United States Supreme Court.
West Virginia State Supreme Court Justice Brent Benjamin declined to step aside in a case involving Caperton Coal and Massey Coal. A Boone County jury awarded Caperton $50 million dollars for a broken coal supply contract.
When the case went to the West Virginia Supreme Court, the Court reversed the verdict. However, photographs turned up of Massey Energy Don Blankenship vacationing in Monaco with his lifelong friend, Justice “Spike” Maynard. Maynard stepped down but Benjamin who received about $3 million dollars through a Massey organization (“For the Sake of the Kids”) declined to step down.
As pressure mounts prior to the Washington, D.C. oral arguments, Benjamin in a lengthy opinion finally stepped aside.
Legislators have mixed opinions about a proper method for altering the perception of unfairness that now has the West Virginia judicial system in the national spotlight.
Delegate Doug Reynolds and Del. Kevin Craig favor a legislative solution, but, Sen. Evan Jenkins who sits on the judiciary committee questions whether the legislative branch would fall into a separation of powers quagmire.
Sen. Jenkins explained that “under our judicial code of ethics, recusal standards are completely within the discretion of each justice. The justice is supposed to make a decision whether or not he or she believes there would be an appearance of impropriety or influence.”
Interestingly, as briefs flow into the Clerk of the United States Supreme Court most do not support Benjamin’s refusal to step down. Now, Benjamin who previously, in Jenkins’ words, “staunchly defended his ability to decide impartially the Massey case has now recused himself,” Jenkins said. As of February 5, five friend of the court briefs support Benjamin’s non-recusal, but most argue that he should have stepped aside.
Since the case has drawn attention to West Virginia’s judicial election process, Reynolds told HNN that Gov. Manchin will sponsor a review of the judiciary. Reynolds has heard that former U.S. Supreme Court Justice Sandra Day O’Connor will look at the current system which has judges chosen in partisan elections. Although federal judges are appointed (for life), Reynolds explained “there’s politics in both. A confirmation hearing on a federal judge can become very heated [and] outside the scope of the query.”
Before committing to a position on election versus appointment, Reynolds will wait to study the governor’s anticipated inquiry. “We definitely need to look at it [the judicial election process].”
Del. Kelli Sobonya does not need to wait for a report, she’s already on record for “non-partisan election of judges.”
And Del. Kevin Craig told HNN, “the time is right to look at the way we select our judges and have serious dialogue.
As for a judge disqualifying himself from a case in which there may be the perception of bias (legally known as recusal), Reynolds indicated the current process has “a chilling effect” on attorneys considering such a strategy. “If I think I have a judge who is not friendly to my cased or may have some tie with the other side, I don’t [usually] ask for it.” The request for recusal “implies you’re not going to be fair and [if the judge does not step down] you’re much more likely to get an unfair [outcome].”
During the last legislative session, Reynolds introduced a bill that would allow an attorney to immediately appeal a judge’s decision not to step aside. Under his proposal, the West Virginia Bar Association would appoint a three judge panel. “If there was an interlocutory [option], a three judge panel would look at it” before the case goes to trial. Reynolds believes, if the review panel existed, attorneys would be more likely to ask for a recusal “whenever they see a backwoods justice situation.”
Unlike most states, West Virginia does not have an automatic right to appeal. Once decided in Circuit Court, the losing party petitions the West Virginia Supreme Court for review. The state’s highest court, like the U.S. Supreme Court, hears only a fraction of the cases presented for review. Although the state’s judicial scheme has been upheld as constitutional, “the fact that you can get a bad result and have no right to have someone else look at it, strikes most people as unfair,” Reynolds explained.
For instance, “We don’t have a right to appeal a murder case where people [can] spend life in prison. We may be the only state that does not have mandatory review,” Reynolds said.
Del. Craig, though, believes “civil side business questions” have more complexity than criminal law. While “not yet committed” to an intermediate appellate court, he remains open to other options, which would incorporate what he termed “better civil case expertise.”
As for the election of judges, Craig would like to hear insight from the judicial association and the bar association. He speculated on , perhaps, “a selection system where a judge would be put forward by a bar committee and selected by the governor” could be workable. To allow the voters input, he suggested the inclusion of a “recall referendum” a few years down the road for removal of an appointee.
But, these thoughtful proposals could all be moot.
“I am not sure whether under our separation of powers [clause] whether we statutorily can change. The [West Virginia ] Supreme Court that runs the judicial branch of government is very, very protective of their independence. I think we would find ourselves passing legislation only to have the court quickly strike it down as unconstitutional,” Jenkins said.
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