State Bar To Review Judicial Elections

Messy matchup between Benjamin and McGraw cited

The Associated Press, Nov. 5, 2004

With the ugly state Supreme Court race over, a State Bar committee will proceed with a hotly debated study of whether West Virginia should change the way it selects its judicial branch. State Bar President Charles Love III had earlier agreed to have the 16-lawyer panel hold off its review until after the election. The committee’s chairman, John P. Bailey, hopes to schedule its first meeting in December.

“We will be sending out materials for all of our people to review,” Bailey said Thursday. “We would like to wrap everything up by spring.”

Magistrates, judges and the five Supreme Court justices campaign for election as candidates of political parties. Love has made changing the system a priority of his one-year term as president — and Bailey championed the issue as Love’s predecessor.

As a minimum move, Love advocates nonpartisan elections. Bailey, a Wheeling lawyer, favors replacing direct elections with some sort of appointment system. Both cite the messy matchup between Democratic Justice Warren McGraw and Charleston lawyer Brent Benjamin, the Republican victor.

“I don’t think anyone can seriously contend that this most recent Supreme Court election gives the ordinary citizen confidence in the court system,” said Bailey, who added that he endorsed neither candidate in the race.

But other advocates for changing the system include individuals and groups that contributed to the negative tenor of the recent McGraw-Benjamin race, which helped it earn national media attention.

The state Chamber of Commerce, for instance, ran ads blaming the court for much of West Virginia ’s economic ills. Don Blankenship, chairman, president and chief executive officer of Massey Energy Co. spent a reported $3.5 million on anti-McGraw and pro-Benjamin ads.

Blankenship and Benjamin himself seized on the campaign’s most incendiary issue, the court’s 3-2 ruling in March that allowed convicted child sex offender Tony Dean Arbaugh Jr. to remain on probation. McGraw did not write the decision, but helped form its majority, and differed bitterly with Benjamin and his allies over the allegations and implications of the case.

Benjamin, too, has endorsed the Bar committee.

“I think we need at least to move to nonpartisan election of judges, and get the politics out of the system,” he said on election night. “I think they should also look at the funding mechanisms for judicial races.”

The State Bar’s Board of Governors faulted both Benjamin and McGraw for their race’s tone in an October resolution, urging both to follow the ethical rules governing judicial candidates.

Among other provisions, the Code of Judicial Conduct bars candidates from “making statements that appear to commit the candidate regarding cases, controversies or issues likely to come before the court.” It also prohibits them from raising money directly, requiring them instead to form committees to seek contributions.

Retired Supreme Court Justice Thomas McHugh, now a senior status judge, believes the system should focus on tightening those rules.

“The question arises, should judicial elections be conducted this way,” McHugh said.

Morgantown lawyer Allan Karlin said the State Bar should wield its influence to force judicial candidates to run clean campaigns. A McGraw supporter, Karlin said mudslinging occurs in nonpartisan races — and even in the appointment system advocated by Bailey.

In California , supreme court justices are appointed, but must run for election to retain their seats. Karlin cited the 1986 defeat of three justices following a negative ad campaign over death penalty cases.

“You’re not going to get rid of the problem,” he said.