Ugly Race May Fuel Changes In Judge Selection

Charleston Daily Mail, November 5, 2004

Both campaigns in this year's mud-splattered Supreme Court race say they are for judicial election reform. They might get their wish. The state Bar has appointed a committee to recommend changes, and House Speaker Bob Kiss says it's time for the Legislature to take a hard look at how West Virginia 's judges reach the bench.

"Let a call go out for election reform. Without it, the people of West Virginia will be shut out," Randolph McGraw, the son of defeated Supreme Court Justice Warren McGraw, said on election night.

The opposing campaign agrees. "There needs to be a change in the way judges and justices are selected," said Rob Capehart, the campaign manager for victorious Supreme Court candidate Brent Benjamin.

Benjamin won by almost 47,000 votes, but his campaign says the time is right for change. “We worked within the current system, but I think the time is right for a public discussion about it. It's something perhaps the Legislature could look at," Capehart said.

West Virginia is one of few states where voters select courts directly. Most states either have appointed judges and justices or a system of appointments followed by elections that allow voters to retain judges or boot them off the bench.

In the Supreme Court campaign that ended Tuesday, independent groups of business and coal interests repeatedly blasted Warren McGraw as a "radical" who is soft on crime. They spotlighted his role in reversing a 15- to 35-year sentence for a sex offender.

Another group funded largely by plaintiffs' attorneys characterized Benjamin as anti-Bible and criticized his law firm for defending a Pennsylvania school system that is being sued for hushing sexual accusations against a principal who later was charged with killing a student in West Virginia.

Both sides have criticized the tone of the campaign, the amount of money that went into it and the perception that the judicial could be influenced on the bench by heavy donors.

"Yeah, there's some general dissatisfaction with the current system, but there's no clear consensus about what it should change to," said Kiss, the House speaker.

The Legislature could vote to continue elections but make them nonpartisan. A more difficult change would mean amending the state Constitution to allow judges and justices to be appointed.

Some states that have adopted an appointment process have included a mechanism allowing voters to decide whether to keep judges or to kick them out. Another judge would be appointed if voters decide to knock off the current one.

Kiss said the Legislature probably would rely on the expertise of the state Bar before pushing for major changes. "Until there's a consensus that it's broken and here's how to fix it, I think you'll see the Legislature not taking action," said Kiss, D-Raleigh.

The state Bar already is embarking on a study of judicial reform. The Bar's committee delayed meeting until after the election, but now its 20 judicial review committee members hope to recommend the best way to fill judicial robes.

"We've got to do something," said Charlie Love, president of the state Bar. "What happened in this last election on both sides ought to be enough to turn the stomachs of everybody. What happened didn't do anything to increase the confidence of anybody in the public or in the Bar. In an odd, peculiar way this has kind of worked to the advantage of people who would like to see change in the system."

The trick is reaching consensus on a new system and then getting state leaders to push for it, Love said.

"It's the partisanship that's the real issue. Judges are not supposed to have a constituency. They're supposed to be impartial, supposed to make decisions based upon the law, not who is in front of them. Judges are supposed to be people who are impartial," he said.

"The difficulty with the selection process is, it will be political no matter how you do it. What you want to do is to minimize, to the extent you can, the politics involved in the election process."

Greenbrier Circuit Judge Jim Rowe, McGraw's opponent in the Democratic primary, said he favors a new system.

"As a previous candidate for a contested statewide judicial race, I can tell you the roles of being a candidate and a judge are not entirely compatible," Rowe said. "There are competing considerations there. At the very least you have a wall between the candidate and the campaign, but all you (judicial candidates) have to do is pick up a newspaper to see so-and-so contributed so much money."

Without changes, there will be little way to eliminate the connection between candidates and fund raising, said Bill Bissett , the director of West Virginia Citizens Against Lawsuit Abuse. "Although there is supposed to be no connection between candidates and fund raising, I've never heard of any that actually isn't," Bissett said. "What's worse is people who make money off the court system are not only heavily financing specific candidates but actually raising money for candidates on their legal letterhead with the idea of keeping their Supreme Court."

Public confidence in the judicial system erodes when people see heavy donations to the candidates, Bissett said. "With all the money spent on both sides, there has to be a better way to determine who will be the best judge instead of who can run the best political campaign," he said.