Lawyer Investigates Judicial Selection

The Wheeling News-Register, Nov. 14, 2004

After this year's acrimonious and expensive campaign in West Virginia for a seat on the Supreme Court, the time may be right for changing the state's system of the partisan election of judges.  Wheeling attorney John Bailey may play a key role in that process. He was appointed earlier this year by the West Virginia State Bar to head the 20-member Judicial Selection Review Committee to look into how judges are selected in West Virginia . The committee is expected to recommend what changes, if any, should be made to the current system.

Bailey is part of the law firm of Bailey Riley Buch and Harman. He also is the immediate past president of the West Virginia State Bar.

Currently, West Virginia elects judges in partisan elections, where judicial candidates run committed to political parties in primary elections and those primary election winners run in a general election with their respective political party designations listed on the ballot next to their names.

Bailey said the Mountain State is one of only six states that select their judges through partisan elections. He said 15 other states elect judges in non-partisan elections and 29 states select their judges through some kind of appointment process.

Bailey's committee will first meet in Charleston on Dec. 8 and in several other meetings to deliberate on the question of whether the state's judicial selection process should be changes and if so, to what new system.

He expects a recommendation to be finalized by his committee by late spring, after which time the full 25-member governing board of the West Virginia State Bar will vote on whether to accept the recommendation.

If the state bar accepts and approves the recommendation from the committee, Bailey said it would just be something that lawmakers could take under advisement. "It will have no legal effect."

The West Virginia Legislature already has the authority to change the election of judges from a partisan basis to a non-partisan basis, Bailey said. He said the state Constitution provides the legislative authority to make that change.

A constitutional amendment would be needed to change the selection of judges to an appointment process, Bailey noted. He said that would require the Legislature to approve the measure as well as a majority of voters in a statewide referendum.

As for Bailey's preference on judicial selection, he said, "It's something I'm keeping an open mind on but I'm really leaning to an appointment system.

"I really don't think non-partisan (election of judges) does away with some of the ills we've seen in the last election," Bailey said. "We've seen one man spend $1.7 million in the election and partisan or non-partisan, that can still happen."

Bailey was referring to this year's Supreme Court race in which Republican Brent Benjamin defeated incumbent Democrat Justice Warren McGraw. The level of interest and money from outside groups in that campaign drew national attention.

Don Blankenship, to whom Bailey referred, donated at least $1.7 million to a so-called 527 group, "And for the Sake of the Kids," which ran negative advertisements against McGraw. Another 527, "West Virginia Consumers for Justice," funded mostly by trial lawyers, spent about $1 million on political advertisements critical of Benjamin.

"I think when you have a system where that kind of money is spread around and the negative campaigning, I don't think this does much for the confidence in the system and this is what I'm concerned about," Bailey said.

Politics will always play a role in determining a judicial appointment, Bailey said, even with non-partisan elections or appointments of judges. However, he believes an appointment process would allow diverse interests such as labor and business to recommend a judicial appointee that is not disliked greatly by any one group.

"Who can we come up with who is at least marginally acceptable to everyone, one way or the other?" Bailey said.

A commission could be created to recommend to the governor a judicial appointment, Bailey said. He pointed out the commission could include representatives from various groups such as lawyers, business people, educators, labor leaders and others.

"We envision some sort of commission in which all these groups are together," he said. "When that person comes out of that system, hopefully he won't be considered a tool of business or a tool of labor because he would have been vetted by all those groups."

Whatever system is favored by Bailey's committee, he said the details of any new judicial selection process would have to be worked out over the next several months.